Council of the NSW Bar Association v Rollinson

1. [1]

   THE COURT: By its amended summons filed on 7 February 2024, the Council of the New South Wales Bar Association (the Council) seeks a declaration that Michael Kelvyn Rollinson, the respondent, is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (LPUL), and an order removing his name from the roll.

2. [2]

   The respondent is 64 years of age and commenced practice as a barrister in 1995. From that time until 30 June 2021, he continuously held a practising certificate from the NSW Bar Association which entitled him to practise as a barrister. He ceased holding a practising certificate when he was unable to pay the whole amount of the renewal fee by the cut-off date of 30 June 2021. But as will be developed, he continued to provide legal services and he has pleaded guilty to 16 counts of contempt of the Court in relation to that conduct.

3. [3]

   Although the respondent consents to the grant of the relief described at [1] above and also admits that he is not a fit and proper person to remain on the roll, it is well settled that the Court must satisfy itself that it is appropriate to make the relevant orders sought by the Council (see Council of Law Society NSW v Jafari [2020] NSWCA 53 at [3] per Bell P, White JA and Emmett AJA agreeing). The Council’s application invokes the Court’s inherent jurisdiction (as preserved by s 264 of the LPUL and see also s 23) which, in this case, is exercised by the Court of Appeal.

4. [4]

   The parties agreed that the matter should be dealt with on the papers. They each provided helpful written submissions. The Court was also assisted by a statement of agreed facts and admissions filed on 21 February 2024. Schedule 1 to the statement of agreed facts and admissions contained the following medical records relating to the respondent:

5. [5]

   These medical reports were obtained for the purposes of sentencing and were referred to at some length by Payne JA in a related proceeding concerning the respondent (see at [7] below).

6. [6]

   Before summarising the relevant facts, it is appropriate to state that, as submitted by the respondent’s solicitor advocate, the case is one of “great tragedy”. The background facts need to be read in the context of a former barrister who suffers from an insidious, progressive medical condition which developed slowly over a period of time and produced a cognitive impairment which significantly affected his judgment and actions and was a primary causative factor in his offending.

7. [7]

   The basis for the Council’s application is that, between 6 August 2021 and 8 August 2022, the respondent engaged in conduct which has previously been held to amount to 16 counts of contempt of the Court (see Council of the NSW Bar Association v Rollinson [2022] NSWSC 407 per Beech-Jones CJ at CL (Rollinson Contempt No 1) and Council of the NSW Bar Association v Rollinson (No 2) [2023] NSWSC 1390 per Payne JA (Rollinson Contempt No 2)). In summary, the respondent repeatedly and wilfully contravened orders of the Court restraining him from engaging in legal practice or holding himself out as entitled to engage in legal practice, in circumstances where he did not hold a practising certificate.

Summary of relevant facts

1. [8]

   This summary of the relevant facts draws on the statement of agreed facts and admissions filed on 21 February 2024.

2. [9]

   As noted above, the respondent ceased holding a practising certificate after 30 June 2021. Although he was not entitled to do so, he continued to engage in legal practice.

3. [10]

   On 6 August 2021, the respondent provided an undertaking to the Court not to engage in legal practice in New South Wales, or to advertise or represent, or do anything that states or implies, that he is entitled to do so (proceeding 2021/224727) (the Undertaking). The respondent was aware of the Undertaking and knew of his obligations under the Undertaking.

4. [11]

   On 10 August 2021, in contempt of the Court, the respondent breached the Undertaking by sending an email and attachments to the Registrar of the New South Wales Court of Appeal and certain legal practitioners. The respondent engaged in that conduct, in wilful disobedience and contravention of the Undertaking.

5. [12]

   On 16 August 2021, Wilson J made an order restraining the respondent from engaging in legal practice in New South Wales, and from advertising or representing, or doing anything that states or implies, that he is entitled to do so (proceeding 2021/224727) (the Injunction). The respondent was aware of the Injunction and knew of his obligations under the Injunction.

6. [13]

   Between 23 August 2021 and 20 October 2021, in contempt of the Court, the respondent breached the Injunction by engaging in legal practice in New South Wales and representing or implying that he was entitled to engage in legal practice in the State. The respondent engaged in that conduct, in wilful disobedience and contravention of the Injunction.

7. [14]

   On 16 September 2021, Campbell J made an order restraining the respondent from engaging in legal practice in relation to the specific matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd (proceeding 2021/265078) (the Further Injunction). The respondent was aware of the Further Injunction and knew of his obligations under that injunction.

8. [15]

   Indeed, the transcript of the hearing before Campbell J included a discussion concerning the terms of the injunction about to be ordered as follows:

9. [16]

   Nonetheless, on 17 September 2021, in contempt of the Court, the respondent breached the Further Injunction in communicating with an employee or officer of the Local Court of New South Wales in relation to the matter of Vinja Holdings Pty Ltd v Style Investments Pty Ltd, appearing in that matter, and appearing as an advocate in the Local Court at Wollongong in that matter on that day. The respondent engaged in that conduct, in wilful disobedience and contravention of the Further Injunction.

10. [17]

    On 8 April 2022, in Rollinson Contempt No 1, the Court:

11. [18]

    In Rollinson Contempt No 1, Beech-Jones CJ at CL described the respondent’s conduct as involving “wilful disobedience to the Court’s orders”, “public defiance of the Courts’ orders”, “disdain for the constraints imposed by Court orders”, “a deliberate refusal to comply with a Court order” and “a blatant disregard for Court orders”.

12. [19]

    His Honour said the three counts of contempt referred to at [17] above “are all grave instances of contempt”. His Honour said that the respondent’s conduct overall “reveals a breathtaking and flagrant disregard for this Court’s authority”. His Honour described the third count as “equally breathtaking”, explaining that “[the respondent] was specifically told, and then ordered, by a Supreme Court judge not to appear in the Local Court at Wollongong the following day yet he did so”.

13. [20]

    His Honour said that “[a] deliberate, wilful and public disobedience of Court orders by a barrister strikes at the heart of the Court’s authority”, that “each [instance of contempt] represented a serious challenge to the Court’s authority that was exacerbated by [the respondent’s] status as an officer of the very Court he deliberately and repeatedly defied”, and that “the conduct in this case, if left unchecked and undeterred, threatens the Court’s ability to function”.

14. [21]

    When considering the appropriate punishment, his Honour said that “[t]he position has been reached that [the respondent] has been subject to highly specific Court orders precluding him from acting in a particular manner and he still chose not to comply”, that “the attack on the authority of the Court demonstrated by [the respondent’s] conduct is so grave that a term of imprisonment must be imposed”, and that “the only sanction that can be imposed on [the respondent] is a substantial custodial sentence”. As noted at [17(d)] above, his Honour ultimately suspended the sentence of imprisonment on condition that for a period of three years from 8 April 2022, the respondent comply with the Injunction.

15. [22]

    On 11 August 2022, the Council filed a notice of motion and an accompanying statement of charge in each of:

16. [23]

    On 31 August 2022, the respondent pleaded guilty to the eight charges of criminal contempt referred to at [22] immediately above. The respondent engaged in the offending conduct in wilful disobedience and contravention of the Injunction and the Further Injunction.

17. [24]

    On 23 September 2022, the Council filed in proceeding 2021/224727 an amended notice of motion accompanied by an amended statement of charge, bringing five additional charges of criminal contempt against the respondent, founded on breaches of the Injunction, based on conduct which occurred between 6 July 2022 and 20 July 2022.

18. [25]

    On 3 November 2022, the respondent pleaded guilty to the five additional charges of criminal contempt referred to at [24] immediately above. The respondent engaged in the offending conduct in wilful disobedience and contravention of the Injunction.

19. [26]

    The respondent’s conduct comprising the 12 counts of contempt referred to in [22(a)] and [24] above also constituted contraventions of the condition of suspension of the terms of imprisonment that Beech-Jones CJ at CL ordered on 8 April 2022 (referred to in [17(d)] above).

20. [27]

    On 15 November 2023, a hearing was conducted before Payne JA concerning:

21. [28]

    On the same day, in Rollinson Contempt No 2 Payne JA remanded the proceedings for sentence to 13 November 2024 at 10am on the condition that the respondent enter into an agreement to comply with certain conditions.

22. [29]

    It should be noted that the respondent had legal representation, including when he: (a) pleaded guilty to the various charges of contempt, (b) subscribed to each statement of agreed facts referred to at [1] of the statement of agreed facts and admissions filed on 21 February 2024, and (c) elected to proceed with a sentencing hearing in respect of the 13 charges of contempt referred to at [22] and [24] above after being granted an opportunity to obtain legal advice. In particular:

Relevant legal principles

1. [30]

   In determining whether an order for removal from the roll should be made, the question is whether the respondent “is presently not fit to practise and is likely to be unfit in the indefinite future” (see Council of the Law Society of NSW v Clarke [2022] NSWCA 57 at [9] per Basten, Macfarlan JJA and Simpson AJA). “It is not capable of more precise statement” (see Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 298; [1957] HCA 46 per Kitto J). This requires the application of established principles reflecting the purpose of disciplinary proceedings, namely the protection of the public and its confidence in the legal profession (see Council of the Law Society of NSW v Green [2022] NSWCA 257 at [58] per Ward P, Kirk JA and Griffiths AJA).

2. [31]

   Although the fact of a criminal conviction may not always disqualify a person from legal practice, the defects of character and the disgrace flowing from the conviction may be incompatible with continued practice (see Green at [62]). In Ziems at 298, Kitto J said:

3. [32]

   In RJA Cornall (in his capacity of Secretary of the Law Institute of Victoria) v JD Little (Supreme Court (Vic), Tadgell J, 11 June 1991, unrep), “a solicitor [Mr Little] of 30 years’ standing and a very well qualified lawyer”, refused to pay the prescribed fee for obtaining a practising certificate, and continued to practise without a practising certificate. The Supreme Court of Victoria made an order restraining Mr Little from practising, using a name or title implying that he is qualified to practise, or holding himself out as being qualified to practise, as a solicitor. Mr Little nonetheless continued to practise as a solicitor. He was later found guilty of contempt by the Supreme Court of Victoria for deliberate disobedience of its order. The Law Institute of Victoria then applied to strike Mr Little’s name off the roll.

4. [33]

   Tadgell J found that Mr Little was “not a fit and proper person to remain on the roll”, and made an order for the removal of his name from the roll. In reaching that conclusion, his Honour said:

5. [34]

   In Garde-Wilson v Legal Services Board (2007) 27 VAR 125; [2007] VSC 225, the plaintiff, a young solicitor, was called to give evidence in a murder trial. She answered her summons and entered the witness box, but refused to answer questions for fear of reprisals from two dangerous criminals. She was convicted of contempt of court, not because she did not fear reprisals, but because the judge found she did not show the firmness of mind expected of an ordinary person. However, in view of many mitigating factors which the judge set out, his Honour did not sentence the plaintiff to jail, but to conviction without further penalty. In that context, Bell J made the following observations at [114]-[116] about contempt and fitness to practise (note that an appeal was allowed, but not on a basis which diminished the force of these observations):

6. [35]

   In Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470, Mr McCaffery deliberately practised without a practising certificate, knowing of his obligation to obtain that certificate. He made a deliberate decision, having regard to his financial circumstances, not to obtain a practising certificate at renewal time. Nonetheless, he represented that he was entitled to practise as a barrister, by appearing in various matters and rendering tax invoices in respect of those appearances.

7. [36]

   The Court observed that “the obligation of frankness is one which the barrister is … expected to discharge in his or her dealings with the public and other members of the profession”, that the barrister’s “conduct struck at the heart of these obligations”, that “he misled the courts before which he appeared, he misled the members of the legal profession against whom he appeared and he mislead the clients for whom he appeared”, that “[h]e acted in flagrant disregard to his obligations to the administration of justice, to his obligations to the Court, the profession and the public” and that “[h]is deceit was only revealed when his conduct came to the attention of the Bar Association”.

8. [37]

   The Court “accept[ed] that the contraventions occurred by reason of the financial and psychological constraints under which the [practitioner] was suffering and in circumstances where he sought to support his family”, that his “condition may also have had an operative effect in his conduct”, and that “[t]hese matters evoke sympathy”, but nonetheless said that these matters “cannot … be permitted to obscure the serious nature of the contraventions”. The Court also observed that “the seriousness and persistence of his conduct striking as it did at the heart of his role as a legal practitioner of this Court is such that, in my opinion, he is presently not a fit and proper person to be a legal practitioner”, that “[t]he courts and the public could not repose any confidence in a person who is prepared to betray the trust expected from those who practise the law”, and that “[b]oth the public and the profession should be protected by ensuring that the opponent can no longer hold himself out as a legal practitioner of this Court”. The Court ordered the removal of the barrister’s name from the roll.

9. [38]

   In Council of the New South Wales Bar Association v Perry [2007] NSWCA 111 at [1], “[t]he nub of the complaint [was] that the [barrister] practised as a barrister without holding a practising certificate”. The Court made an order that the barrister’s name be removed from the roll.

10. [39]

    In Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 the Court observed that “a practitioner who purports to practice, or to hold himself or herself out as entitled to practice, without being the holder of a practising certificate may, by that fact alone, be guilty of professional misconduct”.

11. [40]

    It is accepted that the respondent’s mental health has some bearing on his fitness to remain on the roll, but each case necessarily turns on its own particular facts and circumstances. An order removing someone’s name from the roll may be made in cases of mental illness or loss of faculties, as explained in Re B (a Solicitor) [1986] VR 695 at 699 per Brooking J. But there is no room for bright lines in this area. The issue can arise in a myriad of circumstances. The weight to be given to individual factors in making the evaluative judgment as to the effect of mental illness on a legal practitioner’s conduct is well reflected in the following observations by Doyle CJ in Legal Practitioners Conduct Board v Trueman [2003] SASC 58 at [23] (Duggan and Gray JJ agreeing):

12. [41]

    Finally, it is appropriate to acknowledge that in the context of the Council’s particular application here (as opposed to the different context of sentencing the respondent for his criminal contempts), the Court is exercising a protective, not a punitive function. The protective nature of the function highlights the fact that the Court’s role is not to punish or shame the legal practitioner.

Consideration and determination

1. [42]

   Having regard to the matters set out above, the primary relevant features of the respondent’s conduct may be summarised as follows. The respondent:

2. [43]

   Having regard to those matters and to the application of established legal principles to the circumstances here (which we shall shortly address), we consider that the relief sought in orders 1 and 2 of the amended summons should be granted (noting again that the respondent consents to that relief). Accordingly, order 3 which is in the alternative does not arise.

3. [44]

   First, the respondent’s repeated and wilful contraventions of the Court’s injunctions, over a lengthy period spanning several months, including while serving a suspended sentence of imprisonment, demonstrates decisively that he lacks one of the “essential requirements for being a fit and proper person to be a legal practitioner”, namely “preparedness to comply with the law” (see Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 at [181] per Payne and McCallum JJA and Beech-Jones J).

4. [45]

   Secondly, the removal of the respondent’s name from the roll is important for the protection of the “four interrelated interests” that Spigelman CJ identified in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20], namely:

5. [46]

   As observed in McCaffery at [63]: “[t]he courts and the public could not repose any confidence in a person who is prepared to betray the trust expected from those who practise the law”; and “[b]oth the public and the profession should be protected by ensuring that the [respondent] can no longer hold himself out as a legal practitioner of this Court”. “[F]itness to practise requires an appreciation of the high degree of trust that the court, of necessity, reposes in legal practitioners and of their general and ongoing obligation of candour to the court in which they desire to serve as an ‘agent of justice’” (see Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 at [18] per Basten and Meagher JJA and Simpson AJA). The respondent’s conduct does not demonstrate any such appreciation and is inconsistent with it.

6. [47]

   As observed in Green at [72], “it would be inimical to the reputation of the profession, and to public confidence in the integrity of the profession and the administration of justice, for the respondent’s name to remain on the roll”. And, as the Court observed in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [21] per Gleeson CJ and Heydon J: “[t]he Supreme Court holds out those whose names are on its roll of practitioners as fit and proper persons to be entrusted with the duties and responsibilities of a legal practitioner”.

7. [48]

   Thirdly, it should be noted that, in the course of the contempt proceedings, the Court contemplated that an application would eventually be made for the removal of the respondent’s name from the roll. Beech-Jones CJ at CL in Rollinson Contempt No 1 said at [77]: “I regard it as almost a virtual certainty that either by way of being refused a practising certificate or removed from the roll of practitioners (or both) [Mr Rollinson] will not (lawfully) practice again”, that “his conduct has destroyed his career”, that “he will suffer the destruction of his career from his actions regardless of the punishment imposed at this point” (at [102]), and that “[a]t some point in the medium term his removal from the profession should result in the cessation of any opportunity he may have to breach the Injunction” (at [84]). His Honour’s observations do not, of course, bind this Court, but they indicate that the respondent was put on early notice as to the possibility of further action being taken against him.

8. [49]

   Fourthly, this case is not merely an instance of the fact described by Brooking J in Re B at 699 that “[r]etired practitioners grow old and may ultimately lose their faculties, becoming unfit to practise; they have no intention of practising; no-one would suggest that their incapacity requires them to be struck off the roll”. As Brooking J said, in such cases, “[t]here is no need for protection, for they intend neither to practise nor to take advantage in any other way of the standing which they have by reason of their admission”. Rather, here, the respondent has repeatedly engaged in legal practice and held himself out as entitled to do so: (a) contrary to repeated Court orders restraining him from doing so, (b) without holding a practising certificate, and (c) even after receiving a (suspended) sentence of imprisonment for his contraventions. Those facts demonstrate that it is apposite to apply in this case two further observations that Brooking J made in the same case, namely that “if a lawyer who is mentally ill intends to practise his profession, or to make some indirect use of his status as a person admitted to practise, the protective jurisdiction may well have to be invoked against him”, and that “[t]o say this is of course not to suggest that in the consideration of this ultimate question of fitness to practise regard may not be had to conduct”.

9. [50]

   Fifthly, it is plain from the medical reports that the respondent’s repeated and flagrant conduct which resulted in the findings of multiple contempts of Court were causally affected by his mental illnesses and that it is likely that he will further deteriorate over time. Professor Rosenfeld diagnosed the respondent as suffering from “early but likely progressive vascular brain disease” which “has resulted in mild cognitive impairments and an early dementing illness”. Professor Rosenfeld described brain disease and cognitive impairments that accompany the progression of the respondent’s dementing illness as “insidious, gradual and progressive”. Professor Rosenfeld opined that the respondent “may continue to suffer with symptoms and problems relating to the progression of underlying vascular disease as well as issues related to the worsening of cognitive function”. He recommended ongoing support, treatment and management strategies for the respondent which he said “are likely to reduce the impact of, and reduce or delay problems relate [sic] to, the progression of his illness”.

10. [51]

    In his report dated 6 April 2023 (which was finalised after the results became available of the respondent’s MRI Scan on 28 February 2022), Dr Ellis said that it was now clear that the respondent suffered from a mild neurocognitive disorder and had clearly demonstrated vascular damage to his brain. Dr Ellis said that he remained of the view that the respondent pre-morbidly suffered from a schizoid personality disorder. He added that, with the onset of cognitive problems related to the respondent’s vascular dementia, “it is likely that his personality deficits have been coarsened, and his ability to modify his behaviour in response to social cues has been further impaired…”.

11. [52]

    In her written submission in respect of the Council’s application, the respondent’s solicitor candidly acknowledged that “the reality of the Respondent’s situation is that it will not improve sufficiently that he will be able to have the capacity to safely practice in the future”. That acknowledgement was properly given and is supported by the medical evidence.

12. [53]

    Sixthly, it is relevant (but not determinative) that, in providing his consent to the relief sought in the Council’s amended summons, the respondent was (and is) represented by experienced legal practitioners who are familiar with the history of the respondent’s conduct the subject of the contempt proceedings. There is no evidence or submission to suggest that the respondent lacks legal capacity despite his diagnosis of early onset dementia. Dr Ellis said in his report dated 6 April 2023 that:

13. [54]

    The Court is grateful to the legal representatives for both parties for the valuable assistance they provided in this vexed proceeding.

Costs

1. [55]

   Normally, costs follow the event and are assessed on the ordinary basis unless the Court rules otherwise. Section 303(1) of the LPUL does not apply absent a finding of unsatisfactory professional conduct or professional misconduct.

2. [56]

   It is relevant to note, however, that the Council did not press for an order as to costs in its favour.

3. [57]

   In these circumstances, although in proceedings of this kind costs normally follow the event (see Green at [97]-[100]), there should be no order as to costs.

Conclusion

1. [58]

   For all these reasons, the relief sought in orders 1 and 2 of the amended summons should be granted, such that there should be:

   1. (1)

      A declaration that Michael Kelvyn Rollinson is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law (NSW).

   2. (2)

      An order that the name of Michael Kelvyn Rollinson be removed from that roll.

2. [59]

   There should be no order as to costs.