Re a Barrister; Ex parte Prothonotary [1957] HCA 46

Re a Barrister; Ex parte Prothonotary [1957] HCA 46

By majority, the bare fact that the appellant had been convicted of manslaughter and sentenced to two years' imprisonment with hard labour for a road collision did not necessarily establish that he was not a fit and proper person to remain on the Roll of Barristers. The order removing his name was therefore set aside, but because it was inappropriate for him to hold himself out as entitled to practise while serving the sentence, and because the court had power to suspend, he was suspended from practice during the continuance of his present imprisonment.

Jurisdiction
Australia
Procedural Posture
Appeal in Barrister Disciplinary Proceedings / Appeal From an Order of the Supreme Court of New South Wales Removing the Appellant's Name From the Roll of Barristers of New South Wales
Outcome
Appeal allowed. Order of the Supreme Court of New South Wales set aside. In lieu thereof the appellant was suspended from practice during the continuance of his present imprisonment.
Legal Topics
['disbarment' 'suspension From Practice' 'fit and Proper Person' 'barrister Convicted of Manslaughter' 'effect of Criminal Conviction on Right to Practise']
['legal Profession' 'professional Discipline' 'criminal Law'] ['disbarment' 'suspension From Practice' 'fit and Proper Person' 'barrister Convicted of Manslaughter' 'effect of Criminal Conviction on Right to Practise']

Case Brief

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Procedural Posture

Appeal in Barrister Disciplinary Proceedings / Appeal From an Order of the Supreme Court of New South Wales Removing the Appellant's Name From the Roll of Barristers of New South Wales

Legal Issues

  1. 1 ["Whether the appellant's conviction for manslaughter and sentence of imprisonment with hard labour required or justified removal of his name from the Roll of Barristers of New South Wales." 'Whether, in deciding whether a barrister is fit and proper to remain on the roll, the court may consider the facts and circumstances behind the conviction and the conduct of the criminal trial.' "Whether suspension from practice during the continuance of the appellant's imprisonment was available and appropriate instead of disbarment."]

Ratio Decidendi

By majority, the bare fact that the appellant had been convicted of manslaughter and sentenced to two years' imprisonment with hard labour for a road collision did not necessarily establish that he was not a fit and proper person to remain on the Roll of Barristers. The order removing his name was therefore set aside, but because it was inappropriate for him to hold himself out as entitled to practise while serving the sentence, and because the court had power to suspend, he was suspended from practice during the continuance of his present imprisonment.

Court Disposition

Appeal allowed. Order of the Supreme Court of New South Wales set aside. In lieu thereof the appellant was suspended from practice during the continuance of his present imprisonment.

Orders

  • ['Appeal allowed.' 'Order of the Supreme Court of New South Wales set aside.' 'In lieu thereof order that the appellant be suspended from practice during the continuance of his present imprisonment.']