Council of the NSW Bar Association v Rollinson [2024] NSWCA 84
A metaphorical line (or perhaps an actual line) has been drawn through the name of Michael Kelvyn Rollinson in the roll of Australian Lawyers maintained by the Court in New South Wales. The New South Wales Court of Appeal, constituted by Justices of Appeal Leeming, Stern and Griffiths, in ordering for Mr Rollinson’s removal from the roll has brought to an end what has been a lengthy legal saga regarding Mr Rollinson’s conduct since he first ceased holding a practicing certificate in 2021, for failing to pay his renewal fee.
Mr Rollinson commenced practice as a barrister in 1995 and he was 64 when this proceeding was heard.
The relief sought by the Council
The New South Wales Bar Association (Council) applied to the Court for a declaration that Mr Rollinson was not a fit and proper person to remain on the roll of Australian Lawyers maintained by the Court in New South Wales under section 22 of the Legal Profession Uniform Law (NSW); for an order that Mr Rollinson’s name be removed from that roll, and, in the alternative a declaration that Mr Rollinson be found guilty of professional misconduct.
Notwithstanding that Mr Rollinson consented to the grant of relief sought by the Council in this proceeding, the Court had to satisfy itself that the orders were appropriate. The grant of relief sought by the Council required the Court to exercise a protective and not a punitive function. The Court was satisfied that the relief sought in orders 1 and 2 should be granted. The relief sought in the alternative did not arise for consideration.
The basis for the Council’s application
The conduct of Mr Rollinson previously held to amount to contempt in Council of the NSW Bar Association v Rollinson [2022] NSWSC 407 and criminal contempt in Council of the NSW Bar Association v Rollinson (No 2) [2023] NSWSC 1390 (the Contempt Proceedings) formed the basis for the Council’s application.
There were 16 counts of contempt in total. The occasions of contempt were characterised by the Court as “grave instances of contempt”.[1]
After failing to renew his practicing certificate in June 2021, Mr Rollinson continued to engage in legal practice. On 6 August 2021, he provided an Undertaking to the Court that he would not engage in legal practice or advertise or represent or do anything that states or implies he is entitled to do so. He breached that Undertaking 4 days later. On 16 August 2021 an order was made restraining Mr Rollinson from engaging in legal practice or advertising or representing, or do anything that states or implies he is entitled to do so. He breached that Injunction. On 16 September 2021 an order was made specifically restraining Mr Rollinson from engaging in legal practice in relation to a particular proceeding. He breached that Further Injunction the following day.
Mr Rollinson was sentenced to a term of imprisonment, suspended on the condition that for a period of three years from 8 April 2022, the respondent comply with the Injunction. However, Mr Rollinson then engaged in further conduct amounting to contempt between 6 and 20 July 2022, also breaching the conditions of his suspended sentence.
Protection of the ‘four interrelated interests’
The Court considered the removal of Mr Rollinson’s name necessary for the protection of the “four interrelated interests” that Spigelman CJ identified in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20], namely:
There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
The case against Mr Rollinson was submitted by his solicitor advocate to be one of “great tragedy”. It was submitted that “the reality of the Respondent’s situation is that it will not improve sufficiently that he will be able to have the capacity to safely practice in the future”. The Court stated that Mr Rollinson has suffered: “from an insidious, progressive medical condition which developed slowly over a period of time and produced cognitive impairment which significantly affected his judgment and action and was a primary causative factor in his offending”.
The Court identified the following as important facts of this particular case:
- Mr Rollinson was aware of the Undertaking, Injunction and Further Injunction;
- Mr Rollinson knew of his obligations under the Undertaking, Injunction and Further Injunction;
- Mr Rollinson disobeyed the Court’s injunctions repeatedly, wilfully and over a lengthy period of time.
- Mr Rollinson pleaded guilty to the contempt the subject of the Contempt Proceedings (amount to 16 counts of contempt in total);
- Mr Rollinson committed 12 contraventions of the condition of the suspended term of imprisonment.
In determining whether an order for removal from the roll should be made, the Court identified the relevant question as that set out in Council of the Law Society of NSW v Clarke [2022] NSWCA 57 at [9] per Basten, Macfarlan JJA and Simpson AJA : whether the person “is presently not fit to practise and is likely to be unfit in the indefinite future”?.
The Court determined that Mr Rollinson’s conduct described in (3) above demonstrated that he lacked one of the “essential requirements for being a fit and proper person to be a legal practitioner”, namely “preparedness to comply with the law”.[2] The Court referred to the well-established principles in Council of the Law Society of NSW v Green [2022] NSWCA 257 at [58] per Ward P, Kirk JA and Griffiths AJA reflecting the purpose of disciplinary proceedings, namely the protection of the public and its confidence in the legal profession. The Court also referred to the following statement in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322at [21] per Gleeson CJ and Heydon J: “[t]he Supreme Court holds out those whose names are on its roll of practitioners as fit and proper persons to be entrusted with the duties and responsibilities of a legal practitioner”.
The circumstances of this case were distinguished from those instances where there is no need for a retired practitioner who may have ‘lost his or her faculties’ to be struck from the role because they do not intend to practice or take advantage of their standing by reason of their admission.
[1] Council of the NSW Bar Association v Rollinson [2022] NSWSC 407, [17].
[2] Citing Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 at [181] per Payne and McCallum JJA and Beech-Jones J.
