THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION v. DAVISON

HIS HONOUR : The plaintiff, The Council of the New South Wales Bar Association ( “the Bar Council” ), commenced proceedings against the defendant, William Roy Davison, by summons filed on 15 August 2005. Subsequently, an amended summons was filed on 14 September 2005 and a Further Amended Summons on 5 October 2005. The plaintiff contends that the defendant has practised as a barrister without being the holder of a current Practising Certificate issued by the Bar Council under Part 3 of the Legal Profession Act 1987 and by so doing has contravened the provisions of s.25(1) of that Act.

The Bar Council relied upon the affidavit of Rosemary MacDougall sworn 16 August 2005 and the material constituting Exhibits A to K.

The plaintiff claims declaratory relief and a restraining order to prevent the defendant from practising as a barrister in contravention of s.14(3) of the Legal Profession Act 2004 . The precise nature of the relief and orders sought is set out in paragraph [15] and is the subject of consideration later in this judgment.

The period in which it is claimed the defendant carried on practice as a barrister is the period from about 10 November 2001 until 30 September 2005. The reference to the “relevant period” in later paragraphs is a reference to that period.

This Court has the power to grant injunctive relief on such terms as it thinks appropriate restraining a person from engaging in specified conduct pursuant to the provisions of s.720 of the Legal Profession Act 2004 . The operation of that Act commenced on 1 October 2005. Accordingly, this case is the first occasion on which those provisions have been invoked.

On 14 September 2005, the defendant consented to an interlocutory injunction sought by the Bar Council. The terms of the orders made by the Court (Brereton, J.) were formulated in short minutes of orders. A note thereto records that the orders were not intended to interfere with the performance by the defendant of any general legal work for Walker Corporation Pty. Limited insofar as it is done by him:- (a) in his capacity as an employee of Walker Corporation Pty. Limited; and (b) in the ordinary course of his employment by Walker Corporation Limited; and (c) for which he receives no fee, gain or reward for so doing other than his ordinary remuneration as an employee of Walker Corporation Pty. Limited, whether or not such relationship constitutes a relationship of employment.

The terms of 6(a), (b) and (c) reflect the provisions of s.14(3) of the Legal Profession Act 2004.

Ms. Christine E. Adamson, SC., with Ms. S.E. Pritchard, of counsel appeared on behalf of the plaintiff Bar Council pursuant to s.51(1)(b) of the Legal Profession Act 1987 . The defendant was self-represented. Mr. Davison opposed the relief claimed in the Further Amended Summons. 1. Factual background

The defendant was admitted to practice as a legal practitioner on 28 May 1965. Having practiced as a solicitor in this State for almost 15 years, he was admitted to practice as a barrister on 7 March 1980. Mr. Davison practised for several years both as junior and senior counsel specialising in the fields of local government law, environmental and planning law and in compulsory acquisition compensation claims. A significant part of his practice was in the Land and Environment Court of New South Wales, the jurisdiction of which is specified in Part 3 of the Land & Environment Court Act 1979 (NSW) . He continued to practice as a barrister until the cancellation of his Practising Certificate by resolution of the Bar Council on 1 November 2001 which took effect at midnight on 9 November 2001.

On 2 July 2004, the Council of the New South Wales Bar Association commenced proceedings in the Administrative Decisions Tribunal, Legal Services Division, against the defendant by the filing of an information pursuant to the provisions of s.167 of the Legal Profession Act 1987 . On 18 August 2004, at the request of the solicitor for the Bar Council, the Tribunal issued a summons to produce documents to Sydney Development Services Pty. Limited. The defendant’s wife, Vicki Jean Davison, is the sole director and shareholder of that company. On 8 February 2005, the Tribunal also granted leave to the Bar Council to issue certain Summonses to Produce Documents. On 9 February 2005, the Tribunal issued a further summons to produce documents pursuant to s.84 of the Administrative Decisions Tribunal Act 1997 , requiring the defendant to produce a range of specified documents. He subsequently produced two CDs. Following the making of orders for access, arrangements were made for records contained on the CDs to be printed. On 30 June 2005, by consent, the Tribunal made orders in relation to the documents contained on the two CDs as follows:- “(1) Upon the Informant by its Counsel undertaking to use the documents produced in these proceedings by William Roy Davison for the purposes only of exercising its functions under the Legal Profession Act (being a purpose that is collateral to these proceedings), the Informant be released from its implied undertaking to the Tribunal not to use documents produced in these proceedings by the respondent, William Roy Davison. (2) The Tribunal notes that the respondent, William Roy Davison, has given his free and informed consent to the order in paragraph 1 above”’

Following the commencement of proceedings in this Court, the Bar Council served subpoenae upon Walker Corporation Limited and Sydney Development Services Pty. Limited. The Council also served two Notices to Produce on the defendant. The documents produced in answer to the subpoenae and the Notices were admitted into evidence in these proceedings as Exhibit G.

According to the evidence, the defendant’s wife resides with her husband and their residence is also the principal place of business of Sydney Development Services Pty. Limited. That company commenced under its present name on 23 November 2001 and it was on that date that the defendant’s wife was appointed its sole director and secretary.

It is not disputed that in and after December 2001, Sydney Development Services issued tax invoices in respect of professional services rendered by the defendant. A central question in the present proceedings is the nature or character of the services that have been provided by the defendant to third parties since his Practising Certificate was cancelled.

A considerable body of evidence was tendered on behalf of the plaintiff and its case is essentially a documentary one. 2. The relief claimed

The plaintiff in its Further Amended Summons claims relief in the following terms:- “1. A declaration that, since on or about 10 November 2001, the defendant has practised as a barrister without being the holder of a current practising certificate issued by the Bar Council under Part 3 of the Legal Profession Act 1987, in contravention of s.25(1) of the Legal Profession Act 1987. 2. Further, a declaration that the conduct described in Prayer One was done wilfully and without reasonable excuse, and accordingly that the defendant is guilty of professional misconduct within the meaning of s.25(4) of the Legal Profession Act 1987. 3. An order pursuant to s.720 of the Legal Profession Act 2004 restraining the defendant from practising as a barrister in contravention of s.14(3) of the Legal Profession Act 2004 by:- (a) providing, for a fee, as defined in Schedule 1 (“ Fee ”), advice involving the application of legal expertise in relation to a claim under any legislation or environmental planning instrument, or at common law; (b) providing, for a Fee, advice involving the application of legal expertise in relation to the preparation and conduct of any proceedings, as defined in Schedule 1 (“ Proceedings ”); (c) providing, for a Fee, advice involving the application of legal expertise, and including statutory interpretation and the application of case law, in relation to rights and obligations under any legislation or environmental planning instrument or at common law; (d) providing, for a Fee, advice involving the application of legal expertise in relation to the evidence of any expert or other witness in connection with a claim under any legislation or environmental planning instrument, or at a common law, or Proceedings; (e) providing, for a Fee, advice involving the application of legal expertise in relation to a decision, judgment, order or determination in Proceedings. 4. Costs.”

In Schedule 1 to the amended summons, the following terms are defined:- “ Fee means any hourly or daily remuneration, payment for the reimbursement of expenses, retainer, salary, success fee, expectancy, direction of remuneration to a company for the provision of services by the defendant, or other form of valuable consideration. Proceedings means proceedings in any court, including any body described as a court, or any other judicial or statutory tribunal, statutory investigation, mediation, or compromise negotiation.”

I will return to the question of the relevance of the scope of the relief sought in paragraphs 3(a), (b), (c), (d) and (e) to the nature of the work which the Bar Council claims was undertaken in the relevant period and which it maintains constituted the work of a barrister (see paragraph [47]). 3. Legal Profession Act 1987

The Legal Profession Act 1987 operated during the whole of the period in which it is alleged the defendant practised as a barrister without being the holder of a current Practising Certificate issued by the Bar Council under Part 3 of the Act.

Section 25(1) of the Act is contained within Part 3, Legal Practice , Division 1, Practising Certificates . It is in the following terms:- “A legal practitioner whose sole or principal place of legal practice is this State must not practice as a barrister or solicitor and barrister without being the holder of a current practising certificate.”

Section 25(4) provides:- “A legal practitioner or interstate legal practitioner who contravenes this section wilfully and without reasonable cause is guilty of professional misconduct.”

By s.3 a legal practitioner means a person enrolled in the Supreme Court as a legal practitioner.

Section 27(1) provides:- “The Bar Council may, on application, grant a practising certificate to a legal practitioner authorising the practitioner to practice as a barrister.”

I will refer briefly to some additional provisions in Part 3.

Section 32(1) authorises the issue of a certificate either unconditionally or subject to conditions.

Section 33 specifies the conditions that may be attached to the practising certificate of a barrister or solicitor.

Section 34 of the Act specifies conditions of particular kinds that may be attached to the practising certificate of a barrister.

Section 38G(1) states that practice as a barrister is subject to the Barristers’ Rules (defined as meaning rules made under the 1987 Act by the Bar Council: s.3(1) of that Act) and that practice as a barrister is not subject to any other rules, practice, guidelines or rulings of the Bar Association or Bar Council.

Section 57A provides that the Bar Council may make rules for or with respect to practice as a barrister. The power to make rules is not limited to the matters for which the Act specifically authorises the making of barristers’ rules (s.57A(2)).

”Barrister” is relevantly defined in s.3 of the Legal Profession Act to mean “a legal practitioner who holds a current practising certificate as a barrister”.

Section 57D provides that “barristers’ rules” are binding on barristers.

In Prothonotary of the Supreme Court of New South Wales v. McCaffery [2004] NSWCA 420, McColl, JA. with whom Sheller and Beazley, JJA. agreed, observed that a practising certificate means that the “barrister” is subject to the Barristers’ Rules made under the Legal Profession Act by the Bar Council: s.38G. Furthermore, prior to issuing a practising certificate, the Bar Council is required to be satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy: s.38R. There are other aspects of the Legal Profession Act which demonstrate the significance of a barrister holding a practising certificate. McColl, JA. also stated in McCaffery that the regulation of the profession through practising certificates seeks to uphold and maintain professional standards and to provide a safeguard for the public (at [38]). 4. Contentions and issues arising on the Further Amended Summons

In relation to the declaratory relief sought in paragraph 1 of the Further Amended Summons, the essential contentions in the plaintiff’s case are:- (a) that the defendant has practiced as a barrister; (b) that he has done so without being the holder of a current practising certificate issued by the Bar Council under Part 3 of the Legal Profession Act .

In relation to the declaratory relief sought in paragraph 2 of that Summons, the plaintiff’s contends:- (a) that the defendant has contravened the provisions of s.25(1) by engaging in conduct specified in the section; (b) that he has done so “wilfully and without reasonable excuse” : s.25(4).

I will return later in this judgment to separately consider each of these contentions. 5. “Practice as a barrister …”

There is no definition in the Legal Profession Act 1987 or in the Legal Profession Act 2004 of this key phrase. It is essential that its meaning and scope be determined, at least to the extent that is necessary for the purpose of evaluating the facts in the present proceedings.

The work of a barrister may embrace appearance work in courts or tribunals involving advocacy skills. It may also include chamber work involving both litigious and non-litigious legal work.

The New South Wales Barristers’ Rules made under s.57A of the Legal Profession Act 1987 , in particular, Rule 74, under the sub-title “Barristers’ work” outlines the nature of a barrister’s professional work in restrictive terms as follows:- “74. A barrister must confine the barrister’s professional work to:- (a) appearing as an advocate; (b) preparing to appear as an advocate; (c) negotiating for the client with the opponent to compromise the case; (d) representing the client in a mediation; (e) giving legal advice; (f) advising on document to be used in the client’s affairs; (g) acting as a referee, arbitrator or mediator; and (h) carrying out work properly incidental to the kinds of work referred to in (a) to (g).”

In general terms, the work of a barrister in relation to litigation may be taken as including the following:- • providing advice on legal rights or entitlements (relevant to a right to prosecute or defend proceedings); • providing advice on prospects of success of litigation; • providing advice in relation to gathering evidence required for legal proceedings; • providing advice in relation to the form of and/or the presentation of evidence; • undertaking work associated with the drafting of submissions for use in proceedings; • appearances at hearings of proceedings before courts or tribunals.

Accordingly, the work generally of a barrister (whether litigious or not), may embrace:- • advice work; • the drafting of documents (including agreements, legal instruments, pleadings, correspondence, particulars of a claim or defence); • advice in relation to the compromise or settlement of disputes; • litigious work (including appearance work); • alternative dispute resolution, in particular, mediations;

Again in general terms, the work of a barrister may impact upon or affect persons or entities including:- • courts or tribunals; • other legal practitioners (whether solicitors or barristers); • statutory bodies charged with the role of performing or discharging public functions (eg., local government bodies); • clients; • witnesses.

There will sometimes be no clear boundary or bright-line between the work undertaken by legal practitioners and other professionals in certain areas of legal practice including the areas of local government and those involving environmental regulation and planning issues. Work performed in areas such as these may involve a number of professionals (including lawyers) who necessarily interact one with the other in the provision of advice to clients and in assisting them in disputes or proceedings. Accordingly, the work of a town planner, for example, may involve advising clients in both a non-litigious context and in the provision of advice in relation to legal proceedings. Their advice may draw on and expressly refer to precedent cases for the purposes of identifying and applying authoritative principles in relation to particular issues with which clients are concerned. In such cases, legal practitioners may perform overlapping or similar functions. A question can arise, as in the present proceedings, as to whether a particular aspect of work involves or requires the application of legal expertise by a legal practitioner (in particular that of a barrister), or whether it falls within the province of a town planner or of both. 6. The approach to an evaluation of the defendant’s conduct

In New South Wales, a person who holds qualifications as a legal practitioner is required to hold the necessary authorisation or certification before he or she may practice as a barrister or as a solicitor. Such authority arises upon the issue of a practising certificate formerly under the Legal Profession Act 1987 (NSW) and now under the Legal Profession Act 2004 (NSW). In the case of a barrister, the certificate plays a central part in the regulatory scheme under each of those Acts. Accordingly, as discussed earlier, once a certificate issues, a barrister is subject to the barristers’ rules: s.38G of the 1987 Act; s.81(1) of the 2004 Act. The Bar Council may not issue a practising certificate to “an insurable barrister” unless it is satisfied that there is or will be in force an approved indemnity insurance policy for that person: s.38R(1) of the 1987 Act and s.98(2) of the 2004 Act.

These provisions are in the nature of and operate as protective measures for members of the public who engage the services of legal practitioners. Certain of them are directed, as McColl, JA. in McCaffery observed (see [31] above) to upholding and maintaining professional standards of those who practice as barristers. In the event that a person undertakes practice as a barrister without a certificate, he or she does so unlawfully. The purpose of the legislative requirement is to ensure that those who practice as barristers are subject to the regulatory scheme. The work of barristers necessarily impacts upon the administration of justice. It is essential for the courts in which they practice that barristers who provide legal advice in relation to legal proceedings and/or who appear in such proceedings are subject to ethical and other constraints and to the potential sanctions that arise in the event of a breach of professional duty.

The following general propositions are noted:- (a) The provisions of s.25(1) and s.25(2) respectively prohibit:- (i) practice as a barrister or solicitor or solicitor and barrister without being the holder of a practising certificate (s.25(1)); and (ii) the holding out by a person that he or she is a barrister (s.25(2)). It is to be observed that there is no element of “holding out” in relation to a contravention of s.25(1). (b) Whether or not a person does practise as a barrister is a question of fact to be objectively determined on the evidence. (c) The determination of that question requires the court to examine any advice given or services provided in order to determine whether either may be properly characterised as practising as a barrister . (d) The evidence presented in the present proceedings, in many instances, consists of fragmentary or limited communications. Factual findings in relation to them in some instances are readily made by reason of their express terms. However, in the case of some documents, findings depend on related or surrounding documentary evidence from which inferences sometimes may be drawn.

It will be necessary to refer to some of the detailed evidence concerning the work or services provided by the defendant in and after December 2001 in order to determine whether or not in the relevant period he undertook the work of a barrister, as claimed by the plaintiff. In evaluating the evidence, it has been necessary to have regard to:- • the essential nature or substance of his conduct including the type of advice given and the nature of documents drafted or representations made by him on behalf of others; • the dealings between the defendant and others to whom he provided services, and, in particular, the context in which services were rendered as well as the nature and basis upon which fees for services were rendered and paid. • the extent to which any particular conduct of the defendant required, involved or demonstrated the application of legal knowledge or expertise; • the occasional statement made by the defendant that he was either not giving legal advice or that clients should seek legal advice on a particular matter from another qualified legal practitioner. • the fact that particular conduct should not always be examined in isolation but in the context of the operation of Sydney Development Services Pty. Limited noting, as appropriate, any pattern of conduct concerning the services rendered.

There is no evidence that the defendant appeared before any courts or tribunals in the relevant period. Appearance work and advocacy, of course, typifies the barrister’s work. But, the work of some legal practitioners who practice as barristers, including, in particular, those who specialise in certain areas of the law, may not require or involve any or a great deal of appearance work. Their practice, for instance, may involve advice work and the drafting of legal instruments or other documents. 7. “Legal advice”

The terms of the injunctive relief sought (see paragraph [15]) are directed to restraining the defendant from practising as a barrister by providing for a fee “advice” of various kinds. These may be briefly summarised in terms of paragraph 3 of the Further Amended Summons as involving advice , namely.:- “3(a) advice in relation to specified types of claims. 3(b) advice involving the application of legal expertise as to legal proceedings, namely, their preparation and conduct. 3(c) advice involving the application of legal expertise including statutory interpretation and the application of case law. 3(d) advice involving the application of legal expertise in relation to evidence in connection with a claim or proceedings. 3(e) advice involving the application of legal expertise in relation to a decision, judgment etc.”

The expression “legal advice” does not have a precise nor a narrow meaning. The defendant in a limited number of documents to which reference will later be made, stated that he could not give legal advice. These references are of importance for they could be taken as indicative of an attempt by the defendant to avoid contravening the restrictions arising under s.25(1) of the Legal Profession Act 1987 . There are, however, three observations to be made here. The first is that the defendant appears to have adopted a very narrow definition of what constitutes “legal advice” . I will return to this point below. The second is that there is a substantial amount of evidence that the defendant did provide for, a fee payable to Sydney Development Services, advice on a number of matters that can in fact be classed as “legal advice” given the scope of that expression. The third point is that, on occasions, there is evidence that the defendant did in any event provide advice on matters falling within the narrowest meaning of the expression “legal advice” . Examples include advice given by him on the meaning and application of certain statutory provisions relevant to the powers of local government authorities. This matter is discussed further in paragraphs [109] to [113]. 8. The relevant standard of proof

The Further Amended Summons raises matters and issues which, if established, will have serious repercussions on the defendant. As previously noted, one issue arising is whether the defendant wilfully and without reasonable excuse contravened the provisions of s.25(1). That issue will be considered separately later in this judgment at [164] to [178].

It has been held that the standard of proof that applies in disciplinary proceedings is that referred to in Briginshaw v. Briginshaw (1938) 60 CLR 336; see New South Wales Bar Association v. Harrison [2001] NSWADT 213 (12 December 2001, per McColl, JA. at [43]). In that case her Honour referred to the well-known passage in the judgment of Dixon, J., as his Honour then was, at 362, namely, that “the gravity of the consequences following from a particular finding” was relevant to the question whether an issue had been proved. Dixon, J., there stated that “reasonable satisfaction should not be conducted by inexact proofs, indefinite testimony, or indirect inferences” . See also Neat Holdings Pty. Limited v. Karajan Holdings Pty. Limited (1992) 67 ALJR 170.

In proceedings where the issue is whether or not a person has practiced as a barrister without being the holder of a current practising certificate, the civil standard of proof applies. However, the nature and consequences of the proceedings and the gravity of the Bar Council’s allegations have to be taken into account especially so where the Bar Council seeks to establish that the defendant contravened the section wilfully and without excuse in order to establish a basis for a declaration of professional misconduct under s.25(4) of the Legal Profession Act ; Kekatos v. The Council of the Law Society of New South Wales [1999] NSWCA 288 at [19]. On that basis, the Briginshaw standard should be applied: see also McCaffery (supra) per McColl, JA. at [43]. In making factual findings which underpin the ultimate conclusions expressed later in this judgment, I have sought to apply that standard. 9. The work of town planners

The defendant relied upon the evidence of Mr. Terrence Paul Byrnes to support his submissions that in giving advice he had provided town-planning advice and not legal advice as a barrister.

Mr. Byrnes has been a registered architect since 1962. He is a Fellow of the Royal Australian Institute of Planners and has been a qualified city planner since 1971. He is a Fellow of the Planning Institute of Australia.

He swore an affidavit in these proceedings on 26 September 2005. Ms. Adamson, SC. objected to it being read, inter alia, upon the basis that it did not comply with the principles in Makita (Australia) Pty. Limited v. Sprowles (2001) 52 NSWLR 705, especially at 729-740 per Heydon, JA. (as his Honour then was). Those principles concern the duty of experts in giving opinion evidence, to furnish criteria enabling evaluation of the validity of their conclusions. The affidavit, however, was allowed to be read, except for paragraph 3, which was held to be inadmissible. Leave was granted to the defendant to adduce oral evidence as to the subject matter of that paragraph.

Mr. Byrnes’ affidavit was, in certain parts, framed in very general terms. The material that had been supplied to him for his consideration in preparing his affidavit consisted of the documents comprising Exhibits 1, 2 and 3. Exhibit 1 included documents produced by Leichhardt City Council, Randwick City Council and the defendant. Exhibit 2 comprised documents produced by Planning Workshop Australia. Mr. Byrnes expressed the opinion that the documents in Exhibit 1 were of a nature “generally within the scope of technical material advised by planners” . This broad statement of opinion, however, failed to identify specific documents within the many documents in Exhibit 1 to which it was said to relate. It, accordingly, became necessary for Ms. Adamson on behalf of the plaintiff to take Mr. Byrnes through many of them. Having done so, Mr. Byrnes in relation to a number of documents conceded that the defendant had in fact provided advice to Randwick and Leichhardt City Councils in the nature of legal advice (see separate discussion of advice given to those Councils (at paragraphs [75] to [84]).

Mr. Byrnes’ affidavit did not attempt in any comprehensive way to describe the nature and content of the work of town planners who practice in this State. The approach that he adopted in evidence was essentially:- • to emphasize the need that town planners had to be familiar with current decisions and trends in judgments and decisions of the Land and Environment Court and, as appropriate, with particular judgments of the New South Wales Court of Appeal; • to emphasise the practice, where appropriate, of town planners to provide legal referencing in their opinions on certain matters and the need for them to keep abreast with changes to planning and other relevant laws.

Mr. Byrnes both in his affidavit as well as in his oral evidence sought to characterise the work undertaken by the defendant as planning work, emphasising that his references to planning instruments, to court decisions and prescribed guidelines were consistent with what one would expect of a town planner called upon to provide advice on planning and other matters.

His evidence in this respect, however, amounted to little more than assertion. Mr. Byrnes stated in paragraph 9 of his affidavit:- “In my experience, the dividing line between legal and planning opinions can be a grey area where it arises in the circumstances of a court hearing …”

It is clear, of course, that town planners must have an awareness and knowledge of relevant law including planning instruments and they are required to update on an ongoing basis their knowledge of relevant court decisions. However, the application of laws, legal instruments and the observance of relevant legal principles occurs in many fields of professional endeavour, eg., hospital management, policing, nursing, financial advising etc. The provision of legal advice on matters involving legal interpretation or on legal rights or duties is the preserve of the legal profession. The evidence which the defendant adduced from Mr. Byrnes as to advice or services provided by him to Randwick and Leichhardt City Councils failed to observe the distinction that must and does exist between the professional work of specialist barristers in the areas of local government, planning and environmental law etc. and that of town planners. Without Mr. Byrnes having attempted to examine in the necessary detail the relevant documents by reference to the work of each profession, the task he set himself of characterising the advice provided by the defendant as that of town planning was made all the more difficult. At the end of the day, I am of the opinion that with respect to the work identified in paragraphs [75] to [84], for reasons later discussed, Mr. Byrnes’ evidence did not establish the proposition that such work was in the nature of town planning advice rather than legal advice. 10. The business description of Sydney Development Services Pty. Limited

As earlier noted, Sydney Development Services Pty. Limited was registered on 23 November 2001. The only evidence as to the company’s business activities is documentary. These include the company’s tax returns and a number of email transmissions in relation to particular transactions.

The evidence establishes that since December 2001 the company has issued tax invoices for the provision of professional services rendered by the defendant. The first invoice was issued on 19 December 2001 to “P. Montgomery” in an amount of $22,000.

In the company’s tax return for the year 1 July 2001 to 30 June 2002, the main business of Sydney Development Services is described as “Legal aid service” . The industry code on the return (78410) is that of barrister . Gross income is recorded as $63,275.

In a letter dated 7 January 2002 to Ms. Margaret Lyons, solicitor, of Leichhardt City Council under the defendant’s wife’s name, it is stated:- “Development and Local Government consultancy services are offered at an hourly rate of $400 plus GST%.”

The company’s tax return for the 2003 year gave the description of the main business activity as “barrister” and again inserted the abovementioned industry code. Whilst such descriptions could not amount to admissions by the defendant, no evidence was adduced by him for the purpose of explaining the basis upon which the activity descriptions were inserted in the returns. The plaintiff relied upon the defendant’s failure to call evidence from his wife (see paragraphs [66] to [68]), who was the signatory to the returns. Ms. Adamson, SC., for the Bar Council, submitted that the Court would infer that nothing either the defendant or his wife could have said on this aspect would have assisted the plaintiff’s case. In any event, it was further submitted, the description of the business activity of the company provided in the returns ought as a matter of inference be drawn from the evidence. It was contended that the defendant has continued to conduct practice as a barrister “without appearing robed in a courtroom but has behind the scenes performed many of the tasks which are commonly and regularly performed by barristers and that required the application of legal expertise”. I will return to the question of the characterisation of his activities later in this judgment.

In the disciplinary proceedings in the Administrative Decisions Tribunal (referred to in paragraph [10]), the defendant accepted that the clients of the company, and to whom his services were rendered through it, were “in the main” clients who formerly engaged him when he held a practising certificate. He also conceded in those proceedings that neither he nor Sydney Development Services carried professional indemnity insurance. 11. The defendant’s failure to give and call evidence from certain witnesses

Ms. Adamson submitted that the failure to give or adduce evidence from the following persons permitted a relevant Jones v. Dunkel inference to be drawn:- (a) the defendant himself; (b) the defendant’s wife; (c) solicitors and at least two barristers who dealt with the defendant (except for Mr. Montgomery who gave instructions in the Ironhill Pty. Limited v. Transgrid (2004) 139 LGERA 398 proceedings) - see paragraphs [85] to [91].

The Court was accordingly invited to draw an inference that evidence from the above persons would not have been of assistance to the defendant. “… In circumstances in which a plain inference is open from facts proved by the Bar Council that the defendant has practised as a barrister notwithstanding the cancellation of his practising certificate, the circumstances that the defendant has chosen not to give evidence requires an inference that the evidence could not have assisted his case to be drawn: Jones v. Dunkel (1958) 101 CLR 298.” (Plaintiff’s written submissions, paragraph 50).

The plaintiff’s submissions refer to a number of solicitors and two counsel (one of whom is a senior counsel) who had dealings with the defendant. Such persons, it was submitted, could have been called to provide evidence on matters relevant to the characterisation of services provided by Mr. Davison through Sydney Development Services. On the issue as to the characterisation of the defendant’s role and the nature of the advice provided by him (as discussed, in particular in paragraphs [60] to [64] and [72] to [108]), there is a ground for the drawing of a Jones v. Dunkel inference in accordance with the principles stated by the High Court in that case, especially at pp.308 (Kitto, J.), at p.312 (Menzies, J.) and at p.319 (Windeyer, J). As to a recent statement on Australian law on the effect of a party failing to call an available witness, see judgment of Campbell, J. (with whom Beazley, JA. and Pearlman, AJA. agreed) in Manly Council v. Byrne [2004] NSWCA 123 at [44] to [54] inclusive. It is important to observe that before a Jones v. Dunkel inference can be drawn, there must exist evidence from which an inference may be fairly drawn. In this respect, I refer to the observations of Spigelman, CJ. in State Bank of New South Wales v. Brown (2001) 38 ACSR 715 at [17] to [18] (whose reasoning was adopted by Hodgson, JA. at [104]) (with whose reasons Handley, JA. agreed). 12. Was the defendant under an obligation to give evidence?

Senior counsel for the Bar Council relied upon Re Veron: ex parte Law Society of New South Wales (1966) 34 WN 136 to support the proposition that in proceedings such as these the defendant ought to give evidence. I am not as ready to accede to the proposition which the Bar Council makes based upon what was stated by the Court of Appeal in Veron (supra). In that case, specific charges of misconduct had been made against the respondent Veron to show cause why he should not be dealt with by the Court for professional misconduct. In that case, there had been a report and affidavits provided by an investigating chartered accountant to the Law Society of New South Wales which established excessive charges for costs. The Council of the Society had resolved to receive the report and passed a further resolution that there has been, prima facie, a pattern of conduct on the part of the solicitor which the Council regarded as “disgraceful and dishonourable” . Particular charges were then brought against the solicitor. The solicitor was called upon to show cause why he should not be dealt with. In response, the court stated that, as an officer of the court, the solicitor could not “lie by and engage in a battle of tactics … to endeavour to meet the charges by mere argument” (at p.142).

The circumstances of the proceedings here are different. The defendant’s conduct had not been subject to any prior investigation which established any facts adverse to him let alone a prima facie case of professional misconduct. Nor was he facing in these proceedings any charges as in Veron based on a particular set of facts established to a prima facie level by an investigator. The circumstances accordingly are markedly different from Veron and Coe v. NSW Bar Association [2000] NSWCA 13, which latter case was also relied upon by the Bar Council. In the latter case, a determination of wrongdoing (swearing an affidavit in Family Law proceedings which was substantially false) had actually been made by the Legal Services Tribunal on 19 May 1997. The proceedings were adjourned to 13 June 1997 to enable the parties to present further evidence. The appellant was the only person who could have explained his actions but he failed to swear an affidavit in relation to the Tribunal’s earlier finding. See also Re Mack; ex parte New South Wales Bar Association (1968) 88 WN (NSW) Part 1, 68, 70.

I am accordingly not prepared to proceed upon the basis that the defendant was obliged to give evidence. The effect, if any, of his decision not to do so is to be evaluated in accordance with ordinary evidential principles to which I have referred in paragraphs [66] to [68]. 13. “Re-labelling” advice and incorporating advice by the defendant into solicitors’ advice

On a limited number of occasions, requests by solicitors directed to the defendant were re-labelled as requests for “planning advice” rather than “legal advice” or as the provision of “consultative services”. The context or circumstances where this occurred (see below) was such that “re-labelling” was little more than an exercise in semantics.

On 18 July 2002, Ms. Lyons, solicitor, sought advice, which Mr. Byrnes conceded was legal advice. A number of questions were raised by a Council employee in a memorandum for the purpose of seeking “legal advice” . The very same questions in the same terms were subsequently referred to the defendant for “planning advice” . The questions were:- 1. Whether the construction and use of Derbyshire Road as a temporary school for two years is development. 2. If yes, can it be approved on the open space and roadway and what mechanism? 3. Is the only option the prohibited development provisions of the Act? 4. If no, is the Roads Act all I have to worry about?

The submission, which I accept, was that in such cases the so-called “planning advice” provided by the defendant involved “legal advice”. The Bar Council also relied upon the fact that on several occasions, legal advice was sought by Randwick City Council from Bowen & Gerathy, solicitors. Those solicitors in turn referred the matters for advice to the defendant for his advice. Advice given by him on a number of occasions, was incorporated into the response by the solicitors to their client Council. In the case of Leichhardt Council, advice sought from the solicitor for the Council was referred to the defendant for his advice. 14. Advice provided to local government authorities (a) Advice and services provided by the defendant to Randwick City Council

Exhibit F included documents produced under summons by the firm, Bowen & Gerathy. Some of the documents established that Randwick City Council on occasions sought advice from that firm. The firm, as noted above, in turn sought advice on the matters in question from the defendant. Several advices tendered by him were related to legal questions or issues. Apart from two occasions (see below), advice provided by him (pursuant to the Council’s engagement of Sydney Development Services Pty. Limited) was provided in a similar manner to that of a barrister advising on legal matters pursuant to a retainer or engagement by a firm of solicitors.

In a letter of 10 September 2002 addressed to “Bill Davison, Sydney Development Services Pty. Limited” concerning a development application entitled “Re Randwick City Council and Department of Defence” , the author of the letter wrote:- “We refer to the writer’s brief telephone discussion with you earlier today and confirm that we seek your services as an expert consultant to assist in our providing advice to Randwick City Council with respect to its consideration for determination of the abovementioned development applications.”

Advice provided by the defendant between 10 September 2002 and March 2004 including the following:- • Advice on proposed conditions of development consent supported by case law and statutory references. • The inclusion of additional draft consent conditions. • Comment upon amendments to conditions proposed by Council on issues raised in the defendant’s “preliminary advice” . • Advice on proposed remediation and validation of Department of Defence land and the regulatory powers of Council. • Advice to Bowen & Gerathy on dealing with a modification application under s.96(1A) and s.96(1) and in relation to additions proposed. • Advice by the defendant to Bowen & Gerathy on specific questions raised by Randwick City Council on a proposed plan of management with respect to the creation of a parkland from surplus Defence land. The questions raised issues that fall within the specialist knowledge of a legal practitioner practising in the field of local government law. • Advice as to whether Council should enter into a deed with the Department of Defence in relation to the following: the Department’s commitment to a plan of management, required works concerning a proposed parkland area and the dedication of the parkland to Council. Advice was also provided by the defendant on the need for Council to impose certain conditions on specified development applications concerning Defence land. • Conditions of consent concerning proposed parkland and the need to include specific matters with respect to the Department’s obligations for maintenance costs following transfer or dedication. • A further draft condition (condition 61) concerning maintenance costs sent to the defendant for his approval and advice. • Advice provided on specific legal questions:- (a) as to when roads vest – specifically, not as a consequence of the deed in question but upon registration of the relevant plan; (b) concerning the question as to whether the terms of a deed have been diminished or enlarged by rights of a specified party.

Advice was also provided by the defendant upon the operation of particular statutory provisions on the question of the lapsing of development consents – including the power of councils to modify consents and the availability of the power to alter them under particular statutory provisions.

The defendant also advised Bowen & Gerathy upon the operation of a specified EPAA regulation on deferred commencement of a consent with reference to a number of propositions on deferred commencement consent as expressed in the judgment of Bignold, J. in Australand Holdings Limited v. Hornsby Shire Council (1998) 98 LGERA 312. Bowen & Gerathy incorporated the defendant’s advice on the question into the firm’s advice to Council. The advice (dated 15 April 2004) included an analysis of the judgment in light of relevant statutory provisions.

In the period during which the defendant provided advice to the Council (that is between September 2002 and March 2004), he twice made reference to restrictions on him in giving legal advice. On 20 September 2002, in an email to Bowen & Gerathy, he made a brief comment on development conditions for a property in Bundock Street, Randwick and concluded with the comment:- “I confirm, however, that I cannot give legal advice. If legal advice is required, the Council should rely on you.”

In another matter, Mr. Davison was asked by Planning Workshop Australia for advice (on 23 June 2005 in relation to “Quay Street”). The defendant again recorded “I am not able to give legal advice” . The available records suggest that no advice was tendered by the defendant on this occasion.

It is significant that from September 2002, the defendant, in fact, provided advice in the nature of legal advice to Bowen & Gerathy/Randwick Council on a range of matters. It is evident that he did provide an advice on a number of occasions pursuant to Randwick Council’s request through Bowen & Gerathy for advice upon development consent powers and conditions. In relation to the Department of Defence property at Bundock and Avoca Streets, Kingsford, he again made reference to restrictions on his capacity to provide legal advice. In relation to advice sought on 22 October 2002 with respect to the application of regulatory powers of Council concerning Commonwealth works, a solicitor’s note records “not able to provide legal advice” . Specific advice, however, was given by the defendant on a significant number of occasions on legal questions without any such express reservation. (b) Advice provided by the defendant to Leichhardt Council

The evidence establishes that the defendant provided advice in the nature of legal advice to Leichhardt Council’s in-house solicitor. I have previously referred to the Council’s solicitor seeking from the defendant what she termed “planning advice” . On analysis the advice given by him was in the nature of legal advice (see below).

Advice sought by Leichhardt Council’s solicitor and provided by the defendant included:- • Advice on whether a record of the issue of Ordinance 42 licences for a boarding house at a particular property was sufficient evidence of lawful commencement or of lawful use to attract the regulation of SEPP10. • Advice that a roadway that had not been closed had not been “acquired” for open space. • The circumstances relating to a particular property wherein temporary use would not prevent Council from permitting development. 15. Advice and services provided by the defendant in relation to legal proceedings (a) The Ironhill v. Transgrid litigation

This litigation arose out of the compulsory acquisition of land for a transmission line easement and the construction of a transmission line causing loss of dwelling units on a golf course development. Ironhill Pty. Limited brought a claim for compensation in the Land and Environment Court. It retained the firm Pike, Pike & Fenwick, solicitors, to act for it on the claim. It also retained Sydney Development Services Pty. Limited. The defendant, through that retainer, provided a substantial level of advice in relation to the claim. The charge-out rate for Sydney Development Services was $500 per hour, exclusive of GST.

Mr. Peter Guy Montgomery, a director and shareholder of Ironhill and also a solicitor was called to give evidence on behalf of the defendant. In his short affidavit sworn 23 September 2005, Mr. Montgomery stated that Ironhill owns Bonville International Golf Club and the land on which it operates. He stated that he had previously engaged the defendant when he was in practice as a barrister. He was aware of the fact that his practising certificate had been cancelled. In December 2001, he asked the defendant if he would be able to represent Ironhill’s interests in the management of its claim. The defendant replied that he was engaged by Sydney Development Services and the company would be able to fulfil that role. He told Mr. Montgomery that he would not be able to give any legal advice.

Mr. Montgomery, who is a practising solicitor, said he was aware of that fact. He said he relied on his lawyers to do the legal work. He added:- “I told him I did however wish him to instruct the lawyers and the experts on Ironhill’s behalf and ensure the instructions were carried out in a timely manner” (paragraph 8 of his affidavit)

The evidence in Exhibit C establishes, however, that the defendant rendered services involving the application of legal knowledge and experience in relation to the following:- (a) A memorandum to Mr. Montgomery which the latter agreed in cross-examination was in the nature of an advice on evidence. It would perhaps be better described as a single page outline identifying specific matters for the attention of expert witnesses. (b) A brief draft letter to be considered as a draft response to a letter from the solicitors acting for Transgrid. (c) Drafting letters to be sent on the letterhead of Ironhill’s solicitors. (d) Comments on and suggestions by the defendant in relation to draft expert reports. (e) A request by him to Ironhill’s solicitors to issue subpoenae for Transgrid files and Coffs Harbour City Council in relation to a master plan. (f) Advice to Ironhill to make an application under s.96 of the Environmental Planning & Assessment Act . (g) Drafting Points of Claim. (h) Drafting particulars of an estoppel claim for inclusion in the Points of Claim document. (i) Advice not to prosecute Supreme Court proceedings in relation to an estoppel issue but to proceed in the Land and Environment Court. (j) Drafting correspondence - suggesting the incorporation of a comment in a letter from Ironhill’s solicitors to Transgrid’s solicitors and providing case references to the former. (k) Settling the terms of a notice to produce. (l) Preparing a statement for an expert witness, Mr. David Crompton. (m) Producing a memorandum setting out paragraph references in the expert reports of Transgrid for specific response by Ironhill experts under the heading “evidence in reply” . (n) Drafting questions to be addressed by Mr. Crompton for evidence in reply. (o) Checking draft expert reports to be relied upon in the Ironhill proceedings. (p) Preparing an “Elements of Claim” document for use in the proceedings and “resolved” and “remaining issues” document. (q) Engaging in discussions for the purposes of the proceedings with senior counsel briefed for Ironhill. (r) Preparing draft written submissions and sending the draft document to the solicitor for Ironhill for him to provide to counsel. (s) Drafting questions for cross-examination of experts.

Mr. Montgomery impressed me as a witness. He gave evidence in what I considered to be a very straight-forward manner. He made it clear that whilst the defendant purported to draw a line between “legal” and non-legal matters, he found it difficult at times to discern into which category specific work undertaken by the defendant fell:- “… Mr. Davison, on a number of occasions, both orally and in writing, said to me, ‘this is a legal matter which you should take legal advice on’. He had a precise view of the matter. Sometimes it seemed to be a little blurred to me, I couldn’t – but he was very precise from time to time as to when his advice should be, in a sense, put to one side and the matter had to be decided by counsel or our solicitors. Q. When you say that the line seemed to you, from time to time, a little blurred, does that mean you were unable, as it were, to appreciate the distinction he was drawing between what he could do and what he couldn’t do? A. Yes. (t.111)

Mr. Montgomery stated that the defendant did not attend the hearing before the Chief Judge of the Land and Environment Court, adding:- “… that’s what I thought would be clearly crossing the line of what he may be able to do, but he would not be able to appear in court in any form.” (t.113)

Mr. Montgomery’s evidence does establish, however, that Mr. Davison was very substantially involved in the preparation of evidence for the proceedings and in providing advice on the preparation and presentation of Ironhill’s case in terms of identifying “issues” or “elements” in the claim and drafting written outlines of submissions for use in the proceedings. Following the delivery of judgment on 16 December 2004, he provided advice to Ironhill representatives on whether he considered grounds of appeal existed. The defendant produced a document containing seven points of possible attack upon the judgment (no appeal was in fact lodged). (b) The Ballast Point litigation (i) The retainer

Evidence given in the Administrative Appeals Tribunal established that since October 2002, Sydney Development Services was paid a monthly retainer of $10,000 by Walker Corporation with respect to services provided by the defendant via Sydney Development Services under the latter’s contract with Walker Corporation. On the defendant’s evidence in the Tribunal, this continued until about 12 May 2004 although there exists an invoice sent by Sydney Development Services dated August 2004, the defendant contended in evidence that related to another general retainer.

The defendant called evidence from Mr. Langley Alexander Walker, Chairman of Walker Corporation. He had originally intended to rely upon Mr. John Hughes, managing director of Walker Corporation, who had sworn an affidavit in the proceedings. Mr. Hughes had been given notice to attend for cross-examination. However, he was interstate when required. Although the defendant was invited to submit a video link proposal as a means of taking Mr. Hughes’ evidence, the invitation was not taken up. Mr. Walker accordingly was called at short notice to give evidence in the defendant’s case.

As Mr. Walker was not present when the defendant and Mr. Hughes discussed the former’s engagement for the Ballast Point litigation, there was no oral evidence of the initial terms agreed upon.

Walker Corporation had contracted to purchase Ballast Point from Caltex as at the time of the relevant resumption. The land had been acquired under an option agreement made in 1997. The option was exercised in April 2002.

At the time of resumption by the Sydney Harbour Foreshore Authority, there was pending a claim for existing use rights, a draft master plan pursuant to SEPP 56 and a development application for aged persons housing pursuant to SEPP 5. It was evident to Mr. Walker that his company’s claim was likely to be a substantial and complex one. He wanted someone who would make sure the claim was diligently pursued “from a mechanical point of view and relieve the company from the need to be involved day to day with it” (Mr. Walker’s affidavit sworn 6 October 2005, paragraph 7).

On 9 October 2002, the defendant on behalf of Sydney Development Services, wrote to Mr. Hughes in the following terms:- “re Ballast Point I confirm your retainer to consult upon and manage the claim for compensation for the resumption of Ballast Point. This company will make me available as required by you from 1 October 2004 until either conclusion of the hearing of the claim or the settlement of it, whichever is the sooner, for a retainer of $10,000 per month payable the 8th of each month to the company bank account … You will determine a success fee during this month. Sydney Development Services Pty. Limited Bill Davison”

In oral evidence, Mr. Walker stated that in a meeting with the defendant he emphasised that the co-ordination of experts in relation to the claim was critical. In later evidence he said that the defendant was engaged for what he termed “project management” . He advised the defendant that the firm Minter Ellison had been engaged for the claim.

The defendant sent an email to Mr. Hughes on 18 September 2002. In it he wrote:- “I would propose a fee of 2% of the difference between the statutory valuation and the award of compensation (plus GST) with the retainer for the project of $10,000 per month (plus GST) until conclusion of the hearing deductible from the fee.”

On the same date, Mr. Hughes emailed the defendant in the following terms:- “Bill On my rough estimate, your fee would be approximately $890,000 if the time it took to get a resolution was nine months. The best you could look forward to as a barrister would be significantly less. I think we have to agree something more palatable for us. Could you have another think about a fee structure? What we have to agree is a bonus/fee for the skill/genius/success of the claim …”

In relation to remuneration paid to the defendant, Mr. Walker stated that no success fee had been paid to him. The amount of any such fee would be determined in light of the result achieved. It was a question yet to be finalised. (ii) The defendant’s role in relation to the Ballast Point proceedings

Mr. Walker acknowledged that one of the reasons Walker Corporation retained the defendant was because of his known skill in the “land and environment area” .

Mr. Walker conceded that the defendant:- • assisted in the preparation and refinement of the points of claim filed on behalf of Walker Corporation; • assisted in preparing instructions to be given to experts retained by the corporation; • considered which witnesses were required for the claim; • reviewed draft expert reports.

In an email to Mr. Crews of Walker Corporation dated 8 October 2002, the defendant referred to his responsibilities to Walker Corporation in the following terms:- “My responsibilities will include developing strategy instructing and co-ordinating experts and lawyers after consultation with you, John or Ian and co-ordinating non-expert evidence for the claim for compensation in the Land and Environment Court.”

Mr. Walker insisted in evidence that it was he himself who determined strategy. However, it is clear from the evidence that the defendant contributed to the strategy employed in and the development of Walker Corporation’s case by advising on evidentiary issues and assisting in the preparation of evidential material in support of the claim. It matters not whether the term “strategy” is employed to describe some of the services rendered by the defendant. Whilst the work he did perform is not fully revealed by the intermittent references contained in the subpoenaed documents tendered in evidence, there are sufficient references to establish that a significant part of that work was in the nature of advisory work similar to advice provided by barristers experienced in compensation/compulsory acquisition, proceedings.

Certain work undertaken by the defendant directly influenced the expert evidence used in the proceedings. In an email of 19 August 2003, Mr. Davison suggested to Professor Sonja Lyneham of Planning Workshop the inclusion of a paragraph addressing issues concerning the extent to which the master planning process had progressed for Ballast Point. Similarly, on specific occasions advice was sought from both the defendant and from senior counsel retained for the proceedings. On one occasion the defendant considered, a question concerning the release and use of documents protected by legal professional privilege. (iii) The employment relationship between the defendant and Walker Corporation

Mr. Walker gave evidence of the defendant’s engagement under a contract of employment on 20 April 2005 with Walker Corporation. The agreement provided for a three month probationary period. The defendant’s position was described in the contract as “Assistant to Chief Town Planner” . The defendant is said to have commenced the employment on 7 April 2005. A contract of employment was entered into on 18 July 2005. In the Tribunal proceedings, he said he continued as well to perform consulting work on behalf of Sydney Development Services. A further three month employment agreement was made on 6 July 2005. Mr. Walker stated that a further three month oral agreement had since been made with him.

The defendant continued after April 2005 to undertake consultancy work (as distinct from work as an employee) on behalf of Sydney Development Services. Specific documents in relation to such work included the following:- (a) An email from Planning Workshop to the defendant dated 13 May 2005 requesting a draft letter in response to a letter from Sydney City Council concerning a proposed development in Haymarket. The defendant’s response was dated 18 May 2005. (b) A document containing a request from Planning Workshop dated 23 June 2005 for advice as to the construction of a clause in a Local Environmental Planning instrument restricting car parking facilities. (c) Sydney Development Services invoices to Planning Workshop in relation to Quay Street dated 20 June and 12 July 2005. 16. Statement made by the defendant as to his inability to provide legal advice

I have referred in paragraphs [48] and [86] to the occasional statement by the defendant (eg., when giving advice to Randwick City Council) to the effect that he was not able to provide legal advice. An examination of the documents produced by Bowen and Gerathy does, however, establish that the defendant in fact provided legal advice on legal matters and questions as identified in this judgment. In the facsimile to Sydney Development Services Pty. Limited dated 22 October 2002 in respect of the Department of Defence land (Bundock & Avoca Streets, Kingsford), two subject matters are referred to. Subject matter (B) regulatory powers of council – Commonwealth, has a handwritten asterisk put against it with a footnote, apparently written by the solicitor at Bowen and Gerathy to the following effect:- “NB re (b), not able to provide legal advice.”

The subject of the regulatory powers of counsel in respect of Commonwealth works, of course, raised legal questions. Even if, as appears may well have been the case, the defendant deferred from providing an advice or opinion on that legal question, other documents in relation to the Department of Defence land project reveals that he did provide advice on other matters involving legal questions without any restriction the month before (on 10 September 2002), when the defendant provided legal advice on legal questions concerning the imposition of conditions in relation to the remediated land. The email on the matter dated 10 September 2002 provides extensive discussion of case law references including issues raised in Weal v. Bathurst City Council & Anor [2000] NSWCA 88 (24 November 2000). The email further discusses legal issues in relation to counsel’s consideration of relevant matters in the context of s.90(1) of the Environmental Planning & Assessment Act . There is accordingly no consistency between the defendant stating on the one hand his inability to give legal advice and his actions in doing so on the other.

I have referred in paragraph [81] to the defendant’s email of 23 June 2005 in which he stated that he was not able to give legal advice in relation to the Quay Street matter. However, the next day, the defendant was sent an email which raised a legal question arising out of an objection that Council had received to the proposed development. In the email, the defendant was asked to provide advice in relation to a contention by solicitors on behalf of the owners of a particular property referring to a clause in the relevant Local Environmental Plan 1996 restricting car parking facilities, the contention being that this was not a prohibition and therefore the site did not enjoy existing use rights. The defendant was asked to state whether he considered there was any strength in the argument, that argument it being pointed out being contrary to advice given by the solicitors to the client. The email concludes:- “Sonja would like to call you tomorrow afternoon discuss (sic) your opinion on the matters.”

The defendant had earlier that day made arrangements to speak to “Sonja” . Whilst there are no documents stating what advice was given by the defendant, it is clear that he was being consulted in relation to legal issues and that any advice on such issues could only be classed as legal advice.

The expression legal advice is a generic term that covers or applies to advice on a wide range of matters. The advice may pertain to strict legal questions but advice provided by a barrister is not necessarily limited to technical issues of law. Inevitably in litigation there are many issues of fact to be proved by evidence in proceedings. Advice on such issues may equally be classed as “legal advice” although they are essentially directed to addressing questions of fact which, in due course, a court will be called upon to determine within the legal framework of the case. Accordingly, the distinction which the defendant on occasions sought to draw between legal advice and other advice provided by him was, in the circumstances and, on the facts of this case, substantially a meaningless one. 17. The defendant’s submissions

Senior Counsel for the Bar Council relied upon extensive written submissions entitled “Plaintiff’s outline of submissions” . They analyse in considerable detail the evidence in the proceedings and contend that they support a number of conclusions adverse to the defendant. In paragraph 29, the following submission appears:- “The Bar Council submits that the documents establish that the defendant has continued to practise as a barrister without a practising certificate, in deliberate and cynical defiance of the decision of the Bar Council to cancel his practising certificate, and without professional indemnity insurance required by the Act for the protection of members of the public.”

The defendant did not respond either orally or in writing to many of the matters raised in the Bar Council’s written and oral submissions. Instead, he chose to supplement his brief oral submissions with an eight page document entitled “Response to plaintiff’s outline of submissions” . This document has a comparatively narrow focus. It is largely confined to brief commentary on specific pages within Exhibits C, D, E and F. The result of this approach is that the defendant has not in terms expressly taken issue with many contentions made on behalf of the Bar Council as to what the evidence is said to establish in relation to a number of the factual matters that were subjacent to the Bar Council’s ultimate submission that he has practised as a barrister since 10 November 2001. I do not, however, take his silence on such matters to be acquiescence in them. Unaided by specific submissions by the defendant on many detailed submissions made against him, it has been necessary to evaluate each by analysing the evidence said to support the submissions. 18. Specific submissions made by the defendant

The defendant submits that the Court would find Mr. Byrnes to be both a credible and dispassionate witness. He further submitted:- (a) The absence of evidence, other than that of Mr. Byrnes, of “what occurs in the Land and Environment Court or the planning area” and the absence of “what is the practice of a barrister or others in those areas is fatal to the plaintiff’s case” . (b) That no person who dealt with him (the loss of his practising certificate being a well-known fact), could have believed that he was a barrister and that accordingly the second limb of “the Sanderson test” could not apply. (This is a reference to In re Sanderson ex parte The Law Institute of Victoria (1927) VLR 394.) (c) In relation to work associated with the drafting of points of claim, the Land and Environment Court is not a court of strict pleading. Evidence of what occurs in that Court is therefore essential before the finding sought by the plaintiff could be made.

I have referred above to the fact that the defendant’s written submissions also commented upon specific documents contained within Exhibits A, C, D, E and F. It is not necessary to reproduce or refer to each point. Each has been examined in the course of considering the defendant’s written and oral submissions. I accept that not every document contained in the exhibits constitutes evidence supportive of the plaintiff’s contentions.

The following are matters calling for specific comment:- (a) Exhibit C, pp.95-96 – an email from the defendant to Mr. Montgomery entitled “Evidence in Reply” . The defendant has recorded by way of submission: “part of project management” without elaboration. The essential nature of the advice given at these pages relates to the need for reply evidence to address specific aspects of expert evidence as the title to the document itself indicates. Whether or not it can be described as an aspect of “project management” , it is nonetheless within the scope of work undertaken by counsel who is briefed to advise in relation to the evidence considered necessary for legal proceedings. (b) Exhibit C, p.103 - advice to issue a subpoena – the defendant submitted that this was part of project management . The same comment in relation to pp.95-96 of Exhibit C applies. (c) Specific comments made in relation to the two documents identified by the defendant in Exhibit C are in some cases accurate but do not negate the fact that the documents at least in part constitute communications by the defendant in the nature of advice on preparation of evidence for use in the Ironhill proceedings. They reflect the exercise of judgment on the defendant’s part as to the evidence considered necessary for enhancing the strength of Ironhill’s claim in the proceedings. (d) Exhibit D, p.107, - an email from Minter Ellison seeking advice from the defendant on whether a subpoena for production of documents should issue to Caltex. The defendant commented on the document entitled “request for instructions” . The request was more accurately a request for the defendant’s advice in relation to the gathering of documentary evidence from a third party for use in the Ballast Point proceedings. The advice sought conformed with the kind of advice commonly provided by counsel who is retained to advise in relation to court proceedings. A similar point arises with pp.189 and 216 of Exhibit D. (e) Exhibit F, Tab 2, p.1 – a document provided by the defendant with a reference to a judgment of Sully, J. The defendant has submitted “practical advice not legal” . The assumption that the two types of advice are mutually exclusive of each other is not made out. 19. Proceedings in the Land and Environment Court

In oral submissions, the defendant submitted that the only evidence in the proceedings on what is “the practice” of the Land and Environment Court or what he described at transcript p.184 as, “the planning jurisdiction more broadly” was that given by Mr. Byrnes. In relation to these submissions, I make the following observations:- (a) I have previously made observations on Mr. Byrne’s evidence (see paragraphs [52] to [59]). That evidence of Mr. Byrnes (both affidavit and oral) was principally directed (but only in a very general fashion) to the following matters:- (i) the provision of opinions and evidence expressed/given by town planners both in the Land and Environment Court and in non-contentious contexts; (ii) the practice of “legal referencing” in reports by town planners and in correspondence or other communications; (iii) the application of certain planning-related instruments (iv) the role of town planners in assisting in the compilation or formulation of expert evidence; and (v) the input by town planners in the course of preparing a case.

It is not correct to say that Mr. Byrnes otherwise purported to deal with “the practice” of the Land and Environment Court or what the defendant termed the “planning jurisdiction” .

Mr. Brynes’ evidence identified certain areas in which planners provide “opinions” in relation to contentious and non-contentious planning matters and in relation to other work. He did not seek to address in any comprehensive way the criteria or relevant points of reference for defining the scope of the professional work of town planners.

Mr. Byrnes’ evidence did provide a basis for establishing the broad or general proposition that in some matters there can be and often is an overlap and convergence between the knowledge and work of lawyers and town planners and other professionals and the fact that their respective skills combine in the preparation and presentation of cases in the Land and Environment Court.

Section 63 of the Land and Environment Court Act 1979 extends the right of appearance beyond lawyers. It is in the following terms:- “A person entitled to appear before the court may appear in person, or by a barrister or solicitor, or (except in proceedings in Class 5, 6 or 7 of the Court’s jurisdiction) by an agent authorised by the person in writing.”

The reference to Class 5 proceedings is a reference to environmental planning and protection summary enforcement (s.21). Class 6 proceedings are appeals from convictions relating to environmental offences (s.21A) and Class 7 proceedings are other appeals relating to environmental offences (s.21B).

The fact that planners, according to the evidence of Mr. Byrnes, appear in the Land and Environment Court in a representative capacity as authorised agent of a client serves to illustrate that non-lawyers may undertake certain representative work in the Court within the limits prescribed by s.63. There is no evidence to say how often this occurs but it would seem to be the exception rather than the rule. But the point made by Mr. Byrnes in this respect, in any event, is of limited significance in relation to the characterisation of the defendant’s activities. He did not act, for example, in relation to the Ironhill or Ballast Point litigation upon the basis that he was an authorised agent for the purposes of appearing before the Court on behalf of clients and undertook advice and preparation work as an adjunct to such proceedings in that capacity. The defendant was not engaged to undertake appearance work either as a town planner, agent or at all. Much of the work undertaken by him as described and analysed elsewhere in this judgment conformed to advice work characteristically undertaken by barristers in relation to proceedings of the nature earlier described.

The fact that duly authorised non-lawyers may also appear in certain proceedings does not assist in indicating that the defendant’s work activities were or may be characterised as undertaken by him as a town planner advocate or representative.

This point raises a related matter. The fact that a person may engage in particular conduct that is often or usually performed by a barrister does not greatly assist in answering the question whether the defendant did in fact “practice as a barrister” within the meaning within s.25(1) of the Legal Profession Act 1987 . In Downey v. O’Connell (1951) VLR 117, Gavan Duffy, J. at 123 observed that:- “What is done in fact and as a matter of common usage may have a very great bearing on the question of whether what a person is doing is aptly described as ‘practising as a barrister and solicitor’.”

Since the establishment of the Land and Environment Court in 1979, barristers have routinely been briefed to advise and appear, inter alia, in the Court in compulsory acquisition cases (as in Ballast Point litigation) and in proceedings like the Ironhill litigation. Barristers’ advice in practice in preparation for a hearing of legal proceedings includes advice directed to the marshalling of evidence, especially expert evidence, relevant to the proof of specific matters subjacent or relevant to a claim or defence in an endeavour to construct on behalf of their clients an evidentiary case of strength. Such work in the Land and Environment Court often calls for the exercise of the skill and experience of specialist legal practitioners. The work undertaken by the defendant as described elsewhere in this judgment accords, in the words of Gavan Duffy, J., to the common usage or practice of specialist barristers in the Land and Environment Court. The “legal work” of a barrister in a specialist field will not always entail in-depth legal analysis. The outcome of many cases turns on one or more issue(s) of fact and/or expert opinion to be determined in accordance with well-understood legal principles that operate within a particular statutory context.

Even though in everyday practice, many proceedings may be described as “fact cases” the input of a skilled barrister is often necessary for the purpose of constructing a sound evidentiary case and in particular to determine the evidence (often including expert evidence) required for or against a claim. Such advice work is conventionally undertaken by a barrister who practices in the field and who has the necessary skill and experience to know how to prove or establish by admissible evidence relevant evidential facts essential to the case.

The Land and Environment Court Act 1979 and the Land and Environment Court Rules draw a distinction between legal issues and merits issues . The Act establishes seven classes of jurisdiction of the Court. In the exercise of its original jurisdiction in class 1, 2 and 3 matters, the Court places itself in the position of the original decision-maker and determines proceedings on the merits.

It is of some significance, as senior counsel for the Bar Council submitted, that the Ballast Point and Ironhill proceedings, both class 3 proceedings, were heard by judges of the Court (Ballast Point by Talbot, J. and Ironhill by Justice McClellan, Chief Judge of the Land and Environment Court (as he then was)) and not by commissioners who are not required to hold legal qualifications). In class 4, 5, 6 and 7 matters, the proceedings must be heard by a judge of the Court.

Inherent in much of the work of the Land and Environment Court is a distinction between planning principles and legal principles, although the distinction is not always an easy one to maintain. Whilst planners and other professionals contribute to planning issues both in the context of and outside legal proceedings, determining the legal interpretation of legal instruments and the task of determining the evidence to be adduced in legal proceedings remains the work of lawyers and is not work that planners are authorised to undertake in the pursuit of their professional work.

In general terms, courts expect and rely upon appropriately qualified legal practitioners in exercising the jurisdiction and powers vested in them. Statutory exceptions apart, it is contrary to law for the “legal work” of barristers associated with legal proceedings to be undertaken by unauthorised persons. The defendant’s role in relation to the Ballast Point and Ironhill proceedings was performed by him in circumstances in which town planners had in any event been engaged in the clients’ interests. Professor Sonja Lyneham, Mr. Neil Ingham and Dr. Richard Lamb, were all town planners engaged by Walker Corporation. In the Ballast Point proceedings, Mr. Ingham had been retained by Ironhill Pty. Limited. There was no evidence that the defendant himself was also engaged by either company in the capacity of or to undertake the role of town planner.

Accordingly, whilst some only of the advice provided by the defendant related to strict legal issues (eg., matters of statutory interpretation or the powers of local government authorities) a great deal of the advice provided by him was otherwise legal work within the practice of a barrister (and therefore “legal advice” ) in that a great deal of it related to the conduct and preparation of legal proceedings including, in particular, the evidence considered by him as necessary or desirable for the proceedings. 20. Analysis

The central submission made on behalf of the Bar Council in relation to the prohibition in s.25(1) in this case is that the defendant engaged in legal practice not by undertaking the role of advocate or by otherwise undertaking court appearances but by engaging in the range of specific activities identified in its written submissions. These include, in particular, the provision of advice generally in relation to (a) the application of State planning laws and (b) the preparation of legal proceedings in the Land and Environment Court of New South Wales, the Supreme Court and the Court of Appeal. The type of advice provided by the defendant is reflected in paragraphs 3(a), (b), (c), (d) and (e) of the further amended summons (reproduced in paragraph [15] above) (a) Was the work undertaken by the defendant the work of a town planner?

It has been accepted for the purposes of these proceedings that town planning is a recognised field of expertise. There is no doubt that the defendant acquired a considerable knowledge of what constitutes planning work even though the exact metes and bounds of such work was not defined by the evidence. As earlier observed in relation to the evidence of Mr. Byrnes, no attempt was made by the defendant to adduce evidence directed to establishing a basis for identifying the scope or content of the professional discipline known as town planning. The attempt made through Mr. Byrnes to characterise a large amount of the work undertaken by Mr. Davison as other than legal work, in my view, failed for reasons expressed in paragraphs [55] to [59]. The evidence did not, in my opinion, establish that the defendant acted, in giving advice of the nature described above, as a town planner.

It is an incidental fact that there was no evidence that the defendant had undertaken any course of study in town planning or related disciplines or obtained any accreditation or affiliation with any group or association made up of practitioners in the planning or any related field. On the evidence, the only qualification held by him is that of legal practitioner. It is to be recalled, of course, that only a very short interval elapsed between the time of the cancellation of his practising certificate effective 9 November 2001 and the registration of Sydney Development Services Pty. Limited on 23 November 2001 and the commencement of operations by it and the defendant. (b) The meaning of the statutory phrase “must not practice as a barrister or solicitor …”

The fundamental submission made on behalf of the Bar Council was that the defendant has undertaken the functions of a barrister and has accordingly practised as such without being the holder of a current practising certificate as a barrister. The related submission was that he has done so “wilfully and without reasonable excuse” contrary to s.25(4) of the Legal Profession Act 1987 .

The equivalent provisions in the Legal Profession Act 2004 are contained in Chapter 2 – “General requirements for engaging in legal practice”. The general purposes expressed in s.13 of the 2004 Act do not have an equivalent provision in the 1987 Act. However, it is evident that the terms of s.13 express the purposes implicit in the 1987 Act. Section 13 is in the following terms:- “s.13 Purposes The purposes of this Part are as follows:- (a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so, (b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.

The protective aims identified in these provisions are achieved in part by ensuring that barristers and solicitors are made subject to a regulatory scheme. The scheme provides a means for ensuring that the conduct of legal practitioners meets appropriate standards and protects members of the community by ensuring that legal practitioners carry professional indemnity insurance.

In the task of determining the character of the work undertaken by the defendant, the following propositions are relevant:- (a) There is no element of “holding out” (as a barrister or solicitor) involved in the application of s.25(1) of the 1987 Act or s.14(1) of the 2004 Act. The test is not whether the defendant held himself out as a barrister nor whether a reasonable person would draw an inference that the defendant was or was not acting as a barrister. (b) Accordingly, one finds a distinction made by the prohibitory provisions of s.25(1) and (2) of the Legal Profession Act 1987 (NSW) respectively as conveyed by the words “must not practice as a barrister or solicitor …” and “must not hold himself or herself out to be a barrister …” . There is, in any event, no evidence that the defendant expressly held himself out to be a barrister. The focus accordingly has been upon evidence which suggests, and in some cases, establishes, that he undertook the work of a specialist barrister. (c) There is no universal or precise rule, test or guideline that can be stated that identifies every circumstance in which a person acts as a barrister (or as a solicitor). It is not merely because a person does a thing usually done by a barrister (or a solicitor), but which may be done by someone else, that such conduct will constitute a contravention of the prohibition in s.25(1) of the 1987 Act. See In re Sanderson; ex parte, the Law Institute of Victoria (1927) VLR 394 at 396 per Cussen, J. (d) Subject to specific statutory exceptions, the responsibility for and conduct of legal proceedings is the preserve of barristers and solicitors. What activities amount to conducting litigation is essentially a question of fact to be determined objectively. (e) The provision of legal advice for reward (when briefed to do) is typical of the work undertaken by a barrister. In addition to providing legal advice upon request, the fact of conducting litigation on behalf of a client will very often incidentally involve the giving of advice: Cornall v. Nagle (1995) 2 VR 188 at 208 per Phillips, J. who noted that giving of professional legal advice is to be regarded as exclusively the province of those trained in the law and having the necessary expertise. (f) The work of a barrister when conducting litigation on behalf of a client commonly involves one or more of the following functions:- • appearances on behalf of a client; • advocacy; • preparation of evidence; • advice on interlocutory processes and issues; • advice on gathering evidence; • advice on particular strategic issues; • advice on legal issues; • advice on evidentiary issues; • advice on litigation prospects; • advice and/or drafting of legal and other documents; • advice on settlement of proceedings; • advice and participation in alternative dispute resolution procedures (including mediation). (g) The word “practice” in the phrase “… must not practice as a barrister” in s.25(1) suggests a habitual or customary exercise of the calling of a barrister: Apothecaries Company v. Jones (1893) 1 QB 89, 93-94; Knott v. Physiotherapists Registration Board (1961) WAR 70, 71. However, it is not necessarily so in every case. A person may so practice on each particular occasion that he/she uses methods or procedures or undertakes services peculiar to that of the profession of a barrister – Knott (supra) at 71-72. (h) The general prohibition in s.25(1) of the 1987 Act and s.14(1) of the 2004 Act requires the court in a case such as the present to have regard to the boundaries within which conduct may be said to fall within the province of practising lawyers. At least for the purposes of the present case, such boundaries may be said to encompass legal services falling within paragraph (f) above. (c) Distinguishing the work of legal practitioners from work performed by other professionals

In the jurisdiction of the Land and Environment Court as in some other areas of the law, the work of specialists who give expert evidence may require knowledge, if not familiarity, with statute law and case law precedent. It is not usual to find non-lawyers possessing legal knowledge which they utilise in their work. But they are not thereby acting as lawyers or doing “legal work” . Commonwealth laws, for example, confer certain rights on specified persons to practice as registered tax agents, customs agents, patent attorneys and migration agents. Persons who act as such are required to have a knowledge and understanding of the relevant law. The same may be said of town planners. Similarly, in the financial industry, specialists may provide advice in relation to financial or investment transactions that require detailed knowledge of relevant statutory provisions and legal principles. Persons who are not lawyers in such specialised areas are often required to and do express opinions that must bring into account the requirements of relevant law.

The basis for distinguishing the work of persons in specialised areas of that kind from work involved in legal practice was addressed by the Supreme Court of Victoria – Court of Appeal in Felman v. Law Institute of Victoria [1998] 4 VR 324, a case involving proceedings pursuant to s.95A and s.90(7) of the Legal Profession Act 1958 (Vic) . Kenny, JA. (with whom Winneke, P. and Brooking, JA. agreed) stated:- “As I have endeavoured to show, a person who gives advice touching legal matters or who prepares documents having legal effect, does not act as a solicitor (or legal practitioner) by reason of those acts alone. Some aspects of litigation too can be conducted by a law clerk (providing it can be said that the clerk acts on behalf of his employing solicitor). In limiting his focus simply to the activities of conducting litigation, giving advice and drafting legal instruments, the appellant fails to describe sufficiently what is signified by the expression ‘engaging in legal practice’ . One may need to examine who performed these activities, as well as how, when and where they perform them.” (at p.351)

Kenny, JA. then dealt with the expression to “engage in legal practice” in s.314 of that Act and elsewhere, stating that it signified “to carry on or exercise the profession of law” adding:- “… Reference to the definitions of ‘engage’ and ‘practice’ in the Oxford English Dictionary supports the view that this is the ordinary and natural meaning of the expression. The carrying on of the profession of law is done by none other than a ‘legal practitioner’. Accordingly, in my view, the expression ‘engage in legal practice’ means ‘engage in legal practice as a legal practitioner ’, the italicised, [underlined] words being implicit in the notion of legal practice. This construction is supported by the fact that the expression ‘ engage in legal practice’ was evidently intended to cover both sides of the profession, namely, barristers and solicitors …” (at p.352)

In taking these observations into account, there is a need for caution, having regard to the actual and somewhat different terms of s.25(1) of the 1987 Act. A barrister who is involved in the practice of law will in many cases conduct that practice in a specialised area of the law. In providing legal advice he or she applies his or her legal knowledge with the skill acquired through experience in conducting legal proceedings and otherwise. Even allowing for the fact that town planners have a knowledge of relevant law which they bring into account as necessary, the knowledge and skill held and exercised by the defendant in the many instances detailed in this judgment was plainly not that of a town planner. It was acquired by him during his years in practice, firstly, as a solicitor, and later as a member of the Bar. Whilst no doubt, aspects of his knowledge may have overlapped the discipline of town planning in some respects that is not determinative of the nature of his activities. The very nature of the advice provided by him as identified in this judgment was in the nature of legal advice which barristers are called upon to provide.

On a significant number of occasions identified earlier in this judgment, the knowledge and skill applied by him was that of a specialist barrister in the fields of local government, planning and environmental law. The advice given on those occasions included advice as to the legal rights or powers of local government authorities and of others. On many occasions, the advice related to the preparation and conduct of proceedings instituted in the Land and Environment Court. In some instances, the defendant provided advice direct to clients. In other cases, the advice was tendered by him to solicitors on matters involving legal issues in performance of the contract or retainer made with Sydney Development Services. The advice required the defendant to employ his legal and other specialist knowledge and to exercise a measure of the skill and judgment of the specialist barrister. 21. Factual findings

A schedule attached to and forming part of this judgment analyses both the advice and the other legal services provided by the defendant subsequent to 10 November 2001. The schedule is divided into nine categories with cross-references to the evidence. Each category is prefaced with a statement in the nature of a finding of fact in relation to the nature or scope of work undertaken by the defendant.

In formulating factual findings, it has been necessary to exercise a degree of caution given that many of the documents are cryptic and are often clearly only part of an ongoing communication conducted verbally or otherwise in conference about which there is no other evidence. This is of importance given the dicta of Dixon, J. in Briginshaw (supra) (referred to in paragraphs [50] and [51]) concerning the relevant standard of proof.

I am satisfied to the requisite standard that the evidence does establish that the defendant in the relevant period through contractual arrangements made between Sydney Development Services Pty. Limited and third parties provided legal advice and services in the relevant period as follows:- (a) Advice in relation to the conduct of legal proceedings in the Land and Environment Court of New South Wales including, in particular, the Ballast Point litigation and the Ironhill proceedings. (b) Legal advice in relation to State planning laws and planning instruments and on documents to be used in legal proceedings. (c) Advice to clients in relation to the evidentiary requirements for legal proceedings and, in particular, upon the preparation of evidence for use in such proceedings. (d) Advice tendered by the defendant to clients including advice in relation to strategy to be followed in relation to legal proceedings and on specific matters relating to expert evidence to be used in such proceedings, the issue of subpoenae and on claims of legal professional privilege. (e) Specific services rendered by the defendant in relation to legal proceedings including settling/drafting points of claim, drafting or assisting in drafting correspondence with solicitors and written submissions and advice in relation to the preparation of such documents. (f) Assistance in the preparation of evidence by advising on the need for expert witnesses to address specific issues in their reports and in preparing points or questions to guide the cross-examination of witnesses. (g) Attending conferences with clients and counsel in relation to current legal proceedings in order to assist in the preparation of legal proceedings. (h) Advice to clients on the provisions of the Environmental Planning and Assessment Act 1979 including in relation to s.94 contributions concerning public amenities and services.

In undertaking legal work referred to in (a) to (h) inclusive, in the relevant period I find that the defendant practised as a barrister without being the holder of a current practising certificate contrary to s.25(1) of the Legal Profession Act 1987 . 22. Declaratory and injunctive relief claimed

As noted in paragraph [5], the Legal Profession Act 2004 was proclaimed to commence on 1 October 2005 and the relief sought is claimed under the provisions of that Act: see Schedule 9 “Savings, transitional and other provisions” , in particular clause 3, “General saving and transitional provisions” .

On the findings made and set out in this judgment, the Bar Council is entitled to a declaration in the terms sought in paragraph 1 the Further Amended Summons. I accordingly propose to make such a declaration. I will deal with the declaration sought in paragraph 2 below.

In relation to the injunctive relief sought pursuant to the Legal Profession Act 2004 , I set out in full the provisions of s.720 of that Act:- “(1) Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:- (a) a contravention of this Act, or (b) attempting to contravene this Act, or (c) aiding, abetting, counselling or procuring a person to contravene this Act, or (d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act, or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act, or (f) conspiring with others to contravene this Act, the Supreme Court may, on the application of the Commissioner or a Council, grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing. (2) Where an application for an injunction under subsection (1) has been made, the Supreme Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies. (3) Where in the opinion of the Supreme Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1). (4) The Supreme Court may discharge or vary an injunction granted under subsection (1) or (3). (5) The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised:- (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind, and (b) whether or not the person has previously refused or failed to do that act or thing , and (c) whether or not there is an imminent danger of substantial damage to any person if the firstmentioned person refuses or fails to do that act or thing. (6) The Supreme Court must not require the Commissioner or Council or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages. (7) In this section this Act includes the regulations and the legal profession rules.”

The provisions of s.720(1), (3), (4), (5) and (6) bear some resemblance to the provisions of s.80(1), (2), (3), (4), (5) and (6) of the Trade Practices Act 1974 (Cth) . Such provisions may be regarded as public interest provisions: see observations to this effect concerning s.80 by Lockhart, J. in ICI Australian Operations Pty. Limited v. Trade Practices Commission (1992) 110 ALR 47 at 55. Conduct of the kind proscribed by s.25(1) of the Legal Profession Act 1987 may adversely affect the public interest, either because of the damage or disadvantage that may be sustained by individual members of the public or due to the fact that work undertaken by unauthorised persons can adversely affect the proceedings of a court or both. In this way, s.720(1), inter alia, addresses the public interest concerned with the proper administration of justice.

The public nature of the injunctive powers under s.720 of the Legal Profession Act 2004 is reflected in terms of the persons who may seek an injunction (the Legal Services Commissioner (appointed under Part 7.3) and the Bar Council or the Law Society Council).

It is also exemplified by the provisions of s.720(6) whereby the Supreme Court must not require the Commissioner or a Council or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

In relation to the provisions of s.720, the following matters are noted:- (a) The power of the Supreme Court to grant an injunction under s.720(1) is enlivened even where it has only been established that the person in question (the defendant) has engaged in conduct that constituted a contravention of the Act. It is not essential that the person is engaging or is proposing to engage in conduct that constitutes or would constitute such a contravention, although those may independently form the basis for the exercise of the power. (b) The provisions of s.720(5) of the Act are designed to ensure that once the condition precedent to the exercise of injunction relief has been satisfied (ie., a relevant contravention of the Act), the Court has available to it wide injunctive powers devoid of traditional constraints. However the power is one which must be exercised judicially and sensibly: ICI Australian Operations Pty. Limited v. Trade Practices Commission (supra) per Lockhart, J.

Accordingly, whilst injunctions available under s.720 are discretionary orders, the relevant discretion is one to be exercised judicially in accordance with applicable principle. A statutory remedy such as that provided for in s.720 of the Act in many practical respects is not fundamentally distinct from the equitable remedy: ICI Australia Operations (supra) per Gummow, J. at 66. There are, however, significant distinctions between the statutory remedies and the traditional injunction in aid of legal or statutory rights which are proprietary in nature as discussed by Gummow, J. at 66.

An injunction granted under s.720(1) of the Act is controlled by the words “… on such terms as the court thinks appropriate …” . In ICI Australia Operations (supra) at 67, it was stated in relation to the comparable provision in s.80(1) of the Trade Practices Act that the terms of the injunction will not be “appropriate” if, on its face, it operates upon a range of conduct some of which does, but some of which does not, have the relationship required by s.720 with contravention of the Act. The injunction, accordingly, should not prohibit conduct falling outside the boundaries drawn by the section. Adopting the approach discussed by Gummow, J. in that case, whilst the provisions of s.720(5) indicate that the power may be exercised whether or not there are present certain circumstances ordinarily considered essential by courts of equity when exercising their inherent or traditional jurisdiction, the matters referred to in s.720(5) are nonetheless not to be taken as irrelevant to the consideration by the Court of the question whether an injunction is to be granted, and, if so, as to the determination of the appropriate terms of such an injunction.

In determining whether an injunction should be granted under s.720 of the Act, I have had regard, in particular, to the following matters:- (a) The fact and the nature of the legal advice work undertaken by the defendant. (b) The characterisation of that work as work involving the application of legal knowledge and the expertise of a barrister. (c) The regularity and the persistence of the defendant in undertaking for fee or reward the work of a specialised barrister as well as the period over which that work was undertaken (between about 10 November 2001 and 30 September 2005). (d) The fact that the defendant knew and recognised the restrictions that existed upon him in providing legal advice. Whilst he is entitled to some credit for having, on a limited number of occasions, frankly advised others that he was not able to give legal advice, that is more than outweighed by the fact that on many occasions he did in any event proceed to give advice on strictly legal questions and advice on other matters that plainly constituted contraventions of s.25(1) of the 1987 Act. (e) The serious nature of the contravention by the defendant of the provisions of s.25(1). This included advising on the preparation and the conduct of legal proceedings, in particular, in relation to proceedings in the Land and Environment Court. Persons who are not subject to the regulatory regime arising under the Legal Profession Act 1987 (and now the Legal Profession Act 2004 ) and the bar rules, are not permitted to undertake work which is relevant to and may affect the proper administration of justice and/or the interests of clients. (f) Although the defendant consented to the grant of the interlocutory injunction sought by the Bar Council (see paragraph [6]) he has not otherwise made any concession or offered any undertaking generally in relation to any future conduct by him or specifically in response to the form of final relief sought by the Bar Council in these proceedings. (g) There is a significant and present risk that, if not restrained, the defendant will continue to practice as a barrister contrary to s.14(1) of the Legal Profession Act 2004 . (h) There is, upon the basis of the evidence and the findings made thereon, a sufficient and a proper basis for the grant of injunctive relief as a matter of public interest including in particular the type of conduct by the defendant identified in (e) above. 23. The terms of injunctive relief

There remains for determination the appropriate terms of the injunction to be granted.

I have earlier set out the terms of the order sought by the Bar Council in paragraph 3 of the Further Amended Summons filed on 5 October 2005 (paragraph [15]). The order sought seeks to restrain the defendant from practising as a barrister by providing advice of the nature specified in the five sub-paragraphs to that paragraph, that is paragraphs 3(a), (b), (c), (d) and (e).

I consider the terms of each of those sub-paragraphs have been properly drafted and calibrated to the evidence and to the species of conduct which the evidence reveals the defendant to have engaged in over the relevant period in contravention of s.25(1) of the 1987 Act. In other words the terms of the injunction sought are not, in my opinion, broader than the evidence warrants and they are, as I have stated, in conformity with and reflect that evidence. I will accordingly make a declaration and order in the terms sought. 23. “Wilfully and without reasonable excuse”

I turn to consider the relief sought in paragraph 2 of the Further Amended Summons which seeks a declaration that the conduct described in paragraph 1 of the summons was done wilfully and without reasonable excuse , and that accordingly the defendant is guilty of professional misconduct within the meaning of s.25(4) of the Legal Profession Act 1987 .

In Prothonotary of the Supreme Court of New South Wales v. McCaffery (supra), McColl, JA. with whom Sheller and Beazley, JJA. agreed, observed at [20] that the use of the word “wilful” in a statute creating an offence connotes intention and knowledge citing Iannella v. French (1968) 119 CLR 84 at 95 per Barwick, CJ. and Windeyer, J. at 106-109; Fitzgerald v. Montoya (1984) 16 NSWLR 164 at 168-171 per Rogers, JA.

The phrase “without reasonable excuse” was also examined by McColl, JA. in McCaffery (at [34] and [35]). In the latter paragraph, her Honour observed that it is plain that in context, the expression requires an explanation to be propounded which would justify a practitioner’s otherwise contravening conduct.

In Iannella v. French (supra) at 94, Barwick, CJ. considered the meaning and application of the word “wilful” in the specification of an offence. The Chief Justice there observed that the denotation of the word “wilful” varies with the verbal context and the subject matter of the statutory provision. After stating that the word connotes intention and knowledge, Barwick, CJ. stated that the problem is to determine in the particular circumstances what is to be intended and what is known:- “… the answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provisions creating the offence. Further, the word ‘intention’ itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event, the conscious doing of the act may suffice to make its performance intentional and in these circumstances, wilful.” (at p.95)

In determining whether the defendant acted wilfully in contravening s.25(1), I note the following:- • Whilst s.25(2) is directed to the circumstance of a legal practitioner acting in a particular manner – by holding himself or herself out to be a barrister – s.25(1) is directed to proscribing the doing of an act or acts, namely practising as a barrister in the circumstances specified in the section. • The relevant work undertaken by the defendant commenced very shortly after the cancellation of his practising certificate. Sydney Development Services commenced operation the same month (December 2001) that he lost his practising certificate and from that time commenced charging for his professional services. Those circumstances and the fact that there was no evidence of the defendant having undergone any re-training in a discipline other than law, as well as the nature of the advice work undertaken by him are relevant matters in relation to the issue arising under s.25(4).

Although, as previously stated, the defendant on some isolated occasions stated that he was not able to provide legal advice, the regularity with which he in fact provided such advice lays a basis for an inference that he had both the knowledge and the intention of providing specialist advice and services in relation to matters that fell within the scope of the practice of a barrister, to members of the public including some clients for whom he had acted before he lost his practising certificate. However, for reasons discussed below, I refrain at this stage from expressing any final view on that matter until the parties have had an opportunity of addressing issues arising from the repeal of the 1987 Act (see paragraph [174] to [178].

There is no evidence from the defendant and no explanation propounded by him which would justify any contravening conduct. The absence of evidence, of course, is germane to the issue as to whether there is a basis for concluding that the defendant acted “without reasonable excuse” within the meaning of s.25(4) of the Act.

In the Plaintiff’s Outline of Submissions (paragraph [89]), the Bar Council submitted that the defendant practiced as a barrister contrary to s.25(1) and that he did so “wilfully and without reasonable excuse” and in accordance with s.25(4), and has therefore been guilty of professional misconduct.

In its written submissions, the plaintiff makes it clear that it does not, and cannot seek a declaration that any conduct after 30 September 2004 amounts to professional misconduct. However, the provisions of s.25(4) are relied upon by it in support of the application for a declaration in terms of paragraph 2 of the Further Amended Summons.

The reference in the submission to 30 September 2004 is presumably an error and it should read 30 September 2005. The 1987 Act was repealed on 1 October 2005 and was effectively replaced by the 2004 Act. Accordingly, on this basis, the Bar Council relies upon the conduct of the defendant between about 11 November 2001 and 30 September 2005 in support of its claim for a declaration as set out in paragraph 2 of the Further Amended Summons, namely, that the defendant’s conduct was done wilfully and without reasonable excuse , and that accordingly the defendant is guilty of professional misconduct within the meaning of s.25(4) of the Legal Professional Act 1987 .

In relation to this particular matter, there is a question arising from the repeal of the 1987 Act which should be dealt with. The former s.25(4) of the 1987 Act does not have an equivalent provision in the 2004 Act. Section 14(1) of the 2004 Act prohibits a person from engaging in legal practice in the New South Wales jurisdiction for fee, gain or reward unless the person is an Australian legal practitioner. A maximum penalty of 200 penalty units is prescribed. There is no equivalent provision specified in s.25(1) of the 1987 Act creating such an offence. Additionally, s.14 does not contain a provision the equivalent of s.25(4) of the 1987 Act. Clause 3 of the General Saving and Transitional provisions in Schedule 9 states that the new Act applies where there is an equivalent provision in the old Act “… in relation to anything done or being done or in existence before the commencement day …” .

The scheme of the 2004 Act is, of course, significantly different from that under the 1987 Act. Sections 496 and 497 define respectively unsatisfactory professional conduct and professional misconduct . A basis for a finding of conduct under s.496 or s.497 may include conduct consisting of a contravention “of this Act, the regulations or the legal professional rules” (s.498(a)). Part 4.2 of the 2004 Act deals with Complaints about Australian legal practitioners and specifies the requirements in relation to complaint proceedings. Part 4.8, Proceedings in Tribunals , deals with the commencement of proceedings in the Administrative Decisions Tribunal. That Part prescribes the procedures that apply to allegations of unsatisfactory professional conduct or professional misconduct.

The written and oral submissions of the parties did not address the question as to whether the declaration sought in paragraph 2 of the Further Amended Summons is available to the Bar Council having regard to the repeal of the 1987 Act. Accordingly, I will defer any further consideration of the declaration sought in that paragraph pending any further submissions. I will provide the parties with an opportunity of making any submissions.

Finally, there is one further matter concerning s.25(4). It is whether the defendant is presently a “legal practitioner” within the meaning of s.25(4). That expression is defined in s.3(1) of the 1987 Act as meaning a person enrolled in the Supreme Court as a legal practitioner . According to the affidavit of Rosemary MacDougal sworn 16 August 2005, disciplinary proceedings commenced by the Bar Council in the Administrative Decisions Tribunal, Legal Services Division were adjourned to 16 August 2005 for the hearing of submissions. There is no evidence before me as to whether those proceedings have been finalised by way of a decision of the Tribunal and, if so, whether any order has been made under the provisions of s.171C of the 1987 Act including, in particular, the provisions of s.171C(1)(a).

In those circumstances, I grant leave to the parties in this respect to file any further evidence in relation to that matter or for the Court to be otherwise advised on that matter by agreement between the parties.

I accordingly make a declaration and order in the following terms:- (1) A declaration that, since on or about 10 November 2001 until 30 September 2005, the defendant has practised as a barrister without being the holder of a current practising certificate issued by the Bar Council under Part 3 of the Legal Profession Act 1987 , in contravention of s.25(1) of the Legal Profession Act 1987 . (2) An order pursuant to s.720(1) of the Legal Profession Act 2004 restraining the defendant from practising as a barrister in contravention of s.14(1) of the Legal Profession Act 2004 by:- (a) providing, for a fee, as defined in Schedule 1 (“Fee”), advice involving the application of legal expertise in relation to a claim under any legislation or environmental planning instrument, or at common law; (b) providing, for a fee, advice involving the application of legal expertise in relation to the preparation and conduct of any proceedings, as defined in Schedule 1 (“Proceedings”). (c) providing, for a fee, advice involving the application of legal expertise, and including statutory interpretation and the application of case law, in relation to rights and obligations under any legislation or environmental planning instrument or at common law; (d) providing, for a fee, advice involving the application of legal expertise in relation to the evidence of any expert or other witness in connection with a claim under any legislation or environmental planning instrument, or at common law, or proceedings. (e) providing, for a fee, advice involving the application of legal expertise in relation to a decision, judgment, order or determination in proceedings. (3) In this order, the terms “fee” and “proceedings” have the following definitions:- “ Fee means any hourly or daily remuneration, payment for the reimbursement of expenses, retainer, salary, success fee, expectancy, direction of remuneration to a company for the provision of services by the defendant, or other form of valuable consideration. Proceedings means proceedings in any court, including any body described as a court, or any other judicial or statutory tribunal, statutory investigation, mediation, or compromise negotiation.” (4) It is noted that, in accordance with s.14(3) of the Legal Profession Act 2004 , nothing in this order is intended to interfere with the performance of any general legal work by the defendant for Walker Corporation Pty. Limited, insofar as it is done by the defendant:- (a) in his capacity as an employee of Walker Corporation Pty. Limited; and (b) in the ordinary course of his employment by Walker Corporation Pty. Limited; and (c) for which he receives no fee, gain or reward for so doing other than his ordinary remuneration as an employee of Walker Corporation Pty. Limited. (5) I grant leave to the parties to make any further submissions in relation to the declaration sought in paragraph 2 of the Further Amended Summons. (6) I grant leave to the parties to adduce any evidence in relation to the matter referred to in paragraph [177] or for the Court otherwise to be advised on that matter by agreement between the parties. (7) I grant leave to the parties to make any submissions on the question of costs. SCHEDULE OF SPECIFIC FACTUAL FINDINGS 1. The scope of work of a barrister includes the provision of advice and framing issues by pleadings in legal proceedings. Services rendered by the defendant (identified in this schedule as “WRD”) included work of that nature in relation to significant litigation (Ballast Point and Ironhill proceedings). He was involved in the drafting of points of claim, assisting in the drafting of requests for particulars and drafting answers to requests for particulars. Specific instances are:- (a) 24.7.02 Email from WRD to John Webster, subject: Ironhill v Transgrid. WRD asks John for a precedent of Points of Claim in a case similar to this. Exhibit CP 179 (b) 29.7.02 Email from WRD to Pike, Pike & Fenwick, cc: Peter Montgomery, subject: Ironhill v Transgrid, “draft Points of Claim attached, John Robertson’s sales are to be included”. Exhibit CP 178 (c) 14.10.02 Email from WRD to Susan Thogerson cc: Peter Montgomery and John Webster, subject: Ironhill WRD suggests to Mr Montgomery “add to 3 ‘in the premises the respondent is estopped from asserting that the compensation should be assessed on the basis that the wires were in existence on the date of resumption’”. Exhibit CP 166 (d) 30.10.02 Email from WRD to Michael Hewett, cc: Peter Montgomery and John Webster, subject: Ironhill v Transgrid. WRD expresses concern about paragraph 10 in Points of Claim, “I would delete it, otherwise ok”. Exhibit CP 165 (e) 30.10.02 Email from Michael Hewett to WRD, subject: Ironhill Pty Ltd and Transgrid; providing copy of points of claim and responses to particulars “incorporating yours and John’s comments”. Exhibit CP 165 (f) 3.3.03 Email from WRD to Frank Egan, cc: Peter Montgomery, subject: Ironhill. Email attaches a draft of the points of claim for management. Exhibit CP 151 (g) 5.3.03 Email from Michael Hewett to WRD. “Herewith amended draft Points of Claim for comment. Who determines the amount claimed, Rod Askew or Frank Egan?”. Reply from WRD to Michael Hewett “Michael, changes in attachment”. Exhibit CP 149 (h) 17.11.03 Email from WRD to Michael Hewett, cc: Peter Montgomery, subject: Ironhill v Transgrid. “Michael a reminder that we should amend the pleading to take the same points about the 11kv line as the 66kv. Regards Bill”. Exhibit CP 137 (i) 26.3.03 Email from WRD to Penny Hollott, cc: John Hughes, Matt Crews and John Webster, subject: Ballast Point: Particulars. WRD provides amendments to the answer to the request for particulars for the Ballast Point case. Exhibit DP 191 2. The litigious work typically undertaken by a barrister includes giving advice on the gathering of evidence including by the issue and service of subpoenae or notices to produce. The following emails reflect requests to the defendant for advice on gathering evidence and the defendant’s responses to those requests and provision of advice on obtaining documentary evidence. (a) 11.6.02 Email from WRD to Pike, Pike and Fenwick, subject: Ironhill v Transgrid, attn: Michael Hewett. “Mick, could you subpoena:- i) Transgrid files concerning transmission line ii) Coffs Harbour City Council’s files for master plan DA” Exhibit CP 184 (b) 10.2.03 Email from Gillian Walker (from Minter Ellison) to WRD cc: Penny Hollott, subject: Ballast Point Resumption. Gillian Walker requests WRD’s comments on the attached draft subpoenae. Reply on same date by WRD to Gillian Walker with amendments to one of the subpoenae. Exhibit DP 220 (c) 9.4.03 Email from WRD to Penny Hollott, cc: John Hughes, subject: Ballast Point: Resumption. “Penny, Leichhardt will give informal production. They will give us a copy of what Deacons copy and let us inspect the same material. How are you going with Caltex subpoena?” Exhibit DP 189 (d) 9.4.03 Email from John Hughes to WRD, subject: Ballast Point: Resumption. “Bill I suppose that if they don’t produce ‘informally’ then we can subpoena them?” Reply on same date from WRD to John Hughes, “yes”. Exhibit DP 189 (e) 18.12.03 Email from Penny Murray to WRD and John Webster seeking advice about whether it is necessary to issue a subpoena to obtain the contract for sale for Forsyth St, Glebe. WRD replies on same day with advice in response to the question. Exhibit DP 43 (f) 23.12.03 Email from Penny Murray to WRD and John Webster cc: John Whitehouse, subject: Ballast Point: Subpoenae for Production. Penny Murray seeks the advice of WRD and John Webster regarding her interpretation of a subpoena for production. Reply from WRD on the same date indicates he agrees with Penny’s interpretation. Exhibit DP 41 (g) 15.4.04 Email from WRD to Peter Montgomery, cc: Michael Hewett, subject: Ironhill v Transgrid. “Michael we should subpoena Blunden for reports referred to in paragraph 11 (c) and (d) and Wilcher for plans of golf course residential estates he has designed”. Exhibit CP 129 3. The work of a barrister includes the drafting or preparation of correspondence to be sent to solicitors acting in the proceedings. The defendant assisted in the preparation of letters sent to solicitors involved in the Ironhill and Ballast Point litigation. These letters were prepared for use in relation to such proceedings. Specific examples include:- (a) 13.3.02 Email from WRD to Peter Montgomery, cc: Pike, Pike and Fenwick, subject: Ironhill v Transgrid “Attn Michael Hewitt, draft responses to Transgrid letter to pp&f to be addressed to Henry Davis York for consideration and instruction….” Exhibit CP 189 (b) 8.8.02 Email from WRD to Pike Pike and Fenwick cc: Peter Montgomery and John Webster, subject: particulars of estoppel. Provides the draft particulars of estoppel to be sent by Pike Pike and Fenwick for incorporation into the points of claim. Exhibit CP 176 (c) 24.4.03 Email from Penny Hollott to WRD, cc: John Hughes and Matt Crews, subject: Ballast Point. Email attaches a draft letter to Deacons law firm for comments by WRD. Exhibit DP 185 (d) 26.9.03 Email from WRD to Michael Hewett, cc: Peter Montgomery, subject: Ironhill v Transgrid. The email suggests drafting changes to the letter to be sent to Mallesons Stephen Jaques. Exhibit CP 141 (e) 15.10.03 Email from WRD to Peter Montgomery cc: Michael Hewett, subject: Ironhill v Transgrid. The email consists of a draft response to a letter of 7 October 2003 sent by Mallesons Stephen Jacques about the 11kv on the subject land. Exhibt CP 140 (f) 31.8.04 Draft letter to be sent to Mallesons Stephen Jacques by Mr. Montgomery to WRD seeking advice as to whether the letter should be sent. Exhibit AIronhill Box M, P 13 4. A barrister’s work includes advice on both the gathering of evidence and the presentation of evidence. The defendant was involved in drafting statements of evidence to be used in the Ironhill and Ballast Point proceedings. (a) 8.12.03 Email from WRD to Sonja Lyneham, cc: Penny Murray, subject: Ballast Point Evidence in Reply. Comments by WRD on evidence in reply for Ballast Point. Exhibit DP 55 (b) 23.2.04 Email from Peter Montgomery to WRD and Michael Hewett, subject: Statement of Evidence - Draft. “Statement re B.I.G. for your comments”. Email attaches a copy of the draft statement of evidence. Reply sent on same date from WRD to Peter Montgomery, subject: B.I.G. Club-Transgrid. “Draft looks ok to me”. Exhibit CP 152, 153 (c) 22.4.04 Email from WRD to Peter Montgomery, subject: financier outline. WRD indicates he has reviewed evidentiary documents for the production of the financier outline. WRD also proposes the inclusion of additional matters. Exhibit CP 100 5. The litigious work of a barrister includes the preparation of submissions for use in legal proceedings. The defendant assisted in the drafting of submissions for use in the Ballast Point and Ironhill proceedings. Specific examples include:- (a) 1.4.04 Email from WRD to Penny Murray cc: John Webster, John Hughes and Matt Crews, subject: Ballast Point: Draft Opening Submission. “Penny, suggested amendments in red”. Exhibit DP 35 (b) 8.4.04 Email from Penny Murray to WRD, subject: Fwd: Opening statement. “For your comments”. Reply on 11.4.04 from WRD to Penny Murray and John Webster, subject: Opening Statement. “Amendments in red and green”. Exhibit DP 33 (c) 26.4.04 Email from Andy Hampson to John Webster, Ian Hemmings, Penny Murray and Bill Davison, subject: Walker Corporation Submissions-Final Version. “Good evening everyone. Please find attached submissions for your perusal….” Exhibit DP 23 (d) 5.5.04 Email from WRD to Penny Murray. Subject: Ballast point. “Penny, could you send me a copy of the submissions we gave the judge on Friday”. Reply from Penny Murray to WRD, subject: Ballast point. “Bill, we didn’t give the judge any written submissions. We said we would deal with all our submissions on 12 May. Will send you drafts as they are prepared”. Exhibit DP 20 (e) 11.5.04 Email from WRD to Ian Hemming cc: Penny Murray and John Webster, subject: Walker subs as at 11/5. “Ian, Suggestions in red”. Exhibit DP 12 (f) 5.9.04 Email from WRD to Peter Montgomery, subject: Ironhill v Transgrid. Attaches an outline of submissions prepared by WRD. Exhibit A, Box M, p 20 6. Barristers may be briefed to advise on the preparation of evidence for use in legal proceedings. This includes providing advice in relation to the preparation of evidential reports or statements of experts for use in proceedings. The defendant provided advice in relation to reports prepared by experts. Specific examples include:- (a) 8.7.02 Email from WRD to Peter Montgomery, subject: David Crompton statement. Sets out the draft statement of David Crompton. Exhibit CP 182 (b) 11.11.02 Email from WRD to Sonja Lyneham, cc: Matt Crews, John Hughes, Malcolm Rose, John Webster and Penny Hollott, subject: Ballast Point. WRD suggests that Sonja Lyneham from Planning Workshop Australia should consider whether to add a paragraph to her draft report regarding residential zoning or industrial zoning of Caltex. Exhibit DP 233 (c) 19.11.02 Email from WRD to Sonja Lyneham at Planning Workshop Australia, subject: Ballast Point Report. WRD provides comments to the Ballast Point Report prepared by Planning Workshop Australia. Exhibit D P 230 (d) 20.2.03 Email from WRD to Michael Hewett, cc: Peter Montgomery and John Webster, subject: Statement of Evidence-Graham Southwell. Amendments made by WRD to paragraphs 16, 22, 23 and 24 in statement of evidence by Graham Southwell in red and underlined. Exhibit CP 153 (e) 15.8.03 Email from WRD to Sarah Houghton, subject: Valuation Report draft-Ballast Point. Request by WRD to Sarah Houghton for a copy of the valuation report re Ballast Point for him to edit. Exhibit DP 97 (f) 5.11.03 Email from WRD to Paul Harvey-Walker cc: Peter Montgomery and Michael Hewett, subject: Ironhill v Transgrid. WRD provides suggested changes to draft document for use in Ironhill litigation and to be included in Statement of Evidence. Exhibit C P 134 (g) 8.12.03 Email from Kirrily Dunk to WRD, subject: Report in Reply - KD Wood Report. Email encloses Sydney Harbour Foreshore’s report in reply to the Statement of Evidence of KD Wood. On the same date WRD replies to the email with comments on the report. Exhibit DP 47 (h) 25.2.04 Email from WRD to Peter Montgomery, subject: Crompton draft 26 February 2004. Statement of Michael David Crompton is set out in the email. Exhibit CP 151 (i) 26.2.04 Email from WRD to David Crompton, cc: Peter Montgomery and Michael Hewett, subject: Bonville. “David, draft statement attached with Robertson’s report and practice direction set out above and in attachment. Thank you Bill” Expert Witness Practice Direction of the Land & Environment Court set out in the email. Exhibit CP 119 (j) 26.2.04 Email from WRD to David Crompton, subject: Crompton draft 26 February 2004 amd. “David I have amended paragraphs 6, 8 and 9. Statement of David Crompton set out in the email.” Exhibit CP 149 (k) 8.3.04 Email from Brian Nicholson to WRD, subject: Report Bonville Golf Estate NSW. “Bill, Revised Report and management submission for perusal”. Reply from WRD to Brian Nicholson on 8.3.04: “my amendments in red”. Exhibit CP 107, 108 (l) 3.5.04 Email from WRD to Graham Southwell, cc: Peter Montgomery and Michael Hewett, subject: Bonville. Request by WRD to consider WRD’s comments for Graham’s report in reply. Exhibit CP 88 (m) 7.5.04 Email from WRD to Neil Ingham, cc: Peter Montgomery and Michael Hewett, subject: Ironhill v Transgrid. Includes notes for the expert Mr Ingham for evidence in reply. Exhibit CP 81 (n) 14.5.04 Email from WRD to Michael Hewett, subject: Ironhill v Transgrid. Encloses draft questions for expert David Crompton drafted by WRD. Exhibit CP 77 (o) 22.7.04 Email from WRD to John Robertson, cc: Michael Hewett, Peter Montgomery and Ian Hemmings, subject: Amended Report in reply to Dempsey. Provides amendments to the report in reply to Mr Dempsey’s report. Exhibit CP 2 7. The work of a barrister includes legal advice on statutory provisions, legal instruments and case law principles. The defendant was involved in giving such legal advice. Specific instances include:- (a) 9.5.02 Email from Susan Thogersen to WRD stating: “herewith draft of Variation of Lease for Comment”. Reply from WRD to Susan Thogerson on 13.5.02, “On reflection, I would leave out recital E entirely”. Exhibit CP 188 (b) 27.5.02 Email from WRD to Peter Montogmery, subject: Costs. “This is the case I had in mind… 179 CLR 403”. Exhibit CP 187 (c) 8.7.02 Email from WRD to Peter Montgomery, subject: s 96 Application Bonville. “s.96 application preferred to subdivision because:-i) council would not want subdivision before master plan condition satisfied;ii) land tax implications of earlier final subdivision approval;iii) staging concept contemplated by master plan needs to be set out and approved in principle to enable financiers to be comfortable with project.” Exhibit CP 181 (d) 8.10.02 Email from John Webster SC to Pike, Pike and Fenwick, cc: WRD, subject: Ironhill v Transgrid, reporting on matters relating to proceedings including:-i) advice from Queens Counsel for Transgrid;ii) research of legislation;iii) grounds for argument that electricity line not authorised unless there is an easement;iv) advice to amend pleadings to read as set out in the email.Reply from WRD to John Webster on same date stating “I agree”. Exhibit CP 167 (e) 11.11.02 Email from WRD to John Webster, cc: Peter Montgomery and Michael Hewett, subject: Ironhill. Provides a reference to the case of King v Minister 76 LGRA 288 at 295 as “helpful in estoppel argument”. Exhibit CP 164 (f) 24.1.03 Email from WRD to Michael Hewett, cc: Peter Montgomery, subject: Mallesons letter 21 January 2003. WRD provides case law references to Michael Hewett following letter from Mallesons regarding the basis for evaluating the easement. Exhibit CP 159 (g) 6.3.03 Email from WRD to Peter Montgomery, subject: inisfallen. “Peter read this case: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75”. Exhibit CP 148 (h) 17.9.03 Email from WRD to Rod Askew, cc: Peter Montgomery, subject: Ironhill v Transgrid. Encloses an electronic link to a practice direction of the Land and Environment Court. Exhibit CP 142 (i) 21.11.03 Email from WRD to Frank Egan, cc: Peter Montgomery and Michael Hewett, subject: Ironhill v Transgrid. ”Frank, Hawkesbury decision attached”. Exhibit CP 136 (j) 24.12.03 Email from WRD to Peter Montgomery, subject: Ironhill. “Peter, Makita attached”. A copy of the case of Makita v Sprowles is attached to the email. Exhibit CP 132 (k) 27.3.04 Email from WRD to Ann at Bowen and Gerathy. Subject: deferred commencement consent no 0428/2003. WRD refers Ann to the case of Australand Holdings Limited v Hornsby Shire Council [1998] NSWLEC 42 and quotes from the case. Exhibit FBowen and Gerathy documents p 68 (l) 7.4.04 Email from WRD to Peter Montgomery, subject: Ironhill. Encloses a link to the decision of Hornsby v RTA. Exhibit CP 146 (m) 14.4.04 Email from WRD to Ann of Bowen and Gerathy. WRD discusses s.95 and suggests that the reasoning in the Australand case is inconsistent with s.95. Exhibit F Randwick documents P 1 (n) 9.11.04 Email from WRD to Peter Montgomery, subject: Cardiff. Attaches a copy of the latest case on flooding-Bankstown City Council v Alamdo Holdings Pty Limited [2004] NSWCA 325. Exhibit A, Ironhill Box M, P 16 (o) 16.12.04 Email from WRD to Peter Montgomery, subject: Ironhill v Transgrid. WRD reviews the judgment of McClellan Chief Judge of the Land & Environment Court (as he then was) in Ironhill v Transgrid and indicates areas where the decision could be attacked on appeal. Exhibit A, Ironhill Box M, P 28 8. The defendant also provided advice on a number of miscellaneous matters pertaining to legal proceedings. Examples of such advice include:- (a) 2.9.02 Email from WRD to Pike, Pike and Fenwick cc: Peter Montgomery and John Webster, subject: Bonville. WRD provides the advice “I would not threaten Supreme Court proceedings as a precursor to Land and Environment Court proceedings but as a consequence if the Land and Environment Court held it had no jurisdiction”. Exhibit CP 168 (b) 11.2.03 Email from WRD to Matt Crews, cc: John Hughes, subject: Ballast Point. WRD provides Matt Crews with an indicative timetable for the exchange of pleadings, exchange of reports, callover and the likely range of hearing dates. Exhibit DP 219 (c) 6.3.03 Email from Penny Hollott to WRD cc: John Whitehouse, subject: Ballast Point: Resumption Case. Penny Hollott seeks WRD’s comments on the proposed timetable for experts reports. Reply on same date by WRD to Penny Hollott indicating agreement with the proposed timetable. Exhibit DP 204 (d) 19.8.03 Email from WRD to Michael Hewett cc: Peter Montgomery and John Webster, subject: Ironhill v Transgrid-mediation. Request by WRD to Mr Hewett of Pike Pike and Fenwick to write to Mallesons Stephen Jacques advising a view is unnecessary. Exhibit CP 143 (f) 16.12.04 Email from WRD to John Hughes, subject: Charmhaven. WRD discusses cases in relation to payments which may be considered voluntary. Exhibit A, Walker Box M, P 23,24 9. The defendant provided advice on general legal matters in relation to the Ballast Point and Ironhill proceedings as well as in relation to the Rhodes and Glebe proceedings. (a) 8.7.02 Email from WRD to Margaret Lyons, cc: Revay & Unn (architects), subject: 53-55 Hereford St Glebe. WRD requesting a consultation regarding a request to him to examine the s 96 application before callover. Exhibit DP 21 (from folder entitled Archive Leichhardt PST) (b) 31.10.02 Email from WRD to Penny Hollott, “Penny, could you ascertain whether the statutory valuation has been made and communicated? If not could you press for it and say you would wish to be heard if any application is made to extend the 30 day limit?” Exhibit DP 242 (c) 12.8.03 Email from WRD to Peter Montgomery and Michael Hewett, subject: basis of claim for mediation. Observation by WRD on basis of claim for mediation re Ironhill proceedings on the assumption of demolition and underground placement of the electricity line. Exhibit CP 144 (d) 28.10.04 Email from WRD to Sylvia Hrovatin and Sally Lewis (both from Walker Corporation), subject: Rhodes. Provides advice regarding the form of notification and provides a case law reference regarding the notification requirement Exhibit A,Walker Box M, P 45