Case: Wentworth v NSW Bar Association [1992] HCA 24 ; (1992) 176 CLR 239
Outcome: considered
The different status and standing of the New South Wales Bar Association on the one hand and the Bar Council on the other was the subject of observation in the joint judgment of Deane, Dawson, Toohey and Gaudron JJ in Wentworth v NSW Bar Association [1992] HCA 24 ; (1992) 176 CLR 239 at 248: 'The Bar Association is a company limited by guarantee. Its articles of association provide for "a Council of the Association" [Article 45] and for its business to "be managed by the elected members of [that] Council" [Article 61] . It is that Council, constituted by its elected members, which functions as the governing body of the Bar Association and which has been referred to as "the Bar Council". The Bar Council has no separate legal identity but, as will later appear, it has specific statutory powers and functions in relation to barristers and candidates for admission to the Bar.' 23 In his written submissions, counsel for Mr Abdul-Karim submitted that the New South Wales Bar Association is not an entity having the benefit of the order for costs relied upon by the Bar Council to establish standing as a creditor nor is it or does it purport to be the applicant in the present proceedings. So much may be accepted even though the terms of the certificates certifying the orders made by the Administrative Decisions Tribunal on 17 June and 3 September 2003 which were produced by the Bar Council in response to a notice to produce might suggest that the costs orders were in favour of the Bar Association and not the Bar Council. The first certificate reads: '2. That Michael Saadey Abdul-Karim pay the costs of the Association of these proceedings in the sum of $33,300.' The second certificate reads: '3. That Michael Saadey Abdul-Karim pay the costs of the Bar Association in the sum of $98,792.' Both certificates show the applicant as being The Council of the New South Wales Bar Association and, in my view, the reference to 'the Association' in order 2 of the first certificate and the reference to 'the Bar Association' in order 3 of the second certificate should be read as being shorthand references to The Council of the New South Wales Bar Association, in other words, the Bar Council, and not the Bar Association itself. In any event, that is how I propose to read them. Such a reading is consistent with the terms of subs 566(1) of the Legal Profession Act 2004 ('the LPA') (s 171E of the Legal Profession Act 1987 (NSW)) which provides: (1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.' The term 'Council' is defined in s 4 of the LPA to mean 'the Bar Council or the Law Society Council'. 24 Indeed, counsel for Mr Abdul-Karim said there was no dispute that there is a debt owing to the Bar Council. What is disputed, he submitted, is the standing of the Bar Council to bring a proceeding in this Court as a creditor in the name of the Bar Council, rather than in the names of its identified constituent members.