Citation: Prothonotary of Supreme Court of New South Wales v Nicholas Luke McCaffery [2005] NSWSC 1240
Court: Supreme Court of New South Wales, Common Law Division
Date: 16 June 2005
Judge(s): Latham J
Background
The defendant was admitted as a solicitor in 1986 and later, in 1993, removed himself from the roll of solicitors to be admitted as a barrister. He practised as a barrister until 30 June 2002, at which point he failed to renew his practising certificate or obtain the required indemnity insurance.
Despite holding no current practising certificate from 1 July 2002 onwards, the defendant continued to appear in courts across New South Wales, including the Supreme Court, the District Court, the Compensation Court, and the Local Court, representing himself to those courts, his clients, and his professional colleagues as a person entitled to practise as a barrister. This conduct continued until 11 December 2003, spanning 29 separate appearances.
The matter came to light when the NSW Bar Association identified one of his appearances in December 2003. The defendant subsequently wrote to the Bar Association admitting the conduct, attributing it to financial pressure and the need to support his family, and noting that he had been receiving treatment for clinical anxiety and depression. He provided a written undertaking that he would not repeat the conduct. The Prothonotary of the Supreme Court then commenced these proceedings, and separately, the NSW Court of Appeal ordered the defendant's name be removed from the roll of legal practitioners in December 2004.
Legal Issues
- Whether the defendant's appearances as a barrister without holding a current practising certificate, in contravention of s 48B of the Legal Profession Act 1987, constituted contempt of court on each of the 29 occasions charged.
Decision
All material facts were admitted by the defendant by way of an agreed statement of facts and supporting affidavit. The defendant did not contest any aspect of the evidence and repeated his apology to the Court at the hearing.
Latham J found that the admitted conduct left no doubt that the defendant had committed contempt within the meaning of s 48B(3) of the Legal Profession Act 1987. By appearing in court and representing himself as entitled to practise as a barrister on each of the 29 occasions, without holding a current practising certificate, the defendant had engaged in deliberate deception. This characterisation had already been confirmed by the NSW Court of Appeal in the removal-from-roll proceedings.
The Court found the elements of each of the 29 charges proven beyond reasonable doubt and entered convictions on all counts.
Orders Made
- The defendant declared guilty of contempt of court in that he acted as a barrister without a current practising certificate in contravention of s 48B of the Legal Profession Act 1987 on each of the 29 occasions specified in the summons.
- The defendant convicted of 29 counts of contempt.
Note: The judgment records the convictions and declarations but does not set out any further orders as to punishment or costs at this stage. Those matters appear to have been reserved for separate determination.
Key Takeaways
- Appearing in court as a barrister without holding a current practising certificate contravenes s 48B of the Legal Profession Act 1987 and constitutes contempt of court.
- Each individual appearance without a practising certificate was treated as a separate count of contempt, resulting in 29 distinct convictions arising from one course of conduct spanning approximately 17 months.
- Under s 48B(3), a practitioner who holds no current practising certificate but continues to appear and represent themselves as entitled to do so makes an implied or express misrepresentation to courts, clients, and professional colleagues that may ground contempt proceedings.
- Financial hardship and a mental health condition, while noted by the defendant as context for his conduct, did not prevent the court from recording convictions across all charges.
- Contempt proceedings of this kind are brought by the Prothonotary of the Supreme Court and operate separately from, and in parallel with, disciplinary proceedings before the Court of Appeal regarding fitness to practise.
Legislation and Cases Referenced
Legislation:
- Legal Profession Act 1987 (NSW), ss 38R, 48B, 48B(3), 213A(1)
Cases: No cases were cited in the judgment.