Citation: Council of the NSW Bar Association v Rollinson [2024] NSWSC 1515
Court: Supreme Court of New South Wales
Date: 28 November 2024
Judge(s): Payne JA
Background
The respondent, a former barrister, had previously pleaded guilty in 2023 to 13 counts of criminal contempt. The contempts consisted of 12 breaches of an injunction made by Wilson J in August 2021 and one breach of an injunction made by Campbell J in September 2021, all committed between June and August 2022 while the respondent was serving a suspended sentence. The breaches involved engaging in legal practice in New South Wales and communicating with Local Court staff, contrary to court orders prohibiting him from doing so.
In the 2023 sentencing proceedings (Rollinson (No 2) [2023] NSWSC 1390), Payne JA imposed a Griffiths remand rather than proceeding immediately to sentence. A Griffiths remand is a procedure in which sentencing is adjourned to allow an offender to demonstrate compliance with specified conditions, after which the court takes that compliance into account at sentence. The conditions required the respondent to be of good behaviour, have no contact with a named individual, attend his general practitioner regularly, and attend the Memory and Cognition Clinic at Prince Alfred Hospital.
In the period between the 2023 remand and the November 2024 sentencing hearing, the Court of Appeal separately ordered the removal of the respondent's name from the roll of Australian lawyers under s 22 of the Legal Profession Uniform Law 2015 (NSW): Council of the NSW Bar Association v Rollinson [2024] NSWCA 84.
Legal Issues
- Whether the respondent had complied with the conditions imposed under the Griffiths remand in Rollinson (No 2) [2023]
- Whether listings of the respondent as a practising barrister on third-party websites, and the existence of an ABN with a "barrister" trading name, constituted any arguable breach of the existing court orders
- What sentence was appropriate for the 13 counts of criminal contempt, having regard to the respondent's compliance, his deteriorating cognitive function, and the purposes of sentencing
Decision
Payne JA was satisfied that the respondent had complied fully with all conditions of the Griffiths remand. Two compliance reports, filed in February and November 2024 respectively, confirmed that the respondent had been of good behaviour, had attended all required medical appointments, had accepted referrals to the Memory and Cognition Clinic, and had maintained no contact with the named individual. Medical reports from two clinicians at the clinic were consistent with earlier findings about the respondent's deteriorating cognitive function, and further treatment was scheduled into 2025.
A late concern arose from screenshots showing the respondent listed as a practising barrister on two third-party websites (ZoomInfo and Australian Lawyers Directory) and the ABN Lookup register. Payne JA accepted the respondent's evidence without hesitation that he had played no part in creating or maintaining those listings and was unaware of them. The court noted, by way of illustration, that the Australian Lawyers Directory also listed a current judge of the court and a barrister who had died in 2018, underscoring that the listings were not the respondent's doing. No arguable breach of any court order was established on this basis.
Regarding sentence, Payne JA found that the respondent's deteriorating cognition was a substantial cause of the offending conduct. Given full compliance with the remand conditions and the absence of any realistic prospect of further offending of the same kind, the court determined that actual imprisonment was inappropriate. The court was satisfied that declarations marking the court's disapproval of the conduct were the appropriate sentencing outcome, and this was a position jointly proposed by both parties.
Orders Made
- The Court declared the respondent in contempt on 12 occasions between 17 June 2022 and 8 August 2022 for breaching the injunction made by Wilson J on 16 August 2021, by engaging in legal practice and representing or implying entitlement to do so in New South Wales.
- The Court declared the respondent in contempt on 9 July 2022 for breaching the injunction made by Campbell J on 16 September 2021, by communicating with an employee or officer of the Local Court in relation to a specified proceeding.
- The notices of motion filed on 23 September 2022 and 11 August 2022 were otherwise dismissed.
- No order as to costs.
- The court noted the suspended sentence imposed by Beech-Jones CJ at CL remained in force but made no further order affecting it; the suspended sentence will expire according to its terms in 2025.
Key Takeaways
- A Griffiths remand can operate as an effective sentencing mechanism in criminal contempt proceedings, with demonstrated compliance during the remand period a weighty factor against imposing actual imprisonment.
- Where an offender's cognitive deterioration is found to be a substantial cause of contemptuous conduct, that finding bears directly on the appropriateness of custodial punishment at sentence.
- Declarations of contempt, without imprisonment, can constitute a sufficient sentencing outcome where full compliance with remand conditions is established and no realistic prospect of reoffending exists.
- The removal of a practitioner from the roll of lawyers does not automatically resolve all contempt proceedings arising from earlier conduct; sentencing for pre-removal contempts remains a separate matter to be finalised by the court.
- Third-party website listings describing a former practitioner as currently practising will not constitute a breach of court orders where the practitioner had no knowledge of, or involvement in, creating those listings.
Legislation and Cases Referenced
Legislation
- Legal Profession Uniform Law 2015 (NSW), s 22
Cases
- Bar-Mordecai v Rotman [2000] NSWCA 123
- Council of the NSW Bar Association v Rollinson [2021] NSWSC 1090
- Council of the NSW Bar Association v Rollinson [2021] NSWSC 1319
- Council of the NSW Bar Association v Rollinson [2022] NSWSC 407
- Council of the NSW Bar Association v Rollinson (No 2) [2023] NSWSC 1390
- Council of the NSW Bar Association v Rollinson [2024] NSWCA 84