THE NEW SOUTH WALES BAR ASSOCIATION v SMITH [1991] NSWCA 215

THE NEW SOUTH WALES BAR ASSOCIATION v SMITH [1991] NSWCA 215

By majority, the original order striking the opponent's name from the Roll of Barristers stands. The Court found that the alleged 'car park conversation' did not occur and the opponent knowingly misled both the magistrate and the Court regarding his instructions to appear, amounting to professional misconduct warranting removal from the roll. Factual errors in the original reasons did not materially affect the outcome; new evidence was not sufficient to warrant a different result.

Parties
Claimant: THE NEW SOUTH WALES BAR ASSOCIATION; Opponent: SMITH
Jurisdiction
Australia
Judgment Date
04 July 1991
Procedural Posture
Disciplinary Application / Application to Review and Set Aside Order Prior to Entry
Outcome
Application dismissed with costs
Legal Topics
Professional Misconduct, Jurisdiction to Reconsider Orders, Disciplinary Proceedings, Striking Off Roll
Legal Profession Professional Misconduct Jurisdiction to Reconsider Orders Disciplinary Proceedings Striking Off Roll

Case Brief

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Parties

THE NEW SOUTH WALES BAR ASSOCIATION

Claimant

SMITH

Opponent

Procedural Posture

Disciplinary Application / Application to Review and Set Aside Order Prior to Entry

Legal Issues

  1. 1 Whether the Court should set aside an order removing a barrister from the roll due to alleged factual error and new evidence
  2. 2 Whether new evidence or alleged factual error required variation of the orders

Ratio Decidendi

By majority, the original order striking the opponent's name from the Roll of Barristers stands. The Court found that the alleged 'car park conversation' did not occur and the opponent knowingly misled both the magistrate and the Court regarding his instructions to appear, amounting to professional misconduct warranting removal from the roll. Factual errors in the original reasons did not materially affect the outcome; new evidence was not sufficient to warrant a different result.

Court Disposition

Application dismissed with costs

Orders

  • The order to remove the opponent's name from the Roll of Barristers is confirmed.
  • Application to review and set aside the orders is dismissed with costs.