Nash v Council of the New South Wales Bar Association

[2013] NSWCA 466

NSW Court of Appeal

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Interrogate

Catchwords

1. Legal Profession
2. › Professional misconduct
3. › Barrister
4. › Knowingly giving false evidence in proceedings as a party
5. › Whether Tribunal erred in finding evidence was knowingly false
6. › Whether Tribunal failed to consider relevant evidence
7. › Legal Profession Act 2004 (NSW), ss 497, 562
1. Evidence
2. › Credibility
3. › Inconsistent statements
4. › Whether persistent denial of facts shown to be false by objective evidence establishes deliberate falsehood or honest mistake
5. › Distinction between honest mistake and deliberate falsehood
6. › Evidence Act 1995 (NSW), s 140
1. Administrative Law
2. › Tribunals
3. › Appeal from Administrative Decisions Tribunal
4. › Appeal by way of rehearing
5. › Whether Tribunal's findings affected by error
6. › Legal Profession Act 2004 (NSW), s 729A

Quick Take

A finding of professional misconduct based on knowingly giving false evidence requires the tribunal to clearly identify what was falsely disclaimed and to ensure the finding of dishonesty is not inconsistent with the practitioner's own disclosures. However, persistent denial of facts shown to be false by objective evidence, combined with illogical and opportunistic explanations, can support a finding of deliberate falsehood rather than honest mistake. The distinction between honest mistake and deliberate falsehood from [name withheld] v The Queen applies in disciplinary proceedings, but the circumstances — including the significance of the matter denied and the weight of contradicting evidence — determine whether mistake is excluded.