Prothonotary of the Supreme Court of New South Wales v Fox

1. [1]

   THE COURT: By summons filed on 8 December 2025, the Prothonotary of the Supreme Court of New South Wales seeks orders in the inherent jurisdiction of the Court for the removal of the name of the respondent, Mr Ian Russell Bradfield Fox, from the roll of Australian Lawyers (the Roll) maintained by the Supreme Court. The application follows the respondent’s conviction in 2024 for criminal conduct involving the solicitation and transmission of child abuse material, for which the respondent was sentenced to a term of imprisonment.

2. [2]

   The summons was served on the respondent in December 2025 but he did not file an appearance. On 5 February 2026, in correspondence with a solicitor acting for the applicant, the respondent indicated that he consented to all orders sought by the applicant “other than as to costs”. On 13 May 2026, he filed submissions and an affidavit in relation to the issue of costs. Accordingly, this matter, including the issue of costs, is to be determined on the papers.

3. [3]

   Notwithstanding the respondent’s consent, this Court must be independently satisfied that the respondent is not presently fit to practise and is likely to be unfit in the indefinite future such that the removal of his name from the Roll is appropriate: see Council of the Law Society of New South Wales v XX [2025] NSWCA 4 at [15] (Bell CJ, Payne and Stern JJA) and cases cited there. In doing so, this Court should make findings of fact in appropriate detail on significant matters concerning the conduct the subject of the application: Council of the NSW Bar Association v Power (2008) 71 NSWLR 451 at 459; [2008] NSWCA 135 (Hodgson JA, Beazley and McColl JJA agreeing).

Findings of fact

1. [4]

   The principal evidence on which the applicant relies comprises admissions deemed by r 17.3(2) of the Uniform Civil Procedure Rules 2005 (NSW) to have been made by the respondent as a result of his not serving a notice disputing any facts the subject of a notice to admit facts served on him by the applicant. That is an appropriate use of this procedure and one which has been approved by this Court in the past: see Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 (Livanes) at [13]-[18] (McColl JA, Campbell and Meagher JJA agreeing); Prothonotary v Comeskey [2018] NSWCA 18 at [44] (Meagher JA, Simpson JA agreeing). What follows is drawn from the admitted facts, and an affidavit of a solicitor acting for the applicant, Kristian Metzler, sworn on 2 April 2026.

2. [5]

   The respondent was born on 15 December 1957. He was admitted as a lawyer in 1984, first in the Australian Capital Territory on 17 February 1984 and then in New South Wales on 6 July 1984. His name remains on the roll in both jurisdictions.

3. [6]

   The respondent held a practising certificate issued by the Council of the Law Society of New South Wales from 23 August 1984 to 12 October 2023. He worked as a lawyer at Henry Davis York, Minter Ellison / Minter Ellison Morris Fletcher, Dunhill Madden Butler, Clayton Utz, and finally Eakin McCaffery Cox, where he became a partner in August 2018.

4. [7]

   The respondent’s offending was discovered when members of the Australian Federal Police executed a search warrant at the respondent’s residence on 15 December 2022. The police seized an iPhone 8 belonging to the respondent and observed a laptop with two open browser tabs containing textual child abuse material. The respondent provided the police with the passwords to his iPhone and Facebook messenger account, on which the police observed child abuse material. The respondent was placed under arrest on the same day.

5. [8]

   According to the laptop’s browser history, on 14 December 2022 the respondent had accessed two fictional short stories, one written from the perspective of a 12-year-old female child describing incestual sexual activity with a 10-year-old female child and adult females, and another which followed a female child around the age of 11 until her graduation from high school and described the child engaging in sexual activity with other children and adult females.

6. [9]

   The social media application WhatsApp was installed on the respondent’s iPhone. Although conversation records in the application had been deleted, the police were able to recover 1048 pages of WhatsApp chats (with some words appearing out of order due to the content of the messages having been scrambled), which showed that the respondent was a member of at least 26 different private and group conversations, to which the respondent contributed between 500 to 600 messages. The members of those chats shared content which included, relevantly:

   1. (1)

      Invitations to adult group sex chats;

   2. (2)

      Advertisements for personal sexual massages;

   3. (3)

      Requests for adult pornography, to swap intimate adult images and to swap intimate adult videos;

   4. (4)

      Sexual communication between parties and about sexual fantasies such as “incest”, “family”, “mother and son”, “anal”, “tampons”, “urination” and “dirty underwear”; and

   5. (5)

      Requests for sex.

7. [10]

   The recovered messages also show that between 9 February 2022 and 19 July 2022, the respondent used Facebook Messenger and WhatsApp repeatedly to solicit child abuse material from, and occasionally transmit child abuse material to, users in both a group chat and private chat setting.

8. [11]

   Communications sent by the respondent to other WhatsApp users included:

   1. (1)

      On 19 February 2022, a private message to an unidentified number asking, “do u fuck young” and “so sexy they how young are”.

   2. (2)

      On 6 March 2022, messages to someone identified as “Jose”, with whom the respondent had communicated previously, asking, “do you have young anymore” and “ok of young girls you have more any pics”. The respondent sent further messages to “Jose” on 9, 10 and 13 March 2022, which included a message on 10 March 2022 asking, “hot any ones younger that is”.

   3. (3)

      On 12 June 2022, messages to a group chat asking for “group child movies or” and “any child videos”.

   4. (4)

      On 19 July 2022, a message to a group chat stating, “please cp yes love videos”.

9. [12]

   Examination of the Facebook Messenger application on the respondent’s iPhone showed that between 14 April and 18 June 2022, the respondent exchanged messages with Facebook users “Shoaib Khan” and “Luz Cales” in which the respondent solicited and transmitted child abuse material.

10. [13]

    Records of messages between the respondent and “Shoaib Khan” show repeated requests within a short period of time from the respondent for videos.

11. [14]

    On 27 April 2022, the respondent transmitted to “Shoaib Khan” a video file 33 seconds in duration depicting animated child abuse material. The video showed sexual activity between an adult female and a male child aged four to six years.

12. [15]

    On 17 June 2022, the respondent transmitted to “Luz Cales” a video 56 seconds in duration depicting child abuse material, namely a pubescent male aged 14 to 17 years engaging in sexual activity with a young female of an unknown age.

13. [16]

    On 7 May 2024, the respondent was convicted and sentenced in the District Court of New South Wales in respect of two charges of offending contrary to s 474.22(1) of the Criminal Code (Cth) (Criminal Code) involving the transmission and solicitation of child abuse material using a carriage service. The respondent was sentenced to 19 months’ imprisonment to commence on 27 March 2024. In passing that sentence, the District Court took account of a third charge under s 474.22(1) of the Criminal Code of access child abuse material using a carriage service, which related to the respondent’s conduct in accessing text-based child abuse material on his laptop: see s 16BA of the Crimes Act 1914 (Cth) (Crimes Act). The sentence was partially suspended upon the respondent entering into a self-recognizance in the sum of $5,000 without security pursuant to s 20(1)(b) of the Crimes Act.

Relevant principles

1. [17]

   The inherent power of this Court to order the removal of the name of a person from the Supreme Court roll is long-standing. It is preserved in s 264 of the Legal Profession Uniform Law (NSW) and expressly reflected in s 23.

2. [18]

   The question to be determined upon an application for removal of the name of a legal practitioner from the roll is whether the practitioner is a fit and proper person to remain as a member of the profession: Re Davis (1947) 75 CLR 409 at 416; [1947] HCA 53 (Latham CJ). That question is to be determined at the time of the hearing: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 (A Solicitor) at [21]; [2004] HCA 1 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

3. [19]

   Removal from the roll will be appropriate if the Court is satisfied that the practitioner is likely to be unfit for the indefinite future, in the sense that it is not apparent whether, and if so when, the practitioner might be suitable for reinstatement to the roll: see Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655 at [99]; [2020] NSWCA 163 (Leeming JA, Macfarlan and McCallum JJA agreeing); Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [52]-[53] (Campbell JA, Hodgson JA and Handley AJA agreeing).

4. [20]

   As is frequently observed, the purpose of disciplinary proceedings such as this application is the protection of the public and its confidence in the legal profession, not the punishment of the individual: see Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250–251; [1992] HCA 24 (Deane, Dawson, Toohey and Gaudron JJ). That purpose has aspects of both public accountability and deterrence: Council of the Law Society of New South Wales v Green [2022] NSWCA 257 (Green) at [59] (Ward P, Kirk JA and Griffiths AJA). For that reason, as this Court (Allsop P, Giles and Hodgson JJA) explained in Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255 (Einfeld) at [16]:

5. [21]

   While the fact of a criminal conviction and sentence is not necessarily sufficient to disqualify a person from continuing as a member of the legal profession, the defects of character revealed by the criminal conduct, and the disgrace flowing from conviction, may be incompatible with practice: Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 at [14] (Basten, Meagher JJA and Simpson AJA), citing Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 288 (Fullagar J), 298 (Kitto J); [1957] HCA 46. In assessing the impact of the conviction and sentence on the practitioner’s fitness to practice the Court must consider the detailed subjective and objective circumstances of the offending behaviour: see A Solicitor at [22]. That is clearly so in relation to convictions relating to child abuse material. As Warren CJ explained in Legal Services Board v McGrath (No 2) (2010) 29 VR 325 at [12]; [2010] VSC 332:

6. [22]

   Where, as here, the practitioner does not come forward with evidence on matters concerning his fitness to practise, the failure to do so means that inferences from proved facts can be drawn more safely because the practitioner has failed to give any explanation of matters peculiarly within his knowledge: Einfeld at [23]; see also Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73 at [25] (Allsop P, McColl and Young JJA). It also means that the practitioner has not placed any explanation before the Court which would in any manner mitigate the objective seriousness of his offences: see Livanes at [46].

Conclusion

1. [23]

   The respondent’s conduct occurred over a substantial period of time (11 months) up to the date of his arrest. It was not an isolated lapse in judgment that can be explained by the particular circumstances in which the respondent found himself. The conduct was serious in that it included the viewing and sharing of explicit child sexual abuse photographs and videos. It also involved communications with others through a number of chats with other users concerning that material. Conduct of that type is particularly serious because it creates a demand for child sexual abuse material which encourages the abuse of children, who are the most vulnerable members of society, and in turn leads to serious psychological, if not physical damage, that is so often an incidence of it. The degree of moral turpitude involved in that conduct by a member of the legal profession and its serious consequences has a tendency to bring the profession as a whole into disrepute and undermine the public’s confidence in the moral integrity of the profession.

2. [24]

   The respondent’s conduct came to an end only when he was arrested. Consequently, there is no reason to think that the respondent has been rehabilitated, and it is not possible to say if or when the respondent will ever be rehabilitated to the point where it would be appropriate for him to be readmitted as a solicitor. The respondent has led no evidence in that regard.

3. [25]

   Taking those matters into account, we are satisfied that the respondent's name ought to be removed from the Roll.

Costs

1. [26]

   The applicant seeks an order that the respondent pay the costs of the applicant in this proceeding. The applicant does not in this case seek an order that those costs be payable on an indemnity basis. The respondent does not oppose an order that he pay the applicant’s costs, but submits that the Court should make an order that he pay the applicant’s costs on the ordinary (rather than an indemnity) basis and in instalments.

2. [27]

   In support of his application for an order that any costs be payable in instalments, the respondent swore an affidavit in which he deposes that he has assets of approximately $337,000 comprising the following:

3. [28]

   The respondent says that he owes a debt to the Australian Taxation Office of $30,000.

4. [29]

   The respondent gives evidence that he currently receives the age pension of $1,377.80 per fortnight which he supplements by working as a casual driver, normally only during holidays, for which he is paid $25 per hour plus superannuation and by collecting recyclable cans and plastic bottles from yellow bins. He deposes that his ordinary weekly expenses are approximately $480.

5. [30]

   The usual order in relation to costs in cases of this kind is that costs follow the event: see, for example, Green at [97]-[99]; Council of the Law Society of New South Wales v Ghobrial [2024] NSWCA 307 at [21]; The Prothonotary v X [2024] NSWCA 251 at [72]; Council of the Law Society of New South Wales v Chalabian [2025] NSWCA 255 at [42]. This reflects the fact that proceedings of this kind are the necessary and inevitable consequence of the conduct of the practitioner in question. Even where, as here, a practitioner consents to orders for the removal of his or her name from the Roll, those orders cannot be made by consent. The Court must be satisfied that it is appropriate to make the orders sought, including by carefully examining the whole of the conduct giving rise to the application. It follows that the applicant will necessarily incur costs in making the application and that the respondent’s consent, of itself, is not a reason to limit or qualify the applicant’s entitlement to a costs order that follows the event. There is no reason to depart from those principles in this case.

6. [31]

   As for the respondent’s financial circumstances, whether a costs order should be structured in a way that takes account of the cost payer’s financial circumstances will depend on a number of considerations including the amount of those costs as ultimately agreed or assessed, whether and if so how the successful party chooses to enforce the debt and what proposals, if any, the cost payer has made to pay the debt: see Council of the Law Society of New South Wales v Hislop [2019] NSWCA 302 at [8] (Bell ACJ, Barrett AJA agreeing).

7. [32]

   This may be an appropriate case in which to allow the respondent to pay the applicant’s costs over time. But whether or not it is will depend on the answer to those questions and on the respondent’s financial position at the time the costs order is sought to be enforced. In the circumstances, we think the appropriate order is to give the respondent liberty to apply in relation to the question whether an order should be made for the payment of costs in instalments.

Orders

1. [33]

   The orders of the Court therefore are:

   1. (1)

      Declare that the respondent is not a fit and proper person to remain on the Roll of Australian Lawyers;

   2. (2)

      Order that the name of the respondent be removed from the Roll of Australian Lawyers;

   3. (3)

      Order that the respondent pay the costs of the applicant in this proceeding;

   4. (4)

      Grant liberty to the respondent to apply on 14 days’ notice for an order that the costs payable in accordance with order (3) be paid in instalments.