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Barrister fails to appeal order to remove his name from roll of practitioners
A barrister who owed the Australian Taxation Office in excess of $550,000 has failed to have orders removing his name set aside but was permitted a downgraded finding from professional misconduct to unsatisfactory professional conduct after the Civil and Administrative Tribunal failed to take into account mitigating circumstances.
Naomi Neilson
As a result of action taken by the Australian Taxation Office (ATO), a barrister based in NSW was ordered to meet certain tax reporting and payment conditions but failed to regularly and satisfactorily do so. As a result, the state’s Bar Council pursued discipline hearings and was successful in having his name removed from the roll.
In 2012, the Bar Council imposed 11 financial management and reporting conditions on the barrister’s practising certificate, including requiring him to meet tax obligations and to set aside sufficient money to meet his tax liabilities. A financial expert was also ordered to control his affairs and facilitate compliance with the conditions.
The 11 conditions were meant to apply between October 2012 and June 2015, but the barrister rarely satisfied his tax reporting and payment obligations on time, did not set aside adequate funds and did not enable a financial expert to control his affairs. While his accountants did provide some quarterly reports, only one of those reports contained the information that was asked for by the Bar Council.
From October 2012, the barrister continued to spend more than his disposable income and in doing so deferred payment of his tax liabilities. The Supreme Court also found that he continuously prioritised personal expenses ahead of his tax liabilities, in part to avoid banks and other lender from foreclosing.
In mid-2013, he paid the ATO $7,500 and made few significant payments from then onwards. His failure to comply with the conditions was “not sporadic” and from the outset “he failed to engage with the critical conditions requiring that he place his financial affairs under the control of a financial expert”, the Supreme Court noted.
“At the same time, he demonstrated that he was not prepared to comply with the conditions upon which he had been permitted to continue to practice,” the court added. “There is in the nature of the appellant’s conduct a flagrant and unacceptable disregard for his statutory obligations to comply with financial management conditions and his underlying tax lodgement and tax obligations.”
Due to these findings, the Supreme Court found that NCAT was correct in ordering that the barrister’s name should be removed from the roll of practitioners.
In the original proceedings, the Bar Council alleged that the barrister had given “knowingly false” information relating to the sale of a property. When the Bar Council commenced an investigation into his failure to comply with the financial conditions, the barrister claimed to own a half-share in a property and told them that if he was unable to arrange a loan to pay off his outstanding tax liabilities, he would sell the property and discharge the debts to the ATO.
However, some years later, the property was sold for $1.7 million and the sale was paid to his wife. After he was asked about it, he told the Bar Council that he had transferred his half to his wife in 1996 and that she was the sole owner of it. He explained that after it was signed over, it was not registered and forgotten about.
The Supreme Court found it was not open to the tribunal to find that the statements were knowingly false, that there was no allegation that this conduct in relation to the net proceeds of the sale was dishonest and no finding that it was misleading. The sale was also not in breach of any practising certificate conditions.
The court added that the barrister’s work and financial circumstances, his depressive disorder and his wife’s opposition to the use of the funds to pay his tax liability may not have excused his conduct but “certainty mitigated” the seriousness. Due to this, it found it was not sufficiently serious to constitute a professional misconduct finding.
“For these reasons, ground of appeal should be allowed in part. The tribunal should have held that his conduct was unsatisfactory professional conduct, and which did not justify a finding that he was not a fit and proper person,” the court found.
Although the court allowed the appeal in part, there was no wrong or miscarriage that had been occasioned by the tribunal errors to warrant the appeal to go ahead.
The entire judgement can be found on AustLII: DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 (28 April 2021).
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
