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Disciplinary orders overturned due to deputy president’s relationship with barrister
A relationship between a deputy president of the Western Australian Civil and Administrative Tribunal and a barrister has persuaded the state’s Court of Appeal to overturn disciplinary orders made against a Perth solicitor who had been accused of professional misconduct.
Naomi Neilson
Barrie Goldsmith’s prior findings of professional misconduct and unsatisfactory professional conduct will be remitted to disciplinary proceedings as a result of the Court of Appeal’s finding that he had successfully established a reasonable apprehension of bias.
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Deputy president, Judge Henry Jackson, together with two other members of the Western Australian Civil and Administrative Tribunal (WACAT), made the alleged misconduct findings in May last year and ordered that Mr Goldsmith be barred from practice for 12 months.
The decision arose out of a dispute that Mr Goldsmith allegedly owed barrister Stephen Davies over $23,000 in fees.
Judge Jackson and Mr Davies served together on the Francis Burt Chambers board of directors for a period of eight years. They also both practised as barristers out of these chambers before Judge Jackson’s appointment to the District Court of Western Australia.
Justice Robert Mazza, Justice Robert Mitchell, and Justice Cameron Vaughan found this relationship might have given Judge Jackson some “preconceived views” as to Mr Davies’ honesty “formed during a long association as members of a board of directors”.
This finding was made based on an October 2016 phone call in which Mr Goldsmith and Mr Davies discussed fees but gave different accounts of what had been spoken about. The WACAT made adverse findings of Mr Goldsmith’s honesty and reliability.
While the Court of Appeal acknowledged there was no “direct evidence” as to how often the board met or official contact between directors, “a fair-minded observer would infer from the size, nature and scope of the business of Francis Burt Chambers that contact between the two directors must have been at least relatively regular”.
“It was inevitable that the Deputy President must have formed some view of the honesty and reliability of [Mr Davies] during that relationship,” the Court of Appeal determined.
While the Legal Services and Complaints Committee, which brought the disciplinary action, did not concede the prior association could give rise to a reasonable apprehension of bias, the Court of Appeal found it “pressed only faintly against that proposition”.
The committee’s principal argument in opposition to Mr Goldsmith’s appeal was that he had waived his right to object to the constitution of the tribunal, alleging Judge Jackson had disclosed the relationship to the parties at a directions hearing.
However, Mr Goldsmith contended the disclosure was “not sufficiently detailed” to give rise to a waiver.
The Court of Appeal agreed that in the absence of disclosure, Mr Goldsmith “cannot be said to have waived his rights to a hearing by a tribunal whose members are, and are seen to be, impartial”.
The matter will be remitted for determination by a differently constituted tribunal.
Although the other two WACAT members were not subjected to reasonable apprehension of bias claims, the Court of Appeal found that their earlier credibility findings in the proceeding would mean it would be “inappropriate” for them to determine the remitted matter.
