Citation: M.&S. Investments Pty Ltd v Affordable Demolitions and Excavations Pty Ltd [2025] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 17 September 2025
Judges: McHugh JA, Garling J, N Adams J
Background
The applicant company had commenced private prosecutions in the Land and Environment Court of New South Wales. Its barrister, Mr Tripodi, represented it at the first instance hearing and had also provided written advice that became significant in those proceedings.
During the first instance hearing, Mr Tripodi was called as a witness by one of his opponents, over objection. He gave oral evidence and was, in effect, cross-examined. His evidence was relevant to issues the primary judge considered when deciding the matter.
Mr Tripodi then prepared written submissions for the applicant's leave to appeal applications before the Court of Criminal Appeal and proposed to appear at the hearing of those applications. The Court raised a question about whether rule 101(e) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (the Bar Rules) prevented him from doing so.
Legal Issues
- Whether rule 101(e) of the Bar Rules applied to a barrister who gave evidence at first instance under compulsion rather than voluntarily
- Whether rule 101(e) admits any exception where the barrister's evidence was allegedly obtained through an opponent's improper strategy
- Whether, even if rule 101(e) applied, the Court should nonetheless hear the barrister given the potential costs and prejudice to his client
- Whether the Court would permit the barrister to appear in circumstances that would involve him breaching the Bar Rules
Decision
McHugh JA rejected Mr Tripodi's submission that rule 101(e) did not apply on the facts. The Rule provides that a barrister must refuse to appear on an appeal if that barrister was a witness in the case at first instance. McHugh JA held that the Rule draws no distinction between evidence given voluntarily and evidence given under compulsion. Its purpose is to avoid the embarrassment that arises when counsel is required to make submissions about their own evidence, a situation that was a certainty in this case.
Mr Tripodi also argued that his opponent had called him as a witness as a deliberate strategy to trigger the very situation rule 101(e) addresses, and that this amounted to an abuse of process forming one of the proposed grounds of appeal. McHugh JA held that even if those propositions were uncontested, rule 101(e)'s rationale would still apply. More fundamentally, those propositions were themselves contested and formed part of the substance of the proposed appeal. The Court could not resolve whether Mr Tripodi should be permitted to appear without first determining controversial questions at the heart of the appeal itself.
On the question of costs and prejudice to the client, McHugh JA acknowledged that having to replace counsel would be regrettable and potentially costly. However, those consequences flow from the operation of the Rule and do not provide a basis for construing the Rule as inapplicable. The related objects provisions of the Bar Rules, including that barristers act independently and provide services unaffected by personal interest, supported an absolute rather than qualified reading of rule 101(e).
McHugh JA declined to hear Mr Tripodi even on the basis of avoiding prejudice to his client. As an officer of the Court, Mr Tripodi was bound by the Bar Rules, which carry the force of law. Because his appearance would involve a breach of those Rules, the Court would not permit it. Garling J and N Adams J agreed with McHugh JA's reasons.
Orders Made
- The hearing of the leave to appeal applications was vacated.
- The matter was listed before the Registrar at the callover on 25 September 2025.
Key Takeaways
- Rule 101(e) of the Bar Rules applies regardless of whether a barrister gave evidence at first instance voluntarily or under compulsion from an opponent. The Rule does not distinguish between those circumstances.
- The rationale for rule 101(e) is to avoid the situation where counsel is required to make submissions about their own evidence. Where that situation is a certainty, the Rule applies in full force.
- A construction argument that rule 101(e) should not apply because the barrister's evidence was obtained through an opponent's allegedly improper strategy cannot succeed where the truth of those allegations is itself a contested issue in the proposed appeal.
- Cost and inconvenience to a client caused by the need to replace counsel, including potentially irrecoverable costs, do not provide a basis for reading an exception into rule 101(e).
- The Court of Criminal Appeal confirmed that, as the Bar Rules carry the force of law, the Court will not permit an officer of the Court to appear in circumstances that would involve breaching those Rules.
Legislation and Cases Referenced
Legislation:
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 3, 13, 101 (particularly r 101(e))
- Evidence Act 1995 (NSW), s 38
Cases cited: None stated in the judgment.