In Council of the New South Wales Bar Association v Loukas [2025] NSWCATOD 39 (17 April 2025), the Judicial Deputy President, and two members of the NSW Tribunal imposed sanctions on a practising barrister in respect of his rude and intimidating conduct towards an opposing client and that client’s representative, and also for misrepresenting his status in acting for a client. The case constitutes an example of what a barrister ought not do in the course of attempting to assist a family friend. The Tribunal wrote:
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Instrument of Consent
[10] On 7 February 2025 the parties filed an Instrument of Consent and an Agreed Statement of Facts under s 144 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act). It is convenient to set out the Instrument of Consent in full (subject to the confidentiality orders):
INSTRUMENT OF CONSENT
CONSENT
The NSW Civil and Administrative Tribunal, having found that the conduct of the respondent particularised in the Agreed Statement of Facts below amounts:
(a) in respect of Ground One, to professional misconduct; and
(b) in respect of Ground Two, to unsatisfactory professional conduct
makes by consent, orders that the respondent:
1. be reprimanded;
2. pay a fine to the Applicant of $5,000;
3. undertake, complete and pass any reasonable educative course that the applicant requires him to undertake being the following courses (or any other course as agreed by the Applicant) within 12 months from the date the orders are made:
a. NSW Bar Association CPD seminar entitled ‘Mastering Direct Access: Navigating Pitfalls and Best Practices’;
b. Law Society of NSW seminar entitled ‘Deepening your knowledge of Domestic and Family Violence: Mastering a trauma informed approach to practice’; and
c. In Good Faith Foundation CPD seminar entitled ‘Trauma informed Legal Education’.
4. provide a statutory declaration to the applicant within 1 month of completing the educative courses referred to above to confirm that he has completed the learning and to describe what he has learnt within those courses;
5. agrees to pay the applicant’s costs and disbursements incurred to date on the indemnity basis,
and further makes orders by consent that Grounds 3 and 4 in the Application filed 8 August 2023 be discontinued.
AGREED STATEMENT OF FACTS
INTRODUCTION
1. At all material times the respondent was a lawyer within the meaning of s 261 of the Uniform Law and an Australia legal practitioner within the meaning of s 6 of the Uniform Law.
(a) The respondent was admitted as a Lawyer of the Supreme Court of New South Wales on or about 10 October 1997 under the name of ‘William Vasilios Loukas’.
(b) The respondent was first issued with a practising certificate from the applicant on 5 May 2010 under the name of ‘William Vasilios Loukas’.
(c) From the 2011/2012 practising year, the respondent’s practising certificate has been issued in the name of ‘Bill Loukas’.
(d) Restrictions were placed on the respondent’s practising certificate for the 2020/2021 practising year requiring him to comply with all outstanding Continuing Professional Development requirements for the 2019/2020 practising year by 9 October 2020.
(e) The conditions were removed on 26 October 2020 and the respondent has held a practising certificate without restrictions since that time.
(f) The respondent currently holds a practising certificate as a barrister.
2. On 2 October 2019 [Person A] made a complaint to the Office of the Legal Services Commissioner (OLSC) about the respondent. The complaint was referred to the Council of the New South Wales Bar Association on 20 October 2019.
3. [Person A] died of a toxic drug overdose on 2 April 2020.
4. The OLSC communicated to the applicant on 11 May 2020 that it was appropriate that [Person B] and [Person A’s father] (together, [Person A]’s parents) take the place of [Person A] as the complainants.
5. At its meeting on 1 September 2022, the applicant resolved to make three further complaints about the respondent.
6. At its meeting on 9 February 2023 the applicant considered the 4 grounds of complaint made against the respondent. At the same meeting, the applicant resolved that all 4 of the grounds of complaint be the subject of proceedings before the New South Wales Civil and Administrative Tribunal pursuant to s 300 of the Uniform Law.
COMPLAINT
7.On or about 25 August 2019 [Person A] separated from her husband, [the Client]. She left him a 3-page handwritten letter outlining that she feared him and asserting that she had been controlled by him for a number of years. The letter outlined a coercive and controlling relationship. The letter contained a plea to be left alone by [the Client] and for him to not make any personal contact with her.
8.At that time, [Person A] left [regional New South Wales] (where she lived with [the Client]) to live with her parents in [another state].
9.On 30 August 2019 there was email correspondence between [the Client] and [Person B] proposing a division of the parties’ assets. In the email sent at 12.51pm, [Person B] stated:
Note that all communications from this email are under instruction from [Person A] and there is no alternative communication method for you
10. [The Client] sent an email to [Person B] at 1pm on the same day that stated:
I refuse to have any communication with you, [Person B], about any of this. You are not a party of this marriage. Anything further will come from my lawyer.
11. [Person B] sent a further email to [the Client] at 1.17pm on the same day:
No problem [the Client],
Please pass on my contact details to them as a means by which to contact [Person A]. None of her old contact details are current and will not work in communicating with her.
12. The respondent is [a relative] of [the Client]. The respondent was introduced to [Person A] about 5 years prior to their wedding. On or about 25 August 2019 [the Client] approached the respondent to assist him in relation to the separation and the communications he had received from [Person B]. He was provided with the hand-written three page letter from [Person A] dated 25 August 2019 and the above mentioned emails from [Person B].
13. On 31 August 2019 the respondent sent an email at 11.33am from his chambers’ email address, Bill Loukas, Barrister at law, Sir James Martin Chambers. The email attached a letter on the respondent’s letterhead. The letter stated, “I act for [the Client], (Hereafter ‘my client’) on a direct access basis”.
GROUND ONE — The respondent engaged in professional misconduct by acting unprofessionally, rudely and in an intimidating manner towards [Person A] and [Person B] in his written correspondence.
AGREED FACTS OF GROUND ONE
14. On 4 September 2019 the respondent sent an email at 1:09pm from his email address at Sir James Martin Chambers to [Person B]. The email was entitled “REQUIREMENT of CONFRIMATION (SIC) OF [Person A’s] WELL-BEING”. The email stated:
• “[The Client] and I (and the entire Loukas and [the Client’s] families) are extremely concerned for Person A’s well-being”;
• “The bizarre contents of the letter to [the Client], purportedly written by [Person A]”;
• “[Your] directive to control all contact with her, especially in light of her frequently expressed opinion to [the Client] and many others, that her relationship with yourself is fraught with conflict and detrimental to her mental health…”;
• “We regret that we cannot exclude the reasonable possibility that [Person A] is being controlled by you, has undergone some form of florid psychiatric episode or is otherwise unwell”;
• “[Person A] is an adult and adults should be capable of accounting for their actions…It is time for [Person A] to step up and be an adult”;
• “[She] was old enough to decide to marry, to sign a marriage certificate, sign mortgage documents etc, and she is old enough to end all of those relationships on her own too”; and
• As a matter of common decency I ask that you exercise whatever influence you have over [Person A] and have her FaceTime call him in order that he can be assured that she is well and that her decision is her own.
15. On 5 September 2019 the respondent sent an email at 11:44am from his email address at Sir James Martin Chambers to [Person B] entitled “MOVING FORWARD”. In the email, he stated:
[The Client’s] position is that nothing will happen, no decision will be made, no negotiation or agreement unless it is made between [Person A] and [the Client] speaking and corresponding with each other”.
[Person A] has his number and she needs to talk to him either by video chat or in person and he needs to talk to her.
Until that communication and resolution occurs between them, there will be no change in [Person A’s] obligation to pay the rent, utilities, mortgage, or rates.
16. On 5 September 2019 the respondent sent an email at 1:23pm from his email address at Sir James Martin Chambers to [Person B]. The email was entitled “MOVING FORWARD”. In the email, the respondent stated that “for [Person A] to refuse to talk to [the Client] is cowardice and cruelty, plain and simple”.
17. On 14 September 2019 the respondent sent an email at 1:56pm from his email address at Sir James Martin Chambers to [the Client], copying in [Person B]. The email to [the Client] stated that he was “perfectly entitled to correspond with your wife and I encourage you to do so, in order to ensure that [Person A] is safe and not being further psychologically harmed by [Person B]”.
18. The email also provided legal advice, in relation to defending an AVO application and seeking legal costs against [Person A].
19. On 14 September 2019 the respondent sent an email at 2:05pm from his email address at Sir James Martin Chambers to [Person B] forwarding an email dated 14 September 2019 from the respondent to the Client, copied to Person B. The email was entitled “HI [Person A]” and included the email advice to the Client (referred to above) sent on 14 September 2019 at 1:56pm.
20. On 7 October 2019 the respondent sent an email at 8:26pm from his email address at Sir James Martin Chambers to [Person A] and [Person B] entitled “ACTION REQUIRED BY YOU TO PREVENT INSTIGATION OF DEFAMATION PROCEEDINGS”. The email attached a letter on the respondent’s letter head threatening to commence legal proceedings for defamation against [Person A].
21. The respondent’s written correspondence in the email dated 5 September 2019 at 1.23pm was unprofessional and inappropriate and amounted to professional misconduct. The respondent’s conduct in sending the letter amounted to a failure to maintain a reasonable standard of competence and diligence.
22. The respondent’s written correspondence in the email dated 14 September 2019 at 1:56pm, was unprofessional, inappropriate and amounted to professional misconduct. The respondent’s conduct in sending the letter amounted to a substantial failure to maintain a reasonable standard of competence and diligence.
23. The respondent’s written correspondence in the letter dated 7 October 2019 to [Person A] and [Person B] was unprofessional and amounted to professional misconduct. The respondent’s conduct in sending the letter amounted to a substantial failure to maintain a reasonable standard of competence and diligence.
24. On numerous occasions in his Affidavit sworn 13 December 2023 the respondent concedes the regrettable nature of the particularised correspondence, as identified in paragraph 13 of the respondent’s written submissions filed on 6 May 2023.
25. The respondent also admitted contrition and regret in relation to the particularised correspondence in his 2022 correspondence with the Bar Council, as listed in paragraph 14 of the respondent’s written submissions filed on 6 May 2023.
GROUND TWO — The respondent engaged in unsatisfactory professional conduct by misrepresenting to the applicant the professional nature of his relationship with [the Client] by asserting that he was engaged in a private capacity and not in his capacity as [the Client]’s barrister, noting however that the respondent did not deliberately misrepresent to the applicant the professional nature of his relationship with [the Client], and that any such misrepresentation was inadvertent.
AGREED FACTS OF GROUND TWO
26. On 31 August 2019 the respondent sent an email at 11:33am from his email address at Sir James Martin Chambers to [Person B]. The email attached a letter on the respondent’s letter head. The letter stated: “I act for [the Client] (thereafter ‘my client’) on a direct-access basis”.
27. On 1 September 2019 the respondent sent an email from his email address at Sir James Martin Chambers to [Person B] entitled “In the separation of [the Client] and [Person A] Notice of Intention to Commence Legal Proceedings”. The email discusses the division of property and includes the statement “without prejudice save as to costs”.
28. On 5 September 2019 the respondent sent two emails from his email address at Sir James Martin Chambers to [Person B]. The emails are signed off as follows:
Bill Loukas
Barrister-at-Law
29. On 14 September 2019 the respondent sent an email from his email address at Sir James Martin Chambers to [Person B] forwarding an email dated 14 September 2019 from the respondent to [the Client]. The email to [the Client] included legal advice in relation to defending an AVO application and seeking legal costs against [Person A].
30. On 9 April 2020 the respondent sent an email from his email address at Sir James Martin Chambers to Danielle Harris, the then solicitor for [Person A], where he stated that he is, “the legal representative of” [the Client].
31. On 15 January 2021 the applicant wrote to the respondent and (amongst other things) requested that the respondent provide an answer to the following question:
Were you engaged by [the Client] on a direct access basis? If yes, were you engaged in a private capacity or in the position as barrister?
32. On 23 February 2021 the respondent sent the applicant a letter, where the respondent stated:
I was engaged in a private capacity at the request of my [relative], [the Client] to assist him in dealing with correspondence received from [Person B], as invited by her. I did not act pursuant to a cost’s agreement, a retainer or formal instructions and I did not charge a fee.
33. The respondent’s response to the applicant misrepresented the professional nature of his relationship with [the Client] by asserting, contrary to the fact, that he was ‘engaged in a private capacity’ and not in his capacity as [the Client]’s barrister.
34. The response is inconsistent with correspondence set out above, which establishes that the respondent was engaged in the provision of legal services as a barrister.
35. On 4 March 2022 the Respondent wrote to the Bar Association stating: “In the circumstances I accept the Committee’s preliminary finding that I was acting in my capacity as a barrister”.
36. At paragraph [113] of the respondent’s affidavit sworn 13 December 2023, the respondent stated that he did not deliberately misrepresent to the applicant the professional nature of his relationship with [the Client] in his letter of 23 February 2021, and that such misrepresentation was inadvertent. The respondent stated that he was wrongly focusing on the fact that he was attempting to assist [the Client] privately, and on the lack of a retainer, costs agreement or fees.
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[50] Despite the parties agreeing to the disciplinary facts and form of protective orders, the Tribunal must be independently satisfied that the admitted conduct of the barrister is properly characterised as professional misconduct or unsatisfactory professional conduct, and that the protective orders are appropriate in the circumstances. The discretionary nature of the Tribunal’s power under s 144 has been acknowledged in several decisions including: Council of the New South Wales Bar Association v Butland[2009] NSWADT 177 at [29]; Legal Services Commissioner v Maddock[2021] NSWCATOD 46 at [4],[17]–[18]; Council of the Law Society of New South Wales v Feng[2023] NSWCATOD 129 at [7]; Council of the Law Society of New South Wales v Elina[2021] NSWCATOD 98 at [4], [34]–[35].
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[55] As noted above, professional misconduct may be made out where the conduct is unsatisfactory professional conduct that involves a “substantial” or “consistent” failure to reach or maintain a reasonable standard of competence and diligence: s 297(1)(a). Relevantly, for unsatisfactory professional conduct to be found under this provision, the conduct must be in connection with the practice of law: s 296.
[56] Alternatively, professional misconduct may be made out, whether in connection with legal practice or otherwise, where the conduct would “justify a finding that the lawyer is not a fit and proper person to engage in legal practice”: s 297(1)(b).
[57] Only one of either subsections (a) or (b) of s 297(1) of the Uniform Law need be proved, to warrant a finding of professional misconduct: Tangsilsat at [62]–[68].
[58] There are no precise limits to, or fixed categories of, conduct that may warrant the imposition of disciplinary sanctions on a legal practitioner: Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 199 –200; Bechara v Legal Services Commissioner(2010) 79 NSWLR 763; [2010] NSWCA 369 at [44].
[59] In Kennedy v Council of the Inc Law Institute of New South Wales (1939) 13 ALJ 563, Rich J said that:
…a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure to either understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of the profession in whom confidence could be placed…
[60] In Council of the Law Society of New South Wales v Webb[2013] NSWCA 423 the NSW Court of Appeal said at [22] in relation to the definition of “professional misconduct” in s 497(1)(a) of the former Legal Profession Act 2004 (which is in almost identical terms to s 297(1)(a) of the Uniform Law):
The distinction made by that definition is between conduct which involves a “substantial” failure to reach or maintain the required standard and conduct which involves a “consistent” failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer’s competence and diligence and thereby warrant the description “substantial”. The reference to a “consistent failure” is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a “consistent failure” in the sense in which that expression is used in this definition.
[61] The Court of Appeal in New South Wales Court of Appeal in Council of the New South Wales Bar Association v EFA (pseudonym)(2021) 106 NSWLR 383; [2021] NSWCA 339 stated the relevant considerations when determining who is a fit and proper person under s 297(1)(b) at [169]:
…as the majority judgments in Ziems, (particularly that of Kitto J show), a finding of unfitness involves more than an objective analysis of the impugned conduct, absent often relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character.
In connection with the practice of law
[62] In Council of the New South Wales Bar Association v Costigan[2013] NSWCA 407 the Court of Appeal made extensive observations in relation to the statutory term “in connection with” at [51]–[52]. It is a relational term, that can be described as “having to do with”. The nature and strength of that relationship may vary.
[63] The test for whether a person is engaged in the provision of legal services as a barrister is set out in s 6 of the Uniform Law, which relevantly defines “engage in legal practice” to include “practise law or provide legal services, but does not include engage in policy work”. Legal services are defined to mean “work done, or business transacted, in the ordinary course of legal practice”: s 6 of the Uniform Law; Council of the New South Wales Bar Association v Mack[2024] NSWCATOD 120 at [41].
[64] In determining whether a practitioner’s activities occur in connection with his or her legal practice, the Tribunal is to assess the true character of the overall dealings, specifically, the practitioner’s activities and the relationship with the client: Vaughan v Legal Services Board(2009) 25 VR 536; [2009] VSCA 187 at [60] –[61], referring to Carr v Swart[2007] NSWCA 337; Solicitors’ Liability v Gray (1997) 77 FCR 1.
Offensive conduct and misrepresentation
[65] Here, we are particularly concerned with two types of conduct: first, what might be described as offensive conduct; and second, misrepresenting the professional nature of the relationship between barrister and client.
[66] Offensive conduct has been held capable of constituting professional misconduct. For instance:
(1) In Council of the Law Society of New South Wales v Sideris[2024] NSWCATOD 3, the practitioner was found guilty of professional misconduct for, inter alia, sending discourteous correspondence to a solicitor and to the representatives of the client of that solicitor in proceedings.
(2) In Council of the Law Society of New South Wales v Malakhov[2023] NSWCATOD 182, the Tribunal accepted that the solicitor was guilty of professional misconduct by, in the course of representing a client in domestic violence proceedings, making a statement to the wife of the client which grossly exceeded the legitimate assertion of the rights of his client in a domestic violence dispute (contrary to r 34.1.1 of the Uniform Rules) that intimidated her or could reasonably be seen to intimidate a person in her position.
(3) In Council of the Law Society of New South Wales v R[2018] NSWCATOD 157 (King) the practitioner forwarded a letter to the Associate of a Judge who was presiding over proceedings in which the respondent’s client was a party. The letter contained comments which were derogatory of the client and the partner of a client, and contained information of a confidential kind and was prima facie the subject of legal professional privilege. The Tribunal considered that this conduct, aggregated with the practitioner’s subsequent threatening behaviour and improper demand for immediate payment of costs, constituted professional misconduct.
(4) In Griffin v Council of the Law Society of New South Wales[2016] NSWCA 364 the practitioner, after the dismissal of an extension of time application in the Federal Court, sent an email to the Judge’s Associate attaching a letter containing serious allegations against the Judge and requesting that the Judge vary his decision.
(5) In Ellis v Law Society [2008] EWHC 561, the practitioner conducted “inappropriate, offensive and derogatory” correspondence directed to and about the Law Society, a litigant, members of the judiciary and others which “crossed the line” in terms of acceptable criticism: at [33].
[67] In relation to the conduct the subject of Ground Two, the misrepresentation was inadvertent. Nevertheless, the conduct occurred in the context of a professional conduct investigation. Owing to the high standards generally expected of legal practitioners, a practitioner subject to an inquiry is under a duty to assist with the investigation in good faith. The applicant relies on the following cases to support the proposition that careful attendance to these obligations is a part of proper professional conduct:
(1) In Legal Practitioners Conduct Board v Lind (2011) 110 SASR 531; [2011] SASCFC 104, the practitioner failed to assist the Board over the course of its inquiries in relation to the practitioner’s unprofessional conduct and failed to respond to repeated requests of the Board over several years. The Supreme Court of South Australia considered the practitioner’s unprofessional conduct in her dealings with the Board “very serious”: at [16].
(2) In Law Society of New South Wales v Grech [2006] NSWADT 73 the Tribunal found that the respondent had clearly and unjustifiably failed to assist and co-operate with the Law Society in its investigation of a complaint, where he was “obliged to provide appropriate assistance”: at [109]. The respondent sent a letter in response to the Law Society’s various letters which did not provide any answers to the Society’s questions, and also failed to forward to the Society many of the documents it requested: at [107] and [110].
(3) In Council of the New South Wales Bar Association v Dwyer[2015] NSWCA 302, the practitioner engaged in conduct on six separate occasions that was knowingly deceptive or misleading of the Council in dealings with the Council in relation to his position and conduct as a legal practitioner. The Court of Appeal concluded that a person who did so is guilty of professional misconduct and, further, “is not a fit and proper person to remain on the Supreme Court Roll.”: at [32].
(4) In Malfanti v Legal Profession Disciplinary Tribunal[1993] NSWCA 171 at 7 the Court of Appeal recognised the principle that a solicitor who appears before the Tribunal is bound to assist in its investigations.
[68] In Johns v Law Society of New South Wales[1982] 2 NSWLR 1 Moffitt P said at 6:
The obligation to inform and assist has always been regarded as resting upon a solicitor or barrister whose conduct is the subject of an inquiry whether by the court or the committee, as appears in the court’s observations on numerous occasions, an example being in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136, at p 141.
In Criddle v Monck [2025] WASCA 44 (1 April 2025), the Court of Appeal of Western Australia addressed whether counsel who failed to elicit and adduce obtainable evidence inconsistent with a complainant’s account against his client upon a criminal trial was entitled to immunity from a civil claim for damages. The accused client was convicted, but the conviction was overturned on appeal on account of a found miscarriage of justice arising in part from counsel’s failure to obtain critical evidence and cross-examine the complainant upon that evidence. Subsequently the client was acquitted on retrial.
The court wrote:
Summary
[1] The appellant was convicted after trial of a serious sexual offence against a child. The respondent acted as the appellant’s counsel at that trial until her retainer was terminated by the appellant. The appellant successfully appealed against his conviction on the ground that a miscarriage of justice arose in part from the respondent’s failure to obtain critical evidence and cross-examine the child complainant on that evidence. The appellant was subsequently acquitted on retrial.
[2] The appellant then commenced the primary proceedings against the respondent alleging that the respondent’s negligent conduct of his criminal defence caused him to be incarcerated for 15 months between his conviction and the orders made on appeal. The primary judge awarded summary judgment against the appellant in favour of the respondent on the basis that the appellant’s negligence claim fell squarely within the doctrine of advocate’s immunity.
[3] The appellant now appeals from the award of summary judgment on various grounds. For the following reasons, the primary judge’s decision was plainly correct having regard to binding High Court of Australia decisions dealing with the principle of advocate’s immunity from suit. None of the appellant’s grounds of appeal has a reasonable prospect of succeeding. The appeal must be dismissed.
Background
[4] The appellant was charged on indictment in the District Court of Western Australia with one count of sexually penetrating the complainant, a child under the age of 13 years, by penetrating her vagina with his finger. The offence was alleged to have been committed on or about 3 February 2012 in a suburb of Perth. The appellant pleaded ‘not guilty’ to that charge and engaged the respondent to represent him at trial.
[5] The complainant’s evidence at trial included two visually-recorded interviews conducted on 23 September 2013 and 8 May 2014. The account given in the interview of 23 September 2013 was that the offence occurred on 3 February 2012, on the evening after the then 11-year-old complainant returned from a camp. Because it was a very hot night, the complainant slept naked that night. She awoke to find the appellant lying beside her in the bed, penetrating the complainant’s vagina with his finger. The complainant made an entry in her diary the following morning, 4 February 2012, that the appellant ‘did something last night’. She later crossed the entry out because she did not want to remember it.
[6] Prior to trial, the appellant told the respondent of the existence of meteorological records which were inconsistent with the complainant’s account. The records showed that the maximum temperature in Perth on 3 February 2012 was 22 degrees Celsius, and that the minimum temperature that night was 11 degrees Celsius. The respondent did not obtain the meteorological records, or cause them to be obtained, prior to trial. The meteorological records were easily obtainable in an admissible form.
[7] The appellant’s trial before a judge and jury commenced on 3 March 2015. The respondent appeared as counsel for the appellant on the first day of trial. In her evidence on 3 March 2015, the complainant affirmed the account of the offence described above. She confirmed that, on the night in question, she wore nothing to bed because it was summer and there was a heatwave. The respondent cross-examined the complainant and did not challenge the complainant’s account of the weather on the night of the alleged offence.
[8] The appellant dispensed with the respondent’s services on the second day of trial. After unsuccessfully requesting an adjournment of the trial, the appellant represented himself for the balance of the trial. At the commencement of the proceedings on 4 March 2015, the trial judge advised the appellant that the weather records were inadmissible under the collateral evidence rule.
[9] At the conclusion of the trial on 10 March 2015, the appellant was convicted of the charged offence and remanded in custody pending sentencing. On 7 May 2015, the appellant was sentenced to 3 years’ immediate imprisonment with eligibility for parole.
[10] On 28 May 2015, the appellant instituted an appeal against his conviction to this court. The appellant was self-represented in that appeal, which resulted in some delays in preparing the matter for hearing. The appeal was heard on 14 June 2016. At the conclusion of the hearing on that day, the court allowed the appeal, quashed the conviction and ordered a retrial. The appellant was released from custody on 15 June 2016.
[11] This court subsequently published written reasons for making those orders.1
[12] The court found that, given the appellant’s instructions, it was incumbent on the respondent as counsel to take steps, or ensure that steps were taken, to obtain evidence of the meteorological records in admissible form.2 Further, the appellant’s instructions to the respondent provided a legitimate forensic basis for challenging the complainant’s evidence about the temperature in cross-examination. The respondent’s decision not to do so because it would not have assisted the defence case was an error of judgment on defence counsel’s part which was incapable of being justified as a reasonable forensic judgment. A cross-examination of the complainant based on the Bureau of Meteorology records almost certainly would have been very advantageous to the appellant.3 The court observed:4
Evidence capable of undermining the fact that the offence occurred on a hot or very hot night (and, in fact, the night could not reasonably have been characterised in this way) was capable of significantly undermining [the complainant’s] account of events. Moreover, if the alleged events did not occur on the evening of 3 February 2012, a further question arose as to the veracity of the diary entry said to have been made on 4 February 2012.
[13] This court also found that the trial judge’s comments discouraging the appellant, when self-represented, from obtaining meteorological records were erroneous. The respondent’s and the trial judge’s error as to the relevance of the meteorological records had the practical effect of depriving the appellant of the opportunity to run an important aspect of his defence. These unusual circumstances combined to constitute a material irregularity in the trial which could well have affected its outcome, and a miscarriage of justice.5
[14] At a retrial which concluded on 11 October 2017, the appellant was found not guilty by a jury and acquitted of the charged offence.
The primary proceedings
[15] By action instituted in the General Division of this court on 2 February 2021, the appellant claimed damages arising from his ‘wrongful conviction’ resulting from the respondent’s negligence.
[16] The appellant was self-represented in the primary proceedings. His pleadings were not confined to material facts and were in some respects prolix. In essence, the appellant claimed:
1. The respondent owed a common law duty to the appellant to exercise reasonable care, skill and diligence.6
2. The respondent breached that duty of care by failing to obtain meteorological evidence in admissible form, and to give due consideration to the significance of the evidence comprised in the prosecution case, prior to trial.7
3. Had the respondent obtained the meteorological evidence and considered its significance, she would have used it to challenge the complainant’s evidence resulting in the respondent being found not guilty at the first trial.8
4. The respondent’s negligence was a cause of the appellant spending 15 months in prison for an offence he did not commit.9
[17] The respondent admitted owing the appellant a duty of care but denied breaching that duty or that any breach of duty caused the appellant to suffer any loss or damage. The respondent also pleaded by way of defence that:10
Further and in the alternative, if (which is denied) the [respondent] breached a duty owed to the [appellant] as alleged or at all then:
59.1 any such breach is not an actionable breach of duty at the suit of the [appellant] by reason of the doctrine of advocates’ immunity, given that each act or omission to act that is alleged to constitute a breach of duty on the part of the defendant involves acts or omissions in preparation for, or were intimately connected with, work in court and had a functional connection with the exercise of judicial power, namely the recording of the conviction of the [appellant][.]
[18] Accordingly, the respondent invoked the principle of advocate’s immunity from suit contending it to be a complete defence to the appellant’s claim.
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[20] On 22 December 2023, the respondent applied for leave to bring an application for summary judgment and orders granting summary judgment and dismissing the action. The primary judge heard that application on 30 May 2024. In substance the basis of the summary judgment application was that the respondent had a good defence on the merits by reason of the principle of advocate’s immunity from suit.
The primary decision
[21] On 12 August 2024, the primary judge published written reasons for extending the time for the respondent to apply for summary judgment and awarding summary judgment to the respondent.12
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Advocate’s immunity
[30] The scope of the doctrine of advocate’s immunity in Australia is principally established by three decisions of the High Court of Australia in Giannarelli v Wraith,16D’Orta-Ekenaike v Victoria Legal Aid,17 and Attwells v Jackson Lalic Lawyers Pty Ltd.18
[31] These cases establish that, at common law, an advocate is immune from suit by (and consequently cannot be liable to) his or her client for negligence in the conduct of a case in court or in work out-of-court which leads to a decision affecting the conduct of the case in court.19 The immunity for work done out-of-court exists only where the particular work is so intimately connected with the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.20 This requirement of an intimate connection is concerned only with work by the advocate that bears upon the court’s determination of the case, and does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court.21 So understood there must be a functional connection between the work of the advocate and the determination of the case rather than a mere historical connection.22 The immunity does not extend to negligent advice which leads to a settlement of a claim in civil proceedings or negligent advice not to compromise the case.23
[32] As illustrated by the decisions in Giannarelli and D’Orta-Ekenaike, the immunity extends to negligent work by an advocate in criminal proceedings, even after the relevant conviction has been set aside.
[33] In Giannarelli, three plaintiffs had been convicted of perjury in giving evidence to a Royal Commission. Two plaintiffs received sentences of imprisonment and appealed against their convictions. Their convictions were ultimately quashed by the High Court on the ground that a provision of the relevant Royal Commission legislation rendered the evidence given by the plaintiffs at the Royal Commission inadmissible in the criminal proceedings.24 The other plaintiff did not appeal against his conviction. All plaintiffs then sought to sue their counsel for negligent failure to advise that the provision would render the evidence given in the Royal Commission inadmissible and thus defeat the Crown case, and to object on that ground to the tender of the evidence at trial. The High Court held that advocate’s immunity applied to defeat that civil claim.
[34] In D’Orta-Ekenaike, the plaintiff was charged with rape. He entered a plea of ‘guilty’ at a committal hearing, but on arraignment changed his plea to ‘not guilty’ and stood trial before a judge and jury. At trial, the Crown led evidence of the ‘guilty’ plea entered at the committal hearing. The plaintiff was convicted and sentenced to a term of imprisonment. On appeal, his conviction was quashed due to the inadequacy of the trial judge’s directions concerning the guilty plea at the committal hearing. A retrial was ordered. The judge at the retrial ruled evidence of the plaintiff’s guilty plea on committal to be inadmissible. The plaintiff was acquitted at the retrial. He subsequently sued his counsel and solicitor for negligently providing advice as to the advantages of pleading guilty at the committal hearing, and negligently failing to advise that a plea of guilty could be relied on by a prosecutor at a subsequent trial as an admission of guilt. Again, the High Court held that advocate’s immunity applied to defeat that claim.
[35] The appellant sought to distinguish Giannarelli and D’Orta-Ekenaike from the present case. We accept that in D’Orta-Ekenaike the alleged negligence was not the basis on which the claimant successfully overturned the conviction on appeal. There is a closer connection between the alleged negligence and the basis for the overturning of the conviction in Giannarelli. But even so Giannarelli is not a case where a miscarriage of justice was established based in part on the incompetence of counsel.
[36] While, for these reasons, there are factual dissimilarities between the present case and Giannarelli and D’Orta-Ekenaike, we are not satisfied that these distinguishing features are material for the application of the principle of advocate’s immunity. The principle of advocate’s immunity established in Giannarelli and D’Orta-Ekenaike is equally applicable to the present case.
Disposition
[37] The principle of advocate’s immunity from suit clearly applies to preclude success of the appellant’s claim in negligence against the respondent.
[38] The critical aspect of the appellant’s claim is his complaint that the respondent failed to challenge the complainant’s account of the weather on the date of the alleged offence and to adduce meteorological evidence which was inconsistent with that account at trial. The appellant contends that, if this had been done, he would have been acquitted at his first trial and would not have been incarcerated during the 15 months between his conviction and the quashing of that conviction on appeal. Accordingly, the core of the appellant’s complaint is what the appellant contends to be the negligent conduct of the trial by the respondent acting on his behalf. That is conduct to which the principle of advocate’s immunity attached with the result that the appellant’s claim is doomed to fail.
[39] The appellant does not avoid the application of the doctrine of advocate’s immunity by focusing on conduct outside of court which led to the trial being conducted in that manner. The only significance of the alleged failure to obtain meteorological evidence in admissible form and properly consider the relevance of that evidence before the trial commenced is on the conduct of the trial. Merely obtaining the evidence and considering its significance could not have avoided the appellant’s incarceration unless the evidence was actually used at trial. The only causal link between the alleged negligent acts and the damage which the appellant suffered is that, if the evidence had been obtained and its significance properly considered, it would have led to the evidence being used at his first trial in a manner that the appellant contends would have produced a different result. In this way, the alleged out-of-court negligence was intimately connected with the trial that affected the way the trial was conducted.
[40] None of the appellant’s grounds of appeal provide a proper basis for doubting this conclusion.
…
Ground 4: application of immunity to work not performed
[60] Ground 4 in part repeats the appellant’s contention that the doctrine of advocate’s immunity does not apply where a principal decision has been set aside or where the alleged negligence forms the basis of the decision to set aside the principal decision. To that extent the ground fails for the reasons explained above.
[61] An additional contention in ground 4 is that the observations of Mason CJ in Giannarelli apply to work done out-of-court and not to work that has not been performed. That contention is inconsistent with the approach taken in Giannarelli itself, where one aspect of the alleged negligence was the failure to advise the plaintiffs that the relevant provision would render evidence inadmissible and thus defeat the Crown case.38 It is also inconsistent with the approach taken in D’Orta-Ekenaike, where the negligence alleged included failing to advise that a plea of guilty could be relied on by a prosecutor at a subsequent trial as an admission of guilt.
[62] Ground 4 does not have a reasonable prospect of succeeding.
Conclusion
[63] It is established that summary judgment should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.39 For the reasons explained above, this was a case where the pleaded defence of advocate’s immunity means that the appellant’s action against the respondent is doomed to fail. The primary judge was correct to award summary judgment on that basis. Nothing in the appellant’s grounds of appeal or submissions to this court provides any proper basis for doubting the correctness of the primary judge’s decision. The appeal should therefore be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. As the appeal should be dismissed there is no utility in granting an extension of time to appeal and the application for such an extension should also be dismissed.
Spencer v The Commonwealth[2010] HCA 28; (2010) 241 CLR 118 [54] –[55].
In Prothonotary of Supreme Court of New South Wales v Yousif [2025] NSWCA 77 (23 April 2025), the NSW Court of Appeal addressed, and applied, the principles in relation to the discharge of onus pertaining to a lawyer – in this instance a solicitor – being a fit and proper person to remain on the Roll of Australian Lawyers. In exercising jurisdiction, the court found such jurisdiction existed in ss 23 and 264 of the Legal Profession Uniform Law (NSW). The analogue of s 264 is to be found in s 13 of the Legal Profession Act 2007 (Qld) which provides:
13 Inherent jurisdiction of Supreme Court
(1) The inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners is not affected by anything in this Act.
(2) The inherent jurisdiction and power—
(a) extends to an interstate legal practitioner as mentioned in section 78; and
(b) may be exercised by making—
any order the committee may make under this Act; or
any order or direction the tribunal may make under this Act or the QCAT Act.
The court acceded to the application by the applicant to remove the respondent’s name from the Roll of Australian Lawyers:
[1] This is an application by the Prothonotary for a declaration that Ms Alina Yousif is not a fit and proper person to remain on the Roll of Australian Lawyers and an order that her name be removed from that roll. The application follows Ms Yousif’s conviction on 2 March 2020 of the following offences:
(1) One charge of participating in a criminal group in contravention of s 93T(1) of the Crimes Act 1900 (NSW) [Count 1];
(2) One charge of using a false document with the intention of inducing a person to accept it as genuine and then to influence that person to exercise a public duty in contravention of s 254(b)(iii) of the Crimes Act 1900 (NSW) [Count 2];
(3) One charge of knowingly taking part in the supply of a prohibited drug, namely 55.5 grams of methylamphetamine in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [Count 3].
Background
[2] Ms Yousif was born in Iraq in 1991. She came to Australia with her family in 1995 as a refugee. Growing up, she had a difficult family life with an alcoholic father. After completing Year 12, she studied law and economics at the University of New South Wales. She graduated in 2015 and was admitted as a solicitor in February 2016. She then worked for approximately eight months with Galloways Solicitors, a firm in Potts Point, Sydney, that specialised in criminal law. Prior to her admission, she had worked there as a law clerk.
[3] While working for Galloways, Ms Yousif came into contact with Mr Clinton Parkinson, to whom she was introduced some time between February and October 2016, while she was a still a law clerk. Mr Parkinson, who had connections with the Bandidos Motorcycle Club, had been in custody for several years after being convicted of supplying the prohibited drug methylamphetamine in a commercial quantity and of two firearm related offences: see R v Parkinson[2010] NSWCCA 89. He had approached the firm to represent him on his application for parole, for which he became eligible on 8 June 2015. He was released on parole on 12 July 2016.
[4] After leaving Galloways, Ms Yousif moved to Griffith to work for the Aboriginal Legal Service (ALS) as a junior solicitor. She worked there for approximately one year until November 2017. Initially, she worked with a more senior ALS solicitor, but in her affidavit evidence she says that from early 2017 she was the only solicitor in the Griffith office. During that time, Ms Yousif says that she worked “very long and hard” hours, getting up at 5.00am on most days and not leaving the office until 11.00pm. She says that “[o]n mention days, it was common for me to mention up to 40 matters a day” and that on hearing days it was common for her to have four or five hearings scheduled for which she would have to prepare, even if they were adjourned. She said that she had no family, friends or support in Griffith.
[5] Before this Court Ms Yousif gave somewhat different evidence concerning her workload at ALS. She said this:
I was the only solicitor there. I was dealing with the only Griffith matters. I was juggling the whole mention list. I was dealing with 160 mentions a day, about five hearings on hearing days. In terms of Jonathan, he was in Griffith, but he was still travelling to Wagga. And the Griffith ALS solicitors don’t deal with Wagga matters. He was still finishing off with his Wagga matters. So to me, yes, I, I felt like I was the only solicitor there and I voiced that concern with Chris Day several — on several occasions because it was, was too much work.
[6] The evidence given by Ms Yousif concerning her time at ALS appears to be exaggerated. According to a letter dated 18 September 2024 from Ms Nadine Miles, Principal Legal Officer of the ALS, that was admitted into evidence without objection, the practice leader in the Griffith office when Ms Yousif took up her position was Ms Zoe Alderton, who left in late April 2017 (Ms Yousif says that Ms Alderton left before then on leave). Ms Alderton was replaced by Mr Jonathan Wilcox who commenced on 5 June 2017 after transferring from the Wagga Wagga office. At about the same time, another solicitor joined the office in Griffith. Ms Yousif said in cross-examination in relation to this evidence that Mr Wilcox continued to work on files in the Wagga Wagga office and consequently was not able to assist her when he arrived and that she has no recollection of another solicitor working in the Griffith office, although she does not deny the information contained in Ms Miles’ letter. It is not plausible that Ms Yousif has no recollection of another solicitor working in the Griffith office for a period of approximately six months while she was there. As will become apparent, this is one of several instances where Ms Yousif gave evidence before this Court which cannot be accepted.
[7] Shortly after moving to Griffith, Ms Yousif started a relationship with Mr Parkinson, who had recently been released on parole and had moved to a place in Kooba Street in North Albury (the Kooba Street Property), which is approximately a three hour drive from Griffith. How that came about is not apparent from the evidence, although it is reasonable to infer that Mr Parkinson and Ms Yousif remained in contact after they were first introduced in connection with Mr Parkinson’s application to be released on parole. The relationship continued until 6 December 2017, when both were arrested in circumstances described below. Shortly before her arrest, Ms Yousif had left the ALS and started working for Legal Aid in Wagga Wagga.
[8] At first, Ms Yousif’s relationship with Mr Parkinson was harmonious. He came to stay with her in Griffith some days during the week and she would visit him in Albury over the weekend. For the majority of the time they were together, Ms Yousif paid the rent and bills for the Kooba Street Property. However, Ms Yousif says that after the first couple of months “[Mr Parkinson’s] true character started to appear” and that he became “mentally and physically abusive, controlling and manipulating”. She gives evidence of one occasion when he punched her repeatedly in the car while driving back to Albury from Victoria, with the result that it was necessary for her to go to Albury Hospital to have her injuries (two black eyes and a serious facial cut) attended to and subsequently to take a week off work. She gives inconsistent evidence about whether she drove herself to the hospital or whether Mr Parkinson took her. The inconsistency took on some significance because Ms Yousif explained that she did not tell the doctor she saw that she had been a victim of domestic violence because Mr Parkinson was present in the hospital room when the doctor asked her how she had sustained her injuries.
[9] On another occasion in late 2017, Ms Yousif says that Mr Parkinson withdrew most of Ms Yousif’s salary from her bank account. When she questioned him, he pushed her causing her to fall and hit the side of a bedside table leaving a cut to the back of her head.
[10] Several months after the relationship commenced, Mr Parkinson decided to join the Bandidos Motorcycle Club. Subsequently, Ms Yousif started receiving periodic visits from Bandidos members checking up on her. Ms Yousif says that from that time she was “constantly being followed and watched in Griffith during the week and on weekends in Albury”, that she was “under Clint’s control” and that he was “a very overpowering and controlling person”. Ms Yousif says that she was too afraid to leave Mr Parkinson and that “[t]he reasons why the offences were committed was because of Clint’s control over me at the time and my fear and intimidation of him”.
[11] By August 2017, NSW Police had commenced an investigation into Mr Parkinson and for the purposes of that investigation lawfully intercepted telephone calls and text messages for his mobile telephone services and installed surveillance devices in the Kooba Street Property. Much of the evidence against Ms Yousif at trial was obtained from those sources.
…
Verdict and subsequent events
[36] Ms Yousif was found guilty on 2 March 2020. At her sentencing hearing, she tendered a report dated 10 June 2020 from Mr Sam Borenstein, a clinical psychologist. Ms Yousif had been referred to Mr Borenstein on 30 January 2018 by her general practitioner under a Mental Health Care Plan for symptoms of depression. Mr Borenstein said that, at that time, she presented “with severe symptoms of depressed mood and uncertainties with regards to her future”. She returned for treatment on 21 occasions between 6 February 2018 and 5 June 2020 (Mr Borenstein records that she had a further appointment scheduled for 12 June 2020). Mr Borenstein expressed the opinion that Ms Yousif had severe symptoms of depressed mood, extremely severe symptoms of anxiety and severe symptoms of stress as well as severe symptoms of post-traumatic stress disorder (PTSD) which became “severe and chronic [as a result] of her being regularly abused, physically, psychologically and emotionally in the relationship with Clinton Parkinson”. According to Mr Borenstein, Ms Yousif’s judgment and ability to make sound decisions was “severely compromised” because of her PTSD, her offending behaviour was “completely uncharacteristic” and was the result of her suffering from chronic and severe PTSD.
[37] The sentencing judge imposed an aggregate term of three years imprisonment commencing on 25 June 2020, to be served by way of an intensive correction order with the following conditions:
(1) Not to commit any offence.
(2) To be supervised by Community Corrections.
(3) To undergo programs and/or treatment.
(4) Not to consume illicit drugs.
(5) To perform 400 hours of community service work.
(6) To telephone the Fairfield Community Corrections Office within seven days.
[38] More than a year later, on 30 July 2021, Ms Yousif sought leave to appeal her conviction to the Court of Criminal Appeal identifying nine grounds of appeal. She subsequently discontinued the appeal on 1 September 2022, following receipt of the Crown’s submissions. She said in evidence before this Court that she did so against the advice “from senior counsel, junior counsel and my solicitor”, and that that was “the first time since being charged that I decided to finally accept full responsibility”.
[39] Ms Yousif stopped seeing Mr Borenstein in May 2021. However, she saw him again on 11 June 2024 for the purpose of obtaining a report from him to be used in these proceedings. Ms Yousif said when giving oral evidence in chief that she intended to resume her therapy with him. She had resisted doing so until recently because she thought that it might affect the Court’s attitude to the current application. However, she said that she accepted that she still needed help, and had come to learn recently that far from damaging her prospects on the current application, her willingness to continue her therapy with him was likely to assist them. In relation to the need for further treatment, she gave this evidence:
Q. Do you agree that you have regularly failed to meet the timetable set by this Court in relation to these proceedings?
A. Yes.
Q. Why?
A. I, I believe these are one of the things I need to discuss with Sam. When I’m under stress or under a lot of pressure, I, I sort of just walk away from it. Just put it to the back of my head. I don’t intentionally mean to do that, it’s not my intention to do that, it’s just something that’s just my coping mechanism at the present state.
Q. Is it fair to say that you go into a state of denial about what you have to do?
A. Yes.
Q. Is it fair to say that you, to use a colloquial expression, put your head in the sand?
A. Yes.
[40] Mr Borenstein expressed this opinion in his most recent report (dated 12 June 2024):
I have treated Ms Yousif over the years, and when assessed on 11 June 2024, I state with confidence she has developed significant insight into her past behaviour, and her struggles with symptoms of PTSD, anxiety, depression and panic.
Ms Yousif has greater awareness of the nature and cause of those symptoms, and is well placed and able to manage same, and importantly, she has heightened awareness when she might be placed in situations where her personal and psychological integrity could be threatened.
[41] On 11 February 2023, Ms Yousif completed her 400 hours of community service work. On 24 June 2023, her sentence expired.
Relevant legal principles
[42] The inherent power of this Court to order the removal of the name of a person from the Supreme Court roll is preserved by the Legal Profession Uniform Law (NSW) (the Uniform Law): ss 23(1), 264.
[43] The question to be determined in an application for removal from the roll is whether the practitioner is a fit and proper person to remain as a member of the profession: Re Davis (1947) 75 CLR 409 at 416; [1947] HCA 53 (Re Davis); Council of the Law Society of New South Wales v Green[2022] NSWCA 257 (Green) at [58]. The question must be determined at the time of the hearing: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [21]; Prothonotary of the Supreme Court of New South Wales v Livanes[2012] NSWCA 325 at [24]. It requires the Court to consider whether the practitioner is likely to be unfit for the indefinite future: Council of the Law Society of New South Wales v Zhukovska(2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]. “Indefinite” in this context is not the same as “permanent”. Rather, the requirement is that it not be apparent whether, and if so when, the practitioner might be suitable for reinstatement to the roll: Stanoevski v The Council of the Law Society of New South Wales[2008] NSWCA 93 at [52] –[53]; Prothonotary of the Supreme Court of New South Wales v Hansen[2023] NSWCA 189 at [17] –[18]; Prothonotary of the Supreme Court of NSW v ‘A’ (a pseudonym)[2023] NSWCA 258 at [35] (where the requirement was expressed in terms of whether the unfitness was likely to continue for the “foreseeable future”). The jurisdiction is protective, not punitive. Its purpose is protection of the public and its confidence in the legal profession: Green at [58].
[44] Consistently with that purpose, where the relevant conduct involves serious dishonesty, it will normally be appropriate to order the legal practitioner’s name to be removed from the roll, since honesty goes to the heart of the professional responsibilities of a legal practitioner. As Spigelman CJ explained in New South Wales Bar Association v Cummins(2001) 52 NSWLR 279; [2001] NSWCA 284 (Mason P and Handley JA agreeing), a case involving a barrister who failed to lodge tax returns over many years:
[19] Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
[20] 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.
[45] The applicant must prove in accordance with the civil standard that the practitioner is likely to be unfit to practise for the indefinite future: de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2)[2024] NSWCA 299 at [283] (Leeming JA dissenting in the result but not on the statement of law). However, where there is demonstrated misconduct and a claim of rehabilitation, the evidentiary onus shifts to the practitioner: Stanoevski v The Council of the Law Society of New South Wales[2008] NSWCA 93 at [60].
Ms Yousif’s submissions
[46] Ms Yousif accepts that her criminal conduct in November 2017 meant that she was not a fit and proper person to remain on the roll at that time. However, she advanced three broad reasons for why her name should not be removed from the roll now. First, although she accepted the seriousness of the offences, she pointed to a number of matters that reduced their gravity. They occurred over a short period at a time when she was a young and relatively inexperienced solicitor practising in difficult circumstances. The offences did not occur in the conduct of her practice as a solicitor and they were not committed for personal gain. Second, there was strong evidence of extenuating circumstances because she was in an abusive relationship at the time and that abusive relationship was the primary reason she committed the offences. Third, the offences occurred over seven years ago. Since that time, Ms Yousif has taken major steps to rehabilitate herself. With the assistance of counselling, she has developed insight into why she engaged in the criminal conduct and developed strategies to ensure that she does not put herself in a similar position again. She has obtained employment where she has earned the respect and confidence of her employer. She has joined social groups and through those makes a significant contribution to the community. She has developed sufficient insight into her behaviour to realise that she continues to need some help and for that reason proposes to resume seeing Mr Borenstein as soon as possible.
Consideration
[47] We cannot accept those submissions.
[48] The offences cannot be looked at in isolation. They arose in circumstances where Ms Yousif chose to establish a close personal relationship with a known criminal. The two dishonesty offences involved a degree of planning. They were serious offences for a solicitor to commit because they involved a deliberate attempt to mislead a public official.
[49] We accept that Ms Yousif was in an abusive relationship with Mr Parkinson and in the context of that relationship Ms Yousif would want to appease Mr Parkinson in order to limit the amount of abuse she suffered. However, we cannot accept that that relationship was the primary reason she committed the offences. It seems plain from the language she used in the recorded conversations set out above and what actually happened that she was a willing participant in the events that constituted the offences. It is apparent from the conversation quoted in para [13] above that Ms Yousif was involved in planning the dishonesty offence. It was not a case where the plan was developed by Mr Parkinson and Mr Kearney and she was simply told what to do. When the plan began to go awry at the offices of Service NSW and Mr Kearney left the counter, she stayed and sought to persuade the employee to accept what she knew to be a false certificate.
[50] Similarly, in relation to the drug offence, it was Ms Yousif who offered to contribute money to the price of the drugs. Mr Parkinson did not ask for the money. Indeed, he declined her offer.
[51] Little weight can be put on the opinion expressed by Mr Borenstein concerning Ms Yousif’s PTSD and its relevance to the offences she committed, since the opinion is not directed at the specific conduct in question and is based entirely on Ms Yousif’s account of the events.
[52] Ms Yousif pleaded not guilty to the charges and actively defended them. In doing so, she gave evidence that she knew was false. Although because of the inconsistent evidence Ms Yousif gave before this Court, it is not possible to say with any degree of certainty what evidence Ms Yousif now accepts was false and what evidence she does not, it is clear that she gave false evidence when she said that she did not know that the letter purporting to be from the Indian consulate was a forgery and on occasions before this Court she accepted that that was the position. Although Ms Yousif did not accept it, it also seems clear that she must have known that the evidence she gave about how the forged letter came to be damaged was false. That is evident from the recorded conversation quoted in para [13] above. It is plain from that transcript that Mr Parkinson, Mr Kearney and Ms Yousif were not discussing what had actually happened to the letter, which is what Ms Yousif said at her trial, but were discussing what story should be given at the time that the letter was presented to Service NSW. It is not plausible that someone who participated in the concoction of a story about how the letter came to be damaged believed the story when giving evidence of it. Similarly, having regard to the conversation recorded at para [17] above, it is not plausible that Ms Yousif did not know that the money she was counting, and that she offered to supplement, was to be used to buy illicit drugs.
[53] Perhaps of even more significance in the context of the current application, we cannot accept that some of the evidence Ms Yousif gave before this Court was truthful. This was understood to be an issue during and following the first day of the hearing; it was expressly addressed in submissions on the second day. There is no constraint on the Court making its own findings as to her credit and relying upon those findings in disposing of the application before it: cf Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36.
[54] There is a question whether Ms Yousif gave truthful evidence before this Court about whether, at the time she attended the Service NSW office with Mr Kearney, she knew that she was not a JP so that when she told the Service NSW employee that she was she was lying. Ms Yousif’s evidence on this issue is at best confused if not contradictory. Moreover, it seems unlikely that a solicitor would not know the difference between a solicitor and a JP and that a person was not a JP by virtue of being a solicitor. However, it is not necessary to reach a concluded view on this issue, since there are two important respects in which it is clear that the evidence Ms Yousif gave before us was false.
[55] First, we cannot accept that Ms Yousif honestly believed the account she gave of how the forged Indian consulate letter came to be damaged. The account she gave before this Court was different from the account she gave at her trial. The account itself was implausible. It was implausible that Ms Yousif had only remembered the true facts when she gave evidence before this Court. And the account was implausible given her recorded discussion with Mr Parkinson and Mr Kearney.
[56] Similarly, in relation to count 3, we cannot accept Ms Yousif’s evidence before this Court that she did not know that the money she counted (and offered to supplement) was to be used for the purchase of a quantity of methylamphetamine. The evidence she gave on this subject was particularly evasive because, on several occasions, what she denied was knowing that the money was going to be used “for the supply of 55 grams of methamphetamines”. The introduction of a precise quantity in the answer to the question created an ambiguity because it became unclear whether Ms Yousif was denying that she knew the precise quantity of drugs to be purchased or whether she was denying that she knew that the money was being used to purchase any drugs. Ms Yousif came across as an intelligent person. The introduction of the ambiguity appeared to be deliberate. The only plausible reason for introducing the ambiguity was to avoid giving an honest answer to the question. Indeed, the ambiguity itself was implausible as there was no reason to doubt the recorded reference to “three ounces” as the amount being supplied.
[57] Nor do we think Ms Yousif has developed an adequate insight into her offending so that now she is suitable to remain on the roll. At the very least the answers she gave in cross-examination before this Court referred to above demonstrate that Ms Yousif has not fully accepted the respects in which her conduct involved the commission of serious criminal offences, including criminal offences going to her honesty. Although she now says that she accepts that she needs further psychological help, she refrained from obtaining that help because she thought it would damage her case before this Court. She has indicated that she now proposes to seek that help because she understands that it will assist her case. This and the other evidence we have referred to indicate that Ms Yousif remains a person who is willing to say and to do whatever will achieve her immediate goals without being overly concerned about what the right thing to do is. It demonstrates that she continues to be unfit to remain on the roll. It is not possible to say with any confidence if and when the position will change.
Orders
[58] Accordingly, the orders of the Court are:
(1) Declare that Alina Yousif is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (the Roll).
(2) Order that the name Alina Yousif be removed from the Roll.
(3) Order that Alina Yousif pay the applicant’s costs of, and incidental to, these proceedings.
Members who practice across Australian jurisdictions may be interested to read the Guidance Note issued by the Professional Standards Council on mutual recognition of multi-jurisdiction professional standard schemes.
A professional standard scheme operates to impose a cap on the liability of a professional embraced by a scheme. The Bar Association of Queensland harbours such a scheme – and has done for about 15 years. Such scheme is expressed to extend to the practice of a barrister interstate.
In Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 (28 March 2025), the New South Wales Court of Appeal dealt with a civil case involving a District Court trial over eight days between 19 June 2023 and 27 August 2023, a reserving of the decision, the making of final orders on 9 May 2024 and the delivery of written reasons on 13 August 2024. It was held that the delay, while excessive and unsatisfactory, did not attract the need for a re-trial, but rather only a rectification of any error in the reasons. The court wrote:
Delay in delivering reasons
Palmer v Clarke
[36] The recent starting point for a consideration of the question of the consequences of a delay in delivering reasons for judgment is the decision of this Court in Palmer v Clarke(1989) 19 NSWLR 158 (Palmer). In that case, following a nine day hearing in the District Court that concluded on 26 June 1985, the trial judge reserved his decision. At that time, he gave the parties leave to file further written submissions that were not received until 19 December 1985. There was then a delay of almost two years until the matter was listed for judgment on 3 December 1987. On that day, his Honour announced his decision and indicated that reasons would be available the following day. On the following day, his Honour commenced giving oral reasons, but then stopped to ask for submissions on interest. It is unclear precisely what happened then. The transcript of the reasons gives the appearance that it was a continuous record, but in fact it was common ground that his Honour did not complete delivering oral reasons until sometime in March 1988, when he delivered reasons occupying a further 20 pages of transcript. On appeal, this Court concluded that in the circumstances it was necessary to set aside the judgment and order a new trial.
[37] In reaching that conclusion, Kirby P (with whom Samuels JA agreed) commenced by pointing out that the tradition at common law was for a continuous oral trial conducted before a jury. As his Honour explained (at 164):
This tradition of the continuous oral trial affected the common law and practice of the delivery of reasons for judgment. Until very recently such reasons, even of appellate courts, were in England read out in open court so that the litigants and citizens could hear them. In England, this practice has lately been modified to allow the delivery of written judgments. That change of procedure was adopted many decades earlier in the superior courts of Australia.
His Honour might have added that the practice is still followed in judge alone criminal trials in this State and when sentences are imposed.
[38] As his Honour pointed out, that practice, in so far as it applied to the District Court, had been modified to some extent by Pt 31, r 9 of the District Court Rules 1973 (NSW), which provided:
Where the Court gives any judgment or makes any order and the opinion of the Court is reduced to writing, it shall be sufficient to state orally the opinion without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to a specified officer of the Court or to the Chief Court Reporter for delivery to the parties.
[39] An equivalent provision was contained in the Supreme Court Rules 1970 (NSW): see Pt 40, r 2. A similar provision is now found in Uniform Civil Procedure Rules 1995 (NSW) (UCPR) r 36.2, which provides:
(1) If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.
(2) After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court’s reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties.
[40] According to Kirby P, in the case of inferior courts of record (such as the District Court), absent a provision such as Pt 31, r 9, strict compliance with the requirements of the common law was necessary. His Honour referred to several decisions supporting that conclusion including Melville v Phillips (1899) 9 QLJ 114 (Melville), R v Casey; Ex parte Lodge (1887) 13 VLR 37 (R v Casey) and Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 91 WN (NSW) 34 [1970] 1 NSWR 617 (Ex parte Currie).
[41] In Melville, the Full Court of the Supreme Court of Queensland held that the requirement to deliver judgment in open court could only be dispensed with by statutory authority. Consequently, r 156 of the District Court Rules which permitted a judgment to be delivered by a registrar was ultra vires. It followed that a judgment delivered in accordance with the rule was a nullity, with the result that the Full Court had no jurisdiction to entertain an appeal from it. In a passage quoted by Kirby P (at 165), Griffith CJ explained the decision in these terms (at 116):
But pronouncing judgment upon a trial is a judicial proceeding — perhaps the most important part of the judicial proceeding — and I confess I do not see how a judge can pronounce judgment except in open court, unless under the authority of some statute. A statute was passed a year or two ago empowering absent members of the Full Court, in any case in which judgment is reserved, to send their judgment in writing, to be read by a brother judge in open court. In the absence of any statutory authority of that kind, I can see no authority for a judge to give judgment otherwise than in open court; and so it appears to have been decided in Victoria. If that is the correct view, judgment has not been pronounced in this case, and as the Full Court does not sit as an advisory court, to give opinions in cases in which judgments have not been pronounced, this appeal is premature, and we have no jurisdiction to entertain it.
[42] Similarly, in R v Casey, Higinbotham CJ, delivering the judgment of the Court, said (at 40):
We think that the decision or determination of the learned judge in this case ought to have been pronounced in court, and that as it was not so pronounced it was not a judgment at all, and the entry in the county court register book and all the proceedings founded upon it are void. There is nothing however to prevent the learned judge from delivering his judgment on a future day.
[43] In Ex parte Currie, one of three licensing court magistrates who sat on a hearing was ill and did not sit at the time judgment was delivered. He later died. This Court held that under the relevant legislation, the Full Bench of the Licensing Court could only be constituted by three members. Consequently, at the time it delivered judgment it was not validly constituted, with the result that its judgment was void. In reaching that conclusion, the Court (Herron CJ, Wallace P and Manning JA) drew a distinction between superior and inferior courts (at 447, 38, 620):
Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court … Such a tribunal is not invested with those powers which are commonly exercised by courts of supreme judicature such as the Supreme Court of this State or higher tribunals. Such powers have their origin in tradition and their procedures are often dictated by convention.
Commenting on this passage, Kirby P said (at 167):
These words are equally applicable to the District Court, which is another court of limited statutory jurisdiction and not a superior court of record.
[44] Against that background, Kirby P concluded that the announcement of the primary judge in that case on 3 December 1987 was not the pronouncement of a judgment. It was merely a foreshadowing of what the trial judge intended to do later: at 168. What happened the following day was the pronouncement of judgment but plainly did not satisfy the judicial duty to give reasons: at 170. The subsequent oral reasons given in March 1988 did satisfy the requirements to give reasons, but they did not satisfy “the common law duty which rests upon judges to deliver their judgment and the reasons and opinions which support them in open court and at, or virtually immediately after, the time of the pronouncement of judgment”. So much in fact seems to have been accepted by the parties. Instead, the respondent argued that the delay in delivering reasons could be excused as an irregularity under s 159(1) of the District Court Rules 1973 (NSW), which relevantly provided that a failure to comply with the Act or rules “shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings …”. Kirby P rejected that argument for two principal reasons. First, the pronouncement of judgment was “a most important step in the judicial process” that could only be excused by express legislation. Second, s 159(1) was not apt to cure the problem. The appellant had not asserted that the judgment was null and void. They simply asserted that the failure to provide reasons was an appealable error: at 172.
[45] Priestley JA reached the same conclusion but on the basis that the primary judge, having delivered his judgment and some reasons on 4 December 1987, was functus officio. The reasons delivered on 4 December 1987 were so inadequate that the primary judge had failed in his judicial duty, with the result that a retrial was necessary: at 174. Kirby P thought that that point was arguable but in view of the conclusions he had reached, considered that it was unnecessary to decide it: at 172.
Mulvena v Government Insurance Office of New South Wales
[46] Palmer was considered by this Court in Mulvena v Government Insurance Office of New South Wales (Court of Appeal (NSW), 16 June 1992, unrep) (Mulvena). In that case, the primary judge (Viney QC DCJ) at the conclusion of a trial on 23 November 1990 announced that he had “formed the view that the plaintiff had not discharged his onus in this case and I propose to … enter a verdict for the defendant”. That decision was recorded on the District Court file at the time. On 12 December 1990, the primary judge then published a document entitled “Reasons for Judgment”. It was unclear whether the matter had been listed for judgment at that time, although it was common ground that the outcome of the case did not turn on whether the document was delivered in open court or not.
[47] Mahoney JA, with whom Clarke JA although writing separately substantially agreed, took the view that the appeal on the merits should be dismissed but that there had been a procedural error for two reasons. One was that the reasons were not given at the time the order was made. The other was that the reasons that were given, which were reduced to writing, were not given in accordance with Pt 31, r 9 of the District Court Rules. That error was an error of law but not a jurisdictional one. It could be corrected by setting aside the verdict and judgment and returning the matter to the trial judge “with a direction that he should, upon the evidence before him, make such order by way of verdict or judgment as is appropriate and should, when doing so, deliver his reasons for so doing”.
[48]In reaching that conclusion, Mahoney JA drew a distinction between “[a] court of unlimited jurisdiction”, such as the Supreme Court, which “may make orders taking effect instanter and may give reasons for the order subsequently” and courts of limited jurisdiction. Palmer was concerned with courts of the latter type. Relevantly, it decided that a District Court judge was obliged by the common law and the District Court Rules to give reasons at the time of pronouncing judgment. Part 31, r 9 was of no assistance, since it was primarily concerned with how written reasons for judgment were to be given, not when they were to be given. However, in his Honour’s view, the decision in Palmer should not be understood as requiring a retrial on each occasion of a procedural error. Rather “the remedy given should … be confined to what is necessary to rectify that error. It is only if the effect of that error cannot be rectified without a new trial of all issues that a new trial should be ordered”. In the present case, the error could be rectified by the order proposed.
[49] Sheller JA dissented. In his opinion, Palmer could not be distinguished and therefore a new trial was necessary.
Irlam v Byrnes
[50] The issue was considered again by this Court in Irlam v Byrnes(2022) 108 NSWLR 285; [2022] NSWCA 81 (Irlam). Like Palmer and Mulvena, that case concerned an appeal from the District Court. The hearing at first instance took place over five days between 18 and 22 June 2018. The primary judge handed down his judgment on 18 December 2020. After giving brief reasons for his conclusions, his Honour said:
As a consequence of my findings, for reasons that are lengthy and that I will publish by which I do not intend presently to read but which will be sent to you on Monday [21 December], the orders that I make in these proceedings are as follows …
In fact, on 24 December, his Honour’s Associate forwarded an email to the parties attaching a judgment in standard form of 64 pages.
[51] Cavanagh J (with whom Simpson AJA and N Adams J agreed in substance) concluded that the issue was governed by UCPR r 36.2. That provision did not require reasons to be delivered simultaneously with the pronouncement of the orders. Some delay was permissible. What that delay was depended on the circumstances of the case: see [2] (Simpson AJA); [21] (N Adams J); [118]ff (Cavanagh J).
[52] In reaching that conclusion, Cavanagh J distinguished Palmer on the basis that that was decided by reference to Pt 31, r 9 of the District Court Act 1973, which was worded slightly differently from UCPR r 36.2 (the Court did not refer to Mulvena). Moreover, it was necessary to interpret UCPR r 36.2 in light of s 56(1) of the Civil Procedure Act 2005 (NSW) (the CPA), which requires the rules to be construed having regard to the overriding purpose of the CPA, which was to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The delay was short. It occurred at the end of term, when it was unlikely that the unsuccessful party would want to take immediate action based on the results. In addition, it was apparent from what the primary judge said on 18 December that the reasons had largely been prepared and the primary judge just needed a short time to finalise them.
Consideration
[53] The decision in Palmer is not directly relevant to the facts in this case. In Palmer, the issue was not whether the District Court could deliver written reasons for judgment some time after pronouncing judgment. Rather, the question was whether the court, having delivered some reasons at the time of announcing its decision, could several months later seek to supplement those reasons by delivering additional oral reasons. It is hardly surprising that the Court concluded that it could not. Although it was suggested both in Palmer and Mulvena that that conclusion depended on the particular status of the District Court, that does not appear to have been a critical factor. Ultimately, Kirby P’s conclusions rested on what was said to be the common law requirement to deliver reasons “at, or virtually immediately after, the time of the pronouncement of judgment”. Absent legislation, it is unclear why that requirement would not apply equally to the Supreme Court.
[54] On the facts in Palmer, there also appears to be considerable force in the proposition accepted by Priestley JA that, having delivered its decision and some reasons for it, the Court was functus officio. That also explains why it was appropriate in that case to order a retrial. If the Court was functus officio, the additional reasons were not delivered in connection with the proceedings. Consequently, they were irrelevant and had to be ignored. The reasons that were delivered were plainly inadequate. Accordingly, there was no alternative other than to order a retrial. The position, of course would be different where, as in this case, the judge specifically reserved the giving of reasons to a later date.
[55] We have some difficulty in accepting, now, the proposition that appears to have been accepted by Kirby P in Palmer that at common law the duty of a court is to deliver oral reasons at or immediately after the time it pronounces judgment, at least in civil cases. As Kirby P pointed out, at one time that duty may have existed as part of the oral tradition of the common law. But that oral tradition has been modified substantially at least in civil cases in the Supreme Court, District Court and Local Court. In most civil cases in those courts evidence in chief is given either by affidavit or witness statements. Judgment is frequently reserved. Normally, although the decision is announced in open court, the reasons for the decision are reduced to writing and are provided to the parties at the time judgment is pronounced. However, particularly in urgent matters it is not uncommon for the court to announce its decision and state that it will provide its reasons later. Often that occurs where a plaintiff seeks interlocutory relief. But it may also happen where urgent final relief is sought. In interlocutory matters and in ancillary matters, such as judgments in relation to questions of costs, it is not unusual for the matter to be dealt with on the papers. It would be surprising if the common law in relation to what was required of a judge when giving reasons had not adapted to these changes in practice.
[56] There are suggestions in both Palmer and Mulvena that the ability of a court to deliver reasons after delivering its decision rests on the relevant rules of court (now UCPR r 36.2) or can be explained as a power vested in superior courts of record. However, neither of those explanations is entirely satisfactory.
[57] Certainly, some decisions can be explained as applications of UCPR r 36.2 (or its predecessors). The decision in Irlam is an example. However, UCPR r 36.2 cannot provide a complete explanation of current practice. That rule only applies where the court gives judgment “and its reasons for judgment … are reduced to writing”. On its face, the rule contemplates that the reasons are reduced to writing at the time judgment is given. That was the interpretation given to the rule by Campbell J in King Investment Solutions Pty Ltd v Hussain(2005) 64 NSWLR 441; [2005] NSWSC 1076 at [151] and this Court in Ejueyitsi v Western Sydney University[2023] NSWCA 126 at [47]–[50] (Griffiths AJA; Mitchelmore JA and Simpson AJA agreeing). On an ordinary reading of the rule, that interpretation must be correct. The rule applies not only to judgments but to “any order or decision”, an expression that plainly includes interlocutory decisions given in urgent cases. But in many of those, the reasons for the decision will not have been reduced to writing at the time the decision is announced and the relevant orders entered.
[58] It is also unclear why special rules apply to superior courts of record in this respect. An important feature of a superior court of record is that any order it makes even if it is outside jurisdiction is valid until it is set aside: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32], [38] and [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). But in the present context it was accepted both in Palmer and Mulvena that the failure to give reasons at the time judgment was pronounced, or at a time that was otherwise permitted, was not a jurisdictional error. It was an error of law. It has been held that a failure of an inferior court to give adequate reasons is not generally, of itself, jurisdictional error: Ming v Director of Public Prosecutions (NSW)(2022) 109 NSWLR 604; [2022] NSWCA 209 (Ming) at [25]–[46] (Kirk JA, White and Mitchelmore JJA). Not every judicial decision requires the giving of reasons: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J with Heydon J agreeing at [147]). However, “[t]he centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised”: ibid at [54]. If reasons are required, then the failure of a superior court to give adequate reasons may also be an appellable error, and one of law: see eg. Alexandria Landfill Pty Ltd v Transport for NSW(2020) 103 NSWLR 479; [2020] NSWCA 165 at [23]–[29] (Basten JA, Leeming JA agreeing at [413]).
[59] Why, then, the law should impose different obligations on the Supreme Court and District Court in this regard is unclear. Certain specialist tribunals established by legislation may be the subject of specific obligations to give reasons, and the failure to comply with those obligations may amount to a jurisdictional error. Although not concerned with the timing of judgments or the adequacy of reasons, the decision in Ex parte Currie referred to by Kirby P in Palmer is an example of a case where the delivery of judgment by a panel not constituted in accordance with the relevant legislation was a jurisdictional error. However, there is nothing in the District Court Rules 1973 (NSW) which imposes particular obligations on the District Court in relation to the timing or content of reasons. What those obligations are is left to the common law.
[60] If the timing of reasons (where required to be given), like the content of reasons, is a question for the common law, that raises the question what the common law requires in that regard. We do not think that the common law now is as strict as Kirby P suggested in Palmer, since it must accommodate the examples we have given. In our opinion, in general a court should not make final orders without giving reasons (where reasons are required) unless there is sufficient cause to take that course, for example because of urgency. If the giving of reasons is postponed, then the obligation must be an obligation to give reasons as soon as reasonably practicable after judgment is delivered. Whether a court has failed to comply with that obligation will depend on all relevant circumstances, including the nature of the issue to be decided, the length of the delay and the reasons for any delay.
[61] Stating the test in those terms is consistent with the decisions we have referred to. It is also consistent with the decision of the Victorian Court of Appeal in Fletcher Construction Australia Ltd v Lines MacFarlane and Marshall Pty Ltd(2001) 4 VR 28; [2001] VSCA 167, where Chernov JA (with whom Charles and Vincent JJA agreed) said (at [32]) that there was “no such rule” that required a judge of a superior court to give reasons contemporaneously with pronouncing judgment. At the same time, a requirement that reasons be given as soon as practicable after judgment is pronounced recognises the importance of the prompt delivery of reasons. As Kirby P said in Palmer (at 173), admittedly in justification of a stricter standard:
This is not a blind adherence to legal history or to technical forms. It is insisted upon out of respect for our tradition of open justice and the public demonstration of its rational basis. It is observed in deference to the rights of unsuccessful parties to consider an appeal. It facilitates the performance by appellate courts of their function, including in the grant of urgent relief. Such a step can be best considered with the benefit of the reasons for the judgment appealed from.
[62] There are well-recognised reasons why courts in general are required to give reasons for their decisions. Those include: a hallmark of judicial power is that it resolves disputes in a way that is reasoned; facilitating justice being seen to be done; enabling the parties to understand the basis for the decision so as to consider exercising any rights to appeal; and because formulating reasons is a discipline which promotes better decision-making (see Ming at [26]–[29]). As to the first and second of those points, a significant delay in giving reasons for final orders may undermine the perception that justice has been done. As to the third, the time for filing any appeal will commence running when final orders are made. It will be unfair to the losing party if the time for appeal is diminished or expires before they can make an informed assessment of the prospects of an appeal. As to the fourth, most judges will have experienced cases where they have reached a particular view on a point of fact or law after a hearing but then changed their minds upon further reflection when writing their judgment. The possibility of the judge changing their mind illustrates why final orders in general should not be made until reasons are formulated.
[63] Plainly, in this case the primary judge did not deliver the reasons for her decision as soon as practicable. By its nature, the case was one where it might have been expected that the reasons for judgment would be delivered immediately after the judgment was pronounced. That did not happen. The delay was lengthy. The only apparent reason for the delay was that her Honour was under some pressure to deliver a decision and chose to do so well in advance of finalising her written reasons. That is not a satisfactory reason for the delay. Indeed, the course adopted by her Honour made the position worse because the appeal period commenced to run, yet it was not possible for Mr Rock and Ms Rock to formulate grounds for an appeal.
[64] The question remains what follows from the primary judge’s error. In answering that question, it is not easy to reconcile the approaches taken in Palmer and Mulvena, although the different decisions can be explained on the basis that in Palmer the effect of the Court’s decision was that the reasons were wholly inadequate whereas in Mulvena they were not only adequate but correct. In any event, we agree with the approach taken in Mulvena that the remedy should be confined to what is necessary to rectify the error. That approach is consistent with the conclusion that the error is not a jurisdictional one. The parties should only be put to the cost and inconvenience of a retrial if that is the only way of rectifying the consequences of the error. In this case, it could not be argued that her Honour was functus officio. It was plain that her Honour intended to deliver reasons and that fact was recorded in the orders that her Honour made on 9 May 2024.
[65] In the present case, there is no reason to think that the delay in delivering reasons affected the contents of those reasons. As we will explain, there are some problems with her Honour’s reasons. But there is nothing about those problems that suggests her Honour’s orders might have been different if they had been delivered at the same time as her reasons. Her Honour did ultimately deliver detailed reasons for her decision and any error in the orders made is capable of being corrected by this Court exercising its powers under s 75A of the Supreme Court Rules 1970 (NSW). Because of the delay in delivering reasons, Mr Rock was unable initially to formulate grounds of appeal. However, that problem has been overcome by the filing of an amended notice of appeal once the reasons became available. The same is true of Ms Rock. Whilst her summons seeking leave to appeal was filed out of time, that point has not been taken by the respondent. The absence of reasons, and the need for Mr Rock to file an amended notice of appeal, may have caused some delay in the hearing of the appeal. But that delay is not great, and any delay that has occurred could hardly be addressed by ordering a retrial. Neither Mr Rock nor Ms Rock point to any other prejudice suffered as a consequence of the delay. Accordingly, in our opinion, no further orders are required to address the error arising from the primary judge’s delay in delivering reasons.
In Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025), a five member court of the Supreme Court of the United Kingdom adjudicated that a Scottish statute – The Equality Act 2010, which seeks to give statutory protection to people who are at risk of suffering unlawful discrimination, and in the case of women by providing them with a measure of priority for employment to public boards – construed the term ‘woman’ therein as harbouring a biological meaning, not one augmented by persons gaining such status by ‘gender reassignment’. The court was at pains to emphasise that its task was to construe the language of the statute in accordance with legal principles pertaining to statutory construction, not engage in any social policy prescription by reference to meaning of such terminology within the general community.
The judgment of the court was written by Lord Hodge, Lady Rose and Lady Simler (with whom Lord Reid and Lord Lloyd-Jones agreed):
1. This appeal is concerned with establishing the correct interpretation of the Equality Act 2010 (“the EA 2010”) which seeks to give statutory protection to people who are at risk of suffering from unlawful discrimination. The questions raised by this appeal directly affect women and members of the trans community. On the one hand, women have historically suffered from discrimination in our society and since 1975 have been given statutory protection against discrimination on the ground of sex. On the other hand, the trans community is both historically and currently a vulnerable community which Parliament has more recently sought to protect by statutory provision.
2. It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010. It has a more limited role which does not involve making policy. The principal question which the court addresses on this appeal is the meaning of the words which Parliament has used in the EA 2010 in legislating to protect women and members of the trans community against discrimination. Our task is to see if those words can bear a coherent and predictable meaning within the EA 2010 consistently with the Gender Recognition Act 2004 (“the GRA 2004”).
3. As explained more fully below, the EA 2010 seeks to reduce inequality and to protect people with protected characteristics against discrimination. Among the people whom the EA 2010 recognises as having protected characteristics are women, whose protected characteristic is sex, and “transsexual” people, whose protected characteristic is gender reassignment.
4. The question for this court is a matter of statutory interpretation. But before discussing the general approach to statutory interpretation, we set out the structure of this judgment and address the matter of terminology.
5. We discuss terminology, the approach to statutory interpretation and the factual background between paras 6 and 35. We address the historical background to the GRA 2004, its interpretation and its operation between paras 36 and 111. We then between paras 112 and 264 address in some detail the interpretation of the EA 2010 to give its provisions a coherent and predictable meaning. We summarise our reasoning in para 265.
(1) Terminology
6. We are aware of the strength of feeling which has been generated by the disagreements between campaigners seeking to represent the interests of each of these groups and that taxonomy itself can generate controversy. We are content to draw on the terminology used by the Scottish Ministers in their written case for the purposes of this judgment and have adopted the following terms. A person who is a biological man, ie who was at birth of the male sex, but who has the protected characteristic of gender reassignment is described as a “trans woman”. Similarly, a person who is a biological woman, ie who was at birth of the female sex, but who has the protected characteristic of gender reassignment is described as a “trans man”. We describe trans women and trans men who have obtained a gender recognition certificate (“GRC”) under the GRA 2004 as “trans women with a GRC” and “trans men with a GRC” respectively and their gender resulting from the GRC as their “acquired gender” or “acquired sex”.
7. We also use the expression “biological sex” which is used widely, including in the judgments of the Court of Session, to describe the sex of a person at birth, and we use the expression “certificated sex” to describe the sex attained by the acquisition of a GRC.
(2) The question of statutory interpretation
8. The legislation with which this appeal is principally concerned is the EA 2010 and we address the effect, if any, of the GRA 2004 on the interpretation of the terms “sex”, “man”, “woman”, and “male” and “female” used in the EA 2010. The central question on this appeal is whether the EA 2010 treats a trans woman with a GRC as a woman for all purposes within the scope of its provisions, or when that Act speaks of a “woman” and “sex” it is referring to a biological woman and biological sex.
…
(3) How the question arises
15. For Women Scotland (“the appellant”) is a feminist voluntary organisation which campaigns to strengthen women’s rights and children’s rights in Scotland. This case is the second challenge by judicial review which the appellant has raised in relation to statutory guidance which the Scottish Ministers promulgated under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”). In the first petition for judicial review the appellant also asserted that the statutory definition of “woman” in the 2018 Act was outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 as amended (“the Scotland Act”). Before we turn to the 2018 Act and the impugned statutory guidance, it may be helpful to outline the basis of that challenge under the Scotland Act.
16. Section 29 of the Scotland Act provides that a provision of an Act of the Scottish Parliament is outside the legislative competence of the Scottish Parliament if it relates to reserved matters. Schedule 5 to the Scotland Act specifies the matters which are reserved to the United Kingdom Parliament. One of the reserved matters (section L2) is “Equal opportunities”. Since May 2016 there have been exceptions to the reservation of equal opportunities to allow the Scottish Parliament to legislate for positive action measures in relation to persons to be appointed to non-executive posts on the boards of certain public authorities in Scotland. Section L2 of Schedule 5 so far as relevant stated the exceptions as:
“Equal opportunities so far as relating to the inclusion of persons with protected characteristics in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions.
Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, other than any function that relates to the inclusion of persons in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions. …”
17. The Scottish Parliament passed the 2018 Act to provide for positive action measures to be taken in relation to the appointment of women to non-executive posts on boards of certain Scottish public authorities. The 2018 Act sets out a gender representation objective for a public board which is that “it has 50% of non-executive members who are women” (section 1(1)). The attainment of this objective is carefully circumscribed by section 4 which makes clear that preference can be given to a woman in order to further that objective only where there is no best candidate and only if the appointment of an equally qualified male candidate cannot be justified on the basis of his particular characteristics or situation. Section 2 of the 2018 Act defined “woman” as including:
“a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.”
18. In its first judicial review the appellant challenged the statutory definition of “woman” in section 2 of the 2018 Act and paragraphs of the statutory guidance dated June 2020 which discussed that definition and explained that a trans woman had to meet the three criteria in section 2: to have the characteristic of gender reassignment, be living as a woman, and be proposing to undergo, be undergoing, or have undergone a process (or part of a process) as set out in the section 2 definition. The appellant was successful on appeal before the Second Division of the Inner House of the Court of Session (For Women Scotland Ltd v Lord Advocate [2022] CSIH 4; 2022 SC 150), which in para 40 of its judgment dated 18 February 2022 held that “transgender women” is not a protected characteristic under the EA 2010 and that the definition of “woman” adopted in the 2018 Act “impinges on the nature of protected characteristics which is a reserved matter”. By interlocutor dated 22 March 2022 the Second Division declared that the definition of “woman” in section 2 of the 2018 Act was outside the legislative competence of the Scottish Parliament. In other words, because the definition of “woman” in section 2 of the 2018 Act included trans women as defined, it went beyond the scope of the exception permitted by section L2 of Schedule 5 to the Scotland Act; it therefore purported to legislate in respect of a reserved matter, namely equal opportunities, and so was outside the competence of the Scottish Parliament.
19. The response of the Scottish Ministers to this judicial decision was to issue fresh statutory guidance dated 19 April 2022. This guidance operated on the premise that the decision of the Second Division had nullified the definition of “woman” in section 2 of the 2018 Act. Instead, the Scottish Ministers asserted that a person who had been issued with a full GRC that her acquired gender was female, had the sex of a woman so that her appointment would count towards the achievement of the 50% objective. As explained below, this stance was consistent with the advice given by the Equality and Human Rights Commission (“EHRC”), which is the non-departmental public body in Great Britain with responsibility for promoting and enforcing equality and non-discrimination laws in England, Scotland and Wales.
20. The paragraph of the revised guidance which the appellant challenges states:
“2.12 There is no definition of ‘woman’ set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February and 22 March 2022. Therefore ‘woman’ in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.”
21. In July 2022 the appellant petitioned for judicial review to challenge the revised statutory guidance issued by the Scottish Ministers which it argues is unlawful because it is based on an error of law. The appellant seeks a declarator that the guidance is unlawful and an order for its reduction or the reduction of those parts which are found to be unlawful. The appellant argues that the guidance is not within the devolved competence of the Scottish Government under section 54 of the Scotland Act, which provides:
“(1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section. …
(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.”
22. The petition followed correspondence between the appellant’s solicitors and the Scottish Government Legal Directorate (“SGLD”). In a letter dated 1 June 2022 to the appellant’s solicitors the SGLD referred to the EHRC’s guidance entitled “Separate and single-sex service-providers: a guide on the Equality Act sex and gender reassignment provisions” as updated in April 2022 in the light of the decision of the Inner House which we described above. The letter quoted from a section of the EHRC guidance, which was headed “What the Equality Act says about the protected characteristics of sex and gender reassignment” and which stated:
“Under the Equality Act 2010, ‘sex’ is understood as binary, being a man or a woman. For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate. A trans person can change their legal sex by obtaining a Gender Recognition Certificate. A trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate for the purposes of the Act.”
The letter continued:
“This EHRC Guidance confirms that a trans woman with a full GRC has changed their legal sex from their biological sex (male) to their acquired sex (female). Therefore that trans woman has the protected characteristic under the 2010 Act of their acquired sex (female). In terms of the 2018 Act this means that a trans woman with a full GRC must be treated as a woman, which is the position set out in the sentence in the Guidance on the 2018 Act that your clients disagree with.”
23. The Scottish Government’s revised position therefore is that a trans woman with a full GRC is treated by the EA 2010 as having the acquired sex of a woman and therefore is a “woman” in sections 11 and 212(1) of the EA 2010. They accept that the wording of the guidance set out in para 20 above is unfortunate in so far as it suggests that the inclusion of trans women with a GRC is “in addition” to biological women included in sections 11 and 212(1) of the EA 2010. On their case, therefore, the guidance would mean exactly the same without the third sentence.
24. As explained more fully below, a person who is aged at least 18 can apply for a GRC under the GRA 2004. Section 9(1) of that Act provides that when a full GRC is issued to a person the person’s gender becomes “for all purposes” the acquired gender so that if the acquired gender is the female gender, the person’s sex becomes that of a woman. But that provision is “subject to provision made by this Act or any other enactment or any subordinate legislation”: section 9(3).
25. The central issue on this appeal is whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” are to be interpreted in the light of section 9 of the GRA 2004 as including persons who have an acquired gender through the possession of a GRC.
26. The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex. This appeal addresses the position of the small minority of trans people who possess a full GRC. Ben Cooper KC, who appears for the intervener, Sex Matters, states in para 31 of his written case that based on the most recent census data, the Office of National Statistics estimated that there are about 48,000 trans men and 48,000 trans women in England and Wales, and Scotland’s census 2022 found that 19,990 people were trans, compared with a total of 8,464 people who have ever obtained a GRC as at June 2024. He points out that neither possession of a GRC nor the protected characteristic of gender reassignment requires any specific physiological change.
…
(6) The legal background: the Sex Discrimination Act 1975
36. The Sex Discrimination Act 1975 (“the SDA 1975”) came into force on 29 December 1975, on the same day as the Equal Pay Act 1970. The long title of the Act described it as rendering unlawful certain kinds of sex discrimination and discrimination on the grounds of marriage. The structure of the SDA 1975 established the basis for the later legislation and several of the themes which are discussed later in this judgment emerge for the first time in this Act.
37. Section 1 of the SDA 1975 defined what amounted to discrimination against women. It provided that a person discriminates against a woman in any relevant circumstances if:
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man: section 1(1)(a) (generally referred to as direct discrimination); or
(b) he applies to her a requirement or condition which he applies or would apply equally to a man but where the proportion of women who can comply with it is “considerably smaller” than the proportion of men who can comply: section 1(1)(b) (generally referred to as indirect discrimination).
38. Section 2(1) provided that section 1 and Parts 2 and 3 of the Act were to be read as applying equally to the treatment of men with such modifications to the wording as necessary. However, section 2(2) provided that in applying the Act to men “no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth”.
39. Sections 5(2) and 82(1) of the SDA 1975 provided that in the Act “woman” includes a female of any age and “man” includes a male of any age. Similarly, in the Equal Pay Act 1970, section 11(2) provided that “In this Act the expressions ‘man’ and ‘woman’ shall be read as applying to persons of whatever age”.
40. Part 2 of the SDA 1975 dealt with discrimination in the employment field. Section 6(1) made it unlawful for a person to discriminate against a woman in relation to the arrangements he makes for choosing who should be offered a job, in the terms on which he offers her the job or by refusing to offer her the job. Section 6(2) made it unlawful to discriminate against an employed woman in the way that access to opportunities for promotion, training or other services were offered or by dismissing her. There were several exceptions to the prohibition in section 6 which were designed to establish the boundary between the SDA 1975 and the Equal Pay Act 1970. Broadly, subsections (4) to (7) of section 6 excepted discrimination as regards pay and pensions from this prohibition on the basis that differential treatment of this kind would be dealt with under the Equal Pay Act 1970.
41. Certain exceptions were built into the legislation, some of which were repealed long before the whole Act was superseded by the EA 2010. For example, according to section 6(3) as originally enacted, the prohibition on discrimination under section 6(1) and (2) did not apply to employment “for the purposes of a private household” or where the number of people employed was not more than five. The exception for small employers was repealed by the Sex Discrimination Act 1986 and the private household exception re-enacted in a much narrower form by section 1(2) of the 1986 Act, limiting it to where objection might reasonably be taken by a person living in the home to physical or social contact with someone of the opposite sex.
42. Section 7 of the SDA 1975 as enacted provided the exception which is reflected in the subsequent legislation, namely that discrimination is not unlawful where sex is a genuine occupational qualification (“GOQ”). The exception does not apply to discrimination in the terms and conditions on which a woman is employed; once a woman has been engaged in the job, there can be no genuine occupational reason for giving her less favourable terms and conditions than her male colleagues. The circumstances in which the defence of GOQ could be relied upon included the following:
(a) Where the essential nature of the job called for a man for reasons of physiology (other than physical strength or stamina), or for reasons of authenticity in dramatic performances: section 7(2)(a);
(b) Where the job needed to be held by a man to preserve decency or privacy because it was likely to involve physical contact or where men would be in a state of undress or using sanitary facilities: section 7(2)(b);
(c) Where the job holder had to live in premises provided by the employer and there were no facilities to accommodate women either to sleep separately or to use sanitary facilities. This was subject to the proviso that the exception applied only if it was not reasonable to expect the employer to provide separate facilities: section 7(2)(c);
(d) The job holder worked in a prison or hospital where all the people present were men and it was reasonable that the job should not be held by a woman: section 7(2)(d).
43. The defence of a GOQ could be relied on where only some of the duties of the job fell within the circumstances described but it could not be relied on in respect of a vacancy where the employer already had enough male employees to carry out those duties: section 7(3) and (4).
44. The SDA 1975 exempted a range of jobs from the ambit of the Act in whole or in part. For example, as regards prison officers it was not unlawful to impose a height requirement on both male and female prison officers: see section 18(1). Further the Act made some textual amendments to earlier legislation which assumed that all employees in occupations covered by that legislation would be men. For example, the provision in the Mines and Quarries Act 1954 which provided that no female should be employed below ground at a mine was modified to apply only to jobs where the duties ordinarily required the employee to spend a significant proportion of his time below ground: see section 21(1) of the SDA 1975. The language used in the Coal Mines Regulation Act 1908 was also modified to reflect the fact that women might now be employed; for the words “workman” or “man” there were substituted “worker”: section 21(2).
45. Part 3 of the SDA 1975 dealt with discrimination in fields other than employment, in particular schools and universities (with an exception for single-sex establishments) and in the provision of goods, facilities or services. Section 29 provided that it was unlawful to discriminate on grounds of sex in the provision of a wide range of services including banking, transport, recreation and the services of any trade or local authority.
46. Again, there were various exceptions such as providing accommodation where the provider intended to continue to reside at the premises: section 32(1)(a). Section 35(1) provided a more general exception to the prohibition in section 29(1) for a person who provided facilities or services restricted to men where, for example (section 35(1)(c)):
“(c) the facilities or services are provided for, or are likely to be used by, two or more persons at the same time, and
(i) the facilities or services are such, or those persons are such, that male users are likely to suffer serious embarrassment at the presence of a woman, or
(ii) the facilities or services are such that a user is likely to be in a state of undress and a male user might reasonably object to the presence of a female user.”
47. Further, there was an exception where it was likely that there would be physical contact between the user of the facilities and another person and that other person might reasonably object if the user was a woman: see section 35(2).
48. Part 5 of the SDA 1975 conferred further general exceptions. These included the following:
(a) Section 44 provided that nothing prevented excluding men from women’s sporting competitions or other activities of a competitive nature where the physical strength, stamina or physique of the average woman put her at a disadvantage to the average man.
(b) Section 46 made further provision about maintaining single-sex communal accommodation provided that the accommodation was managed in a way which “comes as near as may be to fair and equitable treatment of men and women”.
(c) Section 49 provided for ensuring appropriate representation on the bodies of trade unions, employer organisations and other professional or trade bodies. Where the body concerned was made up wholly or mainly of elected members it would not be unlawful to reserve seats on the body for persons of one sex in order to ensure that a minimum number of persons of that sex were members, if this was needed “to secure a reasonable lower limit to the number of members of that sex serving on the body”.
49. The SDA 1975 was amended in important respects before being repealed by the EA 2010. In 2005 and 2008, provisions were inserted by the Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467) and the Sex Discrimination (Amendment of Legislation) Regulations 2008 (SI 2008/963) to prohibit discrimination against women on the ground of pregnancy or maternity leave both in employment (section 3A) and in the provision of services etc (section 3B).
50. What we draw from this consideration of the SDA 1975 are the following points.
51. First, there can be no doubt that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex – the trans community of course existed at the time but their recognition and protection did not.
52. Secondly, the legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women.
53. Thirdly, a range of other exceptions were considered necessary and reasonable, particularly (a) in relation to sport and competitive activity where typical masculine physique would give an unfair advantage and (b) where positive action was needed to ensure that there was a reasonable representation of men and women on the boards of certain bodies.
(7) Discrimination on the grounds of being transgender: the 1999 Regulations
54. The common law of England and Wales did not recognise the possibility of a person becoming a different gender from their gender at birth. In the well-known case of Corbett v Corbett (otherwise Ashley) [1971] P 83, the High Court declared that a marriage was null and void where both parties were biological males but one had undergone gender reassignment. Ormrod J said that over a very large area, the law is indifferent to sex. In other areas, such as insurance and pension schemes, there was nothing to prevent the parties to a contract from agreeing that the person concerned should be treated as a man or a woman, as the case may be: p 105. But marriage was a relationship between a man and a woman and, in the context of marriage, even if not for other purposes, the person was still a biological male. That conclusion that a person could not change sex was applied in the criminal law in R v Tan [1983] QB 1053.
55. In P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795, [1996] ECR I-2143 (“P v S”) the European Court of Justice considered the scope of the Equal Treatment Directive, that is Council Directive 76/207/EEC (OJ 1976 L39 p 40) in the context of alleged discrimination connected to gender reassignment. The applicant (a biological male employee) was dismissed by Cornwall County Council after telling her employer that she intended to undergo gender reassignment surgery. She complained of unlawful discrimination on the grounds of her sex. The Judge Rapporteur recorded that the industrial tribunal “found that there was no remedy under the Sex Discrimination Act 1975, the applicable United Kingdom statute, since English law took cognisance only of situations in which men or women were treated differently because they belonged to one sex or the other, and did not recognise a transsexual condition in addition to the two sexes. Under English law, the applicant was at all times a male” (para 7). The Court at para 18 held that the Directive was “simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of Community law”. The right not to be discriminated against on grounds of sex was, the Court said, a fundamental human right and accordingly the Directive also applied to discrimination arising from gender reassignment (para 20).
56. The P v S decision led to the adoption of the Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102) (“the 1999 Regulations”). The 1999 Regulations amended the SDA 1975 in important ways.
57. First, regulation 2 inserted section 2A which defined discrimination as including treating a person, B, less favourably “on the ground that B intends to undergo, is undergoing or has undergone gender reassignment” for the purposes of any provision in Part 2 or, subject to a limited exception, Part 3 of the SDA 1975. A definition of “gender reassignment” was inserted into section 82 of the SDA 1975:
“‘gender reassignment’ means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process …”
58. The 1999 Regulations did not insert a free-standing prohibition on discrimination separate from section 6. Rather, the prohibition on discriminating against a woman now prohibited direct discrimination as defined by section 2A, namely on the grounds of gender reassignment, but only in the employment field. It was therefore unlawful under section 6 for A to discriminate against a woman in the ways caught by section 6 on the ground that she intended to undergo or was undergoing or had undergone gender reassignment. In light of section 2 of the SDA 1975, this also made it unlawful under section 6 for A to discriminate against a man if A treated him less favourably on that ground. However, the subsections of section 6 which prevented the overlap with the Equal Pay Act 1970 were disapplied so that discrimination in respect of pay and pensions on the grounds of gender reassignment was prohibited under section 6: see the new section 6(8) inserted by regulation 3(1) of the 1999 Regulations.
59. Regulation 4 of the 1999 Regulations inserted section 7A which provided for an exception to the prohibition of discrimination in section 6(1) and (2) of the SDA 1975 where the discrimination fell within section 2A but where “being a man” or “being a woman” was a GOQ for the job and the treatment was reasonable in view of the circumstances described in section 7(2) and any other relevant circumstances.
60. Further, section 7B was inserted into the SDA 1975 to provide an additional exception to the unlawfulness of discrimination under certain elements of section 6(1) where there was a “supplementary genuine occupational qualification” for the job. A supplementary GOQ was defined in the new section 7B(2) as arising only in the circumstances set out in subsection (2). Thus:
(a) The holder of the job was “liable to be called upon to perform intimate physical searches pursuant to statutory powers”: section 7B(2)(a).
(b) The holder of the job had to live in a private home and the job involved a degree of physical or social contact with a person living in the home or knowledge of the intimate details of that person’s life and that person might reasonably object to the job being held by someone who was undergoing or who had undergone gender reassignment: section 7B(2)(b).
(c) The holder of the job would have to share accommodation provided by the employer with other employees who, for the purpose of preserving decency and privacy, might reasonably object to sharing the accommodation and facilities with someone whilst the job holder was undergoing gender reassignment: section 7B(2)(c) and 7B(3).
(d) The holder of the job provided personal services to vulnerable individuals and the employer’s reasonable view was that the services could not be effectively provided by someone undergoing gender reassignment: section 7B(2)(d) and 7B(3).
61. Some of these exceptions (such as that described in (b) above) were limited to where the person was undergoing or had undergone gender reassignment and did not except discrimination where the person intended to undergo gender reassignment. Others (such as that described in (c) above) applied only where the person intended to undergo or was undergoing gender reassignment but not where the person had undergone gender reassignment. Similar exceptions to discrimination were also provided for other forms of employment, including contract workers (regulation 4(2)-(3) amending section 9 of the SDA 1975), and partnerships (regulation 4(4)-(5) amending section 11 of the SDA 1975).
62. The 1999 Regulations did not amend the definitions of “man” and “woman” in the SDA 1975.
(8) The GRA 2004 as enacted
63. The enactment of the GRA 2004 was prompted by the judgment of the European Court of Human Rights (“ECtHR”) in Goodwin v United Kingdom (Application No 28957/95) (2002) 35 EHRR 18 (“Goodwin”) and by a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467 (“Bellinger”). In Goodwin, the applicant’s biological sex was male but she had undergone gender reassignment surgery. The ECtHR held that it was a breach of the applicant’s right to respect for private life under article 8 of the Convention for there to be no legal recognition of her acquired gender. The ECtHR described the applicant as having initially undergone hormone therapy, grooming classes and voice training and as having “lived fully as a woman” since 1985. She later underwent gender reassignment surgery at a National Health Service hospital. The Court referred to various difficulties faced by the applicant because of the failure of the law to recognise her acquired gender. These included her inability to change her birth certificate, and different treatment as regards social security and national insurance issues, pensions and employment. The Court recognised that it had previously held that UK law did not interfere with respect for private life: para 73. But in the light of the then social conditions, it reassessed the appropriate application of the Convention.
64. The ECtHR was struck in particular by the fact that the National Health Service recognised the condition of gender dysphoria and provided reassignment surgery “with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs” (para 78). Yet there was no legal recognition of her changed status in law. The Court discussed medical evidence about the causes of what it called “transsexualism” and noted that the vast majority of Contracting States, including the UK, provided treatment including irreversible surgery. However, the ongoing debate about the exact causes of the condition were of diminished relevance because “given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role” it could not be suggested that there was “anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment”: para 81.
65. The Court concluded that the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone which is not quite one gender or the other was no longer sustainable: para 90.
66. The Goodwin judgment was considered by the House of Lords in Bellinger where their Lordships were invited to declare a marriage valid which had been entered into by a man and a trans woman. Their Lordships declined to do so. Lord Nicholls referred to Goodwin and the Government’s announcement that it intended to bring forward primary legislation to address the issue. He said that recognition of Mrs Bellinger as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 “would necessitate giving the expressions ‘male’ and ‘female’ in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex”: para 36. Lord Nicholls went on:
“37. This would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced. The issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament, the more especially when the Government, in unequivocal terms, has already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive subject.”
67. The House of Lords held further that it was not possible to “read down” the 1973 Act and made a declaration of incompatibility under section 4 of the Human Rights Act 1998.
68. The GRA 2004 came into force on 4 April 2005 and provides a framework for recognising a person’s reassigned gender. The compatibility of the UK’s provision for recognition of gender reassignment with article 8 of the Convention was considered by the ECtHR again in Grant v United Kingdom (Application No 32570/03) (2006) 44 EHRR 1. There a trans woman complained that she was only entitled to receive her state pension at age 65, the age for men, rather than at 60, the age for women. She had been issued with a GRC once the GRA 2004 came into force. The Court held that the duration of the applicant’s victim status lasted from the occasion on which she was refused a pension following the Court’s judgment in Goodwin until the passing of the GRA 2004: para 43.
69. The main provisions of the GRA 2004:
(a) provided for applications to be made for a GRC and for the criteria to be applied and the evidence to be provided: sections 1, 2 and 3;
(b) established a Gender Recognition Panel (“the Panel”) to determine those applications and provided for appeals from decisions of the Panel: section 1(3) and Schedule 1;
(c) provided for the consequences of the issue of a gender recognition certificate, including the creation and maintenance of the Gender Recognition Register described in Schedule 3;
(d) provided for a prohibition on disclosure of protected information about a person who has made an application: section 22;
(e) provided for limited amendments to the SDA 1975.
70. We discuss each of these briefly in turn, focussing for present purposes on the text of the GRA 2004 as originally enacted, since neither party has suggested that any of the amendments made to the GRA 2004 can affect how it applies to the EA 2010.
(i) Applications for gender recognition certificates
71. Section 1 of the GRA 2004 provides that a person aged 18 or over can apply for a GRC on the basis of “living in the other gender” or having changed gender in an overseas country. Section 2 provides that where the application is based on the person living in the other gender, the Panel must grant the application if satisfied that the applicant satisfies four criteria, namely that the applicant:
(a) has or has had gender dysphoria,
(b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,
(c) intends to continue to live in the acquired gender until death, and
(d) complies with the evidential requirements imposed by and under section 3.
72. The evidence required under section 3 includes two medical reports, one of which must be by a registered medical practitioner or chartered psychologist practising in the field of gender dysphoria, and that report must include “details of the diagnosis of the applicant’s gender dysphoria”. Further, if the applicant has undergone or is undergoing or plans to undergo treatment to modify sexual characteristics, one of the reports must include details of that treatment. The applicant must also provide a statutory declaration that the applicant has lived in the acquired gender for two years and intends to do so until death.
73. From its enactment, the GRA 2004 went further than the decision in Goodwin may strictly have required at that point to ensure compliance with article 8. The applicant in Goodwin had undergone what the ECtHR described as “the long and difficult process of transformation” (para 78), but the GRA 2004 recognised a broader class of transgender people as entitled to formal recognition even if they had not undergone surgery. In that respect, the GRA 2004 anticipated the decision of the ECtHR in AP, Garçon and Nicot v France (Applications Nos 79885/12, 52471/13 and 52596/13, judgment of 6 April 2017). In that case the Court held that it was a breach of article 8 to make legal recognition of a person’s transgender status conditional on sterilisation surgery or on treatment which entailed a very high probability of sterility: see para 120 of the judgment. The Court noted that imposing such a pre-condition presented transgender persons “with an impossible dilemma” if they did not want to undergo sterilisation surgery or treatment. That condition amounted to a violation of article 8. However, there was no breach of article 8 in requiring a diagnosis of gender dysphoria. There was at that time near-unanimity amongst Contracting States in requiring such a diagnosis and imposing that requirement did not infringe article 8: see para 140.
74. Applications for a GRC are determined by the Panel in private and, according to section 4 of the GRA 2004, if the Panel grants the application it must issue a GRC to the applicant. The certificate is either a full certificate if the applicant is not married or an interim certificate if the applicant is married. The Act contains complex provisions for addressing the issues raised by the response of the applicant’s spouse to the successful application: see Schedule 4 to the Act. The issue of an interim certificate is a ground for divorce and if divorce ensues, the applicant must then be granted a full GRC. Appeals on a point of law from the rejection of an application go to the High Court or Court of Session: section 8. The certificate must state that the acquired gender is male or is female: the Panel has no power to issue a “non-binary” certificate, even where the applicant has a certificate declaring them to be “non-binary” issued by an overseas authority: see R (Castellucci) v Gender Recognition Panel [2024] EWHC 54 (Admin), [2024] KB 995.
75. Section 9 of the GRA 2004 is key to the issues raised in this appeal. It remains in force in the form originally enacted and provides:
“9 General
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.”
…
(12) The importance of clarity and consistency both for those with legal rights and protections, and those who have duties imposed on them by the EA 2010
151. Accordingly, it is clear from the above that the EA 2010 gives important legal rights to individuals and groups who are vulnerable to unlawful discrimination because of a particular or shared protected characteristic, and both protects against unlawful discrimination and seeks to advance equal treatment. In doing so it seeks to strike a balance between the rights of one group and another, rights that can conflict with or contradict one another in some circumstances. An obvious example of such conflict emerges in employment cases concerning the protected characteristics of religion or belief on the one hand and sexual orientation on the other: see for example Islington London Borough Council v Ladele [2009] EWCA Civ 1357; [2010] 1 WLR 955 which concerned disciplinary proceedings taken against a designated civil partnership registrar who refused to conduct same sex civil partnership ceremonies in accordance with the Civil Partnership Act 2004 on the ground that such unions were contrary to her orthodox Christian belief that “marriage is the union of one man and one woman for life” (para 7).
152. The EA 2010 also imposes duties on individuals and organisations not to discriminate unlawfully. It does so by regulating the practical day-to-day conduct of public and private sector employers (small, medium and large), service-providers and others in relation to employees, workers, service users and members of the public who have one or more protected characteristics. Since sex as a protected characteristic is a ground for these legal rights, it must be possible for sex to be interpreted in a way that is predictable, workable and capable of being consistently understood and applied in practice by this wide range of duty-bearers.
153. The group-based rights or protections in the EA 2010 recognise that people who share a particular protected characteristic (known or perceived) often have common experiences or needs, whether arising from differences of biology or physiology, or societal expectations or structures affecting their group. These shared experiences or needs can and do give rise to particular disadvantage if they are not met, and they differentiate that group from other groups without the protected characteristic. As we have said, the duties imposed by the EA 2010 require an ability to anticipate that particular rules, policies or practices might affect those who share a protected characteristic and have distinct needs or interests in consequence. Those upon whom the EA 2010 imposes duties (the duty-bearers) must regulate their conduct and practices to avoid unlawful indirect discrimination. Organisations considering taking appropriate positive action measures must be able to identify membership of a disadvantaged group sharing a particular characteristic. Public authorities subject to the duty in section 149 (the PSED) must be able to identify differently affected groups if they are to be able to analyse the features which may disadvantage some groups over others or affect relations between them, in order to analyse the impact of their policies.
154. In short, clarity and consistency about how to identify the relevant groups that share protected characteristics are essential to the practical operation of the EA 2010.
(13) The central question: does the EA 2010 make provision within the meaning of section 9(3) of the GRA 2004 to displace the application of section 9(1)?
155. Against that background, we turn to address the central question in this appeal.
156. To recap, section 9(1) of the GRA 2004, read with section 9(2) and (3), has the effect that the gender of a person with a GRC becomes the acquired gender “for all purposes” so that “if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman”, unless there is a specific exception in the GRA 2004 itself or unless the terms and context of an enactment, including a subsequent enactment, demonstrate that there is “provision made” by that enactment pursuant to section 9(3) that negates the effect of section 9(1). In other words, section 9(1) applies unless section 9(3) applies. Section 9(3) will obviously apply where the GRA 2004 or subsequent enactment says so expressly. But express disapplication of section 9(1) is not necessary as we have explained. Section 9(3) will also apply where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1).
157. There is no doubt that the EA 2010 was enacted in the knowledge of the existence of the GRA 2004, its known consequences and the case-law which both prompted it (Goodwin) and confirmed the GRA 2004 as having remedied the Convention breach (Grant). Indeed, the EA 2010 contains an exemption for gender reassignment discrimination in the context of solemnisation of marriage, which refers expressly to the effects of section 9(1) as “[the person’s] gender has become the acquired gender under the Gender Recognition Act 2004” (see paragraph 24 of Part 6 and paragraph 25 of Part 6ZA of Schedule 3 to the EA 2010). So, the strongly worded rule in section 9(1) of the GRA 2004 must be taken to apply to the EA 2010 by virtue of section 9(2) unless there is “provision made” in the EA 2010, that disapplies or negates the effect of section 9(1) on the meaning of sex in the EA 2010. If section 9(3) does not apply, then the section 9(1) rule does apply and sex in the EA 2010 must have an extended meaning that includes “certificated sex”. If that is the position, then the Scottish Ministers’ guidance about the application of the 2018 Act is correct and lawful in making clear that trans women with a GRC can count towards the attainment of the goal of achieving 50% representation of women on the public boards covered by the 2018 Act.
158. There is no provision in the EA 2010 that expressly addresses the effect (if any) which section 9(1) of the GRA 2004 has on the definition of “sex” or the words “woman” or “man” (and cognate expressions) used in the EA 2010. The terms “biological sex” and “certificated sex” do not appear anywhere in the Act. However, the mere fact that the word “biological” is absent from the EA 2010 definition of “sex” is not by itself indicative of Parliament’s intention that a “certificated sex” meaning is intended. The same is true of the absence of the word “certificated” in the definition of “sex”.
159. In the Outer House, Lady Haldane concluded (at para 53) that section 9(2) of the Victims and Witnesses (Scotland) Act 2014 (as amended by the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021) can only properly (or fairly) be read to mean biological sex when it uses the term “sex”. This is because the purpose of the amendment (introduced by the 2021 Act) was to ensure that section 9(2) of the 2014 Act read as follows: “Before a medical examination of the person is carried out by a registered medical practitioner, the person must be given an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a sex specified by the person”. We agree with her analysis: sex as used in this provision must mean biological sex notwithstanding that there is no reference to biological sex in this provision. The clear statutory intention is to respect the right of a female or male victim of a sexual crime to request same sex care should she or he so wish because it has always been, and still is, well recognised that reasonable objection can be taken to an intimate medical examination by a member of the opposite biological sex. References to sex could only be references to biological sex in context.
160. If the EA 2010 can only be read coherently to mean biological sex, the same result must follow. The question that must therefore be answered is whether there are provisions in the EA 2010 that indicate that the biological meaning of sex is plainly intended and/or that a “certificated sex” meaning renders these provisions incoherent or as giving rise to absurdity. An interpretation that produces unworkable, impractical, anomalous or illogical results is unlikely to have been intended by the legislature.
161. What is necessary therefore is a close analysis of the EA 2010 to identify whether there are indicators within it that demonstrate that section 9(3) of the GRA 2004 applies and displaces the rule in section 9(1). We start by considering the core provisions in the EA 2010 that depend on or relate to “sex” to consider whether as a matter of ordinary language these provisions can only properly be interpreted as meaning biological sex, or whether they are to be interpreted as also extending to include persons living in the opposite acquired gender who have been issued with a GRC (see paras 166 to 209 below). We will then consider the practicability and workability of the duties imposed and protections afforded by the EA 2010 if a “certificated sex” interpretation is adopted (see paras 210 to 246 below). Finally, we will consider whether a “biological sex” interpretation is contra-indicated because it would remove important protection under the EA 2010 from trans people with a GRC (see paras 248 to 264 below).
…
(21) Summary on the EA 2010
264. For all these reasons, this examination of the language of the EA 2010, its context and purpose, demonstrate that the words “sex”, “woman” and “man” in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man. These and the other provisions to which we have referred cannot properly be interpreted as also extending to include certificated sex without rendering them incoherent and unworkable. In other words, in relation to sex discrimination (for the purposes of sections 11 and 212(1)), a person with the protected characteristic of sex has the characteristic of their biological sex only: a trans man with a GRC (a biological female but legally male for those purposes to which section 9(1) of the GRA 2004 applies) is a woman for the purposes of section 11 and a trans woman with a GRC (biologically male but legally female for those purposes to which section 9(1) applies), is a man and not entitled to be treated as a woman under the EA 2010. This conclusion does not remove or diminish the important protections available under the EA 2010 for trans people with a GRC as we have explained. To the contrary, this potentially vulnerable group remains protected in the ways we have described. In these circumstances, and notwithstanding that there is no express provision in the EA 2010 addressing the effect which section 9(1) of the GRA 2004 has on the definition of “sex”, we are satisfied that the EA 2010 does make provision within the meaning of section 9(3) that disapplies the rule in section 9(1) of the GRA 2004.
(22) Summary of our reasoning
265. We are aware that this is a long judgment. It may assist therefore if we summarise our reasoning.
(i) The question for the court is a question of statutory interpretation; we are concerned with the meaning of the provisions of the EA 2010 in the light of section 9 of the GRA (para 2).
(ii) Parliament in using the words “man” and “woman” in the SDA 1975 referred to biological sex (paras 36-51).
(iii) The 1999 Regulations, enacted in response to P v S, created a new protected characteristic of a person intending to undergo, or undergoing or having undergone gender reassignment. The 1999 Regulations did not amend the meaning of “man” or “woman” in the SDA 1975 (paras 54-62).
(iv) The GRA 2004 did not amend the meaning of “man” and “woman” in the SDA 1975 (para 80).
(v) Section 9(3) of the GRA 2004 disapplies the rule in section 9(1) of that Act where the words of legislation, enacted before or after the commencement of the GRA 2004, are on careful consideration interpreted in their context and having regard to their purpose to be inconsistent with that rule. It is not necessary that there are express words disapplying the rule in section 9(1) of the GRA 2004 or that such disapplication arises by necessary implication as the legality principle does not apply (paras 99-104).
(vi) The context in which the EA 2010 was enacted was therefore that the SDA 1975 definitions of “man” and “woman” referred to biological sex and trans people had the protected characteristic of gender reassignment.
(vii) The EA 2010 is an amending and consolidating statute. It enacts group-based protections against discrimination on the grounds of sex and gender reassignment and imposes duties of positive action (paras 113, 142-149).
(viii) It is important that the EA 2010 is interpreted in a clear and consistent way so that groups which share a protected characteristic can be identified by those on whom the Act imposes obligations so that they can perform those obligations in a practical way (paras 151-154).
(ix) There is no indication in relevant secondary materials that the EA 2010 modified in any material way the meaning of “man” and “woman” or “sex” from the meanings in the SDA 1975 (para 164).
(x) Interpreting “sex” as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings. As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity (sections 13(6), 17 and 18), and to protection from risks specifically affecting women (Schedule 22, paragraph 2), can only be interpreted as referring to biological sex (paras 172, 177-188).
(xi) We reject the suggestion of the Inner House that the words can bear a variable meaning so that in the provisions relating to pregnancy and maternity the EA 2010 is referring to biological sex only, while elsewhere it refers to certificated sex as well (paras 189-197).
(xii) Gender reassignment and sex are separate bases for discrimination and inequality. The interpretation favoured by the EHRC and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC greater rights than those who do not. Those seeking to perform their obligations under the Act would have no obvious means of distinguishing between the two sub-groups to whom different duties were owed, particularly since they could not ask persons whether they had obtained a GRC (paras 198-203).
(xiii) That interpretation would also seriously weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations (paras 204-209).
(xiv) There are other provisions whose proper functioning requires a biological interpretation of “sex”. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others (paras 210-228).
(xv) Similar incoherence and impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces (paras 229-246).
(xvi) It is striking that the EHRC has advised the UK Government of the problems created by its interpretation of the EA 2010, which include many of the matters which we have discussed above, and has called for legislation to amend the Act. The absence of coherence and the practical problems to which that interpretation gives rise are clear pointers that the interpretation is not correct (para 247).
(xvii) The interpretation of the EA 2010 (ie the biological sex reading), which we conclude is the only correct one, does not cause disadvantage to trans people, with or without a GRC. In the light of case law interpreting the relevant provisions, they would be able to invoke the provisions on direct discrimination and harassment, and indirect discrimination. A certificated sex reading is not required to give them those protections (paras 248-263).
(xviii) We therefore conclude that the provisions of the EA 2010 which we have discussed are provisions to which section 9(3) of the GRA 2004 applies. The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate (para 264).
(23) Invalidity of the Scottish Government’s Guidance
266. For all these reasons, we conclude that the Guidance issued by the Scottish Government is incorrect. A person with a GRC in the female gender does not come within the definition of “woman” for the purposes of sex discrimination in section 11 of the EA 2010. That in turn means that the definition of “woman” in section 2 of the 2018 Act, which Scottish Ministers accept must bear the same meaning as the term “woman” in section 11 and section 212 of the EA 2010, is limited to biological women and does not include trans women with a GRC. Because it is so limited, the 2018 Act does not stray beyond the exception permitted in section L2 of Schedule 5 to the Scotland Act into reserved matters. Therefore, construed in the way that we have held it is to be construed, the 2018 Act is within the competence of the Scottish Parliament and can operate to encourage the participation of women in senior positions in public life.
267. There may well be public boards on which it is also important for trans people of either or both genders to be represented in order to ensure that their perspective is brought to bear in the board’s deliberations and in the organisation’s governance. Nothing in this judgment is intended to discourage the appointment of trans people to public boards or to minimise the importance of addressing their under-representation on such boards. The issue here is only whether the appointment of a trans woman who has a GRC counts as the appointment of a woman and so counts towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women. In our judgment it does not.
Hearsay welcomes John Meredith – formerly Deputy Editor – as Co-Editor of Hearsay.
In this Issue, the lead article – ‘Cross-Examination – Planning, Purpose and When to Stop!’ – is exceptional. It has been compiled by a team of senior criminal barristers who have provided their insights on the art of cross-examination. Organising the production of this article is no mean feat; our thanks go to Elizabeth Kelso of counsel and Andrew Hoare KC for so doing. The result is a resource that will be useful to all members, whether practising in the criminal or civil spaces.
This Issue’s featured artwork is a projection upon what the reader will readily recognise as the William Jolly Bridge, by night. Such artwork was created in 2020 as part of the Museum of Brisbane retrospective exhibition titled ‘New Woman’, an exhibition celebrating the work of ‘Ground-Breaking Female Artists’ of Brisbane origin. The featured artist – Brisbane raised Emma Coulter – is now based in Melbourne. A catalogue of her work is included.
Hearsay’s interviewee in ‘10 Minutes With …’ is Amanda O’Brien, the recently appointed Principal Registrar of the Supreme, District and Land Courts. Solicitor Ms O’Brien provides insight into the challenging issues entailed in managing the administration of, and modernising, state courts in Queensland.
Obituaries are included for the Honourable Alan Demack AO and James (Jim) Crowley RFD KC. Alan and Jim contributed enormously to the bar and judiciary. The obituary for Alan is written by the Honourable Duncan McMeekin KC, while that for Jim is written by his son, barrister Joseph (Joe) Crowley.
Tony Morris KC – in a thought provoking article – considers the question ‘What is an Executive Order?’. So much is a current issue having regard to the raft of such orders made by President Donald Trump upon him recently returning to Presidential office. Barrister Dr Stephen Lee writes an interesting paper on the first Chief Justice of the United States of America, John Jay.
The ‘Regional Bar’ section item is titled ‘Barristers in Military Service’, by barrister Dr Dominic Katter, concerning counsel who have served in the military – as active service personnel and as lawyers – in Australia and overseas. Dominic interviews Association members Major General (and barrister) David Thomae AM and Air Commodore (and District Court judge) Michael Burnett AM. Each discusses their military backgrounds, coupled with the history of other members who serve – and have served – in military roles.
The ‘Words from the Past’ section includes an excellent 2020 paper ‘How to Lose a Case’ by the late Edmund King QC of the UK bar (penned shortly prior to his premature death), together with a 2016 paper by Queensland barrister Simon Couper KC on ‘Cross-Examination Basics’. Each is a ‘must read’ classic.
The ‘Reviews and the Arts’ section comprises extensive reviews of recent books – in the legal space and wider spaces – together with reviews of art and other disciplines. Thanks to Stephen Keim SC for his continuing editorial (and written) work in this section.
The ‘Advocacy’ section comprises consideration of a number of recent decisions on substantive law. The ‘Inter Alia’ section comprises a raft of disparate items, including ‘Mintie and Friends’ – this Issue having a Mexican slant to it – and the usual ‘Language’ titbits.
We thank the raft of contributors to this Issue of Hearsay. We invite contributions to future quarterly Issues.
Thanks also to our diligent editorial team of Philip O’Higgins KC, Carolyn Conway and Seraphina Noble. We also welcome Philip as deputy editor. As usual, thanks also to Dianne Lyndon of the BAQ for her industry and expertise in helping produce Hearsay.
Richard Douglas KC John Meredith Editors
We do request your contributions to the editors, deputy editor or editorial team:
Editor – Richard Douglas KC (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com). Editor – John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com). Deputy Editor – Philip O’Higgins KC (T: 3232 2122; M: 0417 997 725; E: philip.ohiggins@carbolic.com.au); Sub-Editor – Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) book and podcast reviews. Editorial Team – Carolyn Conway (T: 3229 2631; M: 0407 757 780; E: conwaycj@jeddart.com) and Seraphina Noble (T: 3210 6537; M: 0447 224 754; E: snoble@qldbar.asn.au)
Yayoi Kusama – born 1929 – is a Japanese national treasure in the conceptual “visual” art space. Her experimental years in art commenced in post-war Japan. In 1958 she moved to the United States and was part of the 1960’s New York avant-garde art scene, before returning to Japan in 1973. In her New York sojourn, her work influenced that of Andy Warhol.
To describe her art as “visual” is an understatement. Her polka dotted pumpkin (see photo above), flower sculpture and infinity mirror room art forms are recognised internationally.
Queensland barristers and judges are familiar with the work of Kusama. She was the designer of the “Eyes are singing out” concept art which encompasses the forecourt of the Queen Elizabeth II Law Courts Complex in George Street, Brisbane. Such art – in combination with the glass design of the court building – is intended to champion open and transparent justice. Photos of same – including the plaque unveiled in 2012 upon the complex’s opening – are below.
No less than 180 of Kusama’s works are presently on exhibition at the National Gallery of Victoria (NGV). The exhibition finishes in about a month hence, 21 April. The art forms I have described above are on display. The size of the exhibit is one to behold.
The writer and his spouse had the pleasure of attending the exhibition in January this year, with two Melbourne based (under 5) grandchildren. Each member of that age spectrum was enraptured with the exhibit display. It is worth the trip to Melbourne to enjoy it! See the electronic display brochure below. The writer recommends booking, and attending close to daily opening.
The writer also had the privilege of attending – in 2019, during a typhoon – the Matsumoto City Museum of Art in Matsumoto, in Nagano Prefecture, where Kusama was born. The museum has a permanent – and extensive – display of Kusama’s works. The Brisbane “Eyes are singing out” is celebrated there as part of her creative art. Such museum, too, is worth a visit if the reader is visiting Japan.
These songs were covered by the “Blues Brothers” in the eponymous 1980 film.
“Everybody Needs Somebody to Love” was written in about 1964 by Bert Berns, Solomon Burke and Jerry Wexler and originally then recorded by Burke.
“Sweet Home Chicago” is an earlier US piece, but with a contest as to the song writer.
The singers in the film, of course, are the film stars John Belushi (1949-1982) and Dan Aykroyd (born 1952).
The film was released 45 years ago – the year I was admitted to the Bar – and was one of the films of my generation. While very much a “Yankee Doodle” movie, the cast comprised accomplished comedic and other actors (Belushi, Aykroyd and Carrie Fisher), together with leading funk, rhythm and blues performers of the post-war generation (James Brown, Cab Calloway, Ray Charles and Aretha Franklin).
The film was developed from a recurring musical sketch performed on the NBC variety series “Saturday Night Live”. The film was directed by John Landis.
Welcome to the December Quarterly Issue of Hearsay.
In this issue, the lead article – ‘Sam and Ralph’ – The Role and Practice of Counsel in the System of Justice – is written by the Honourable Justice John Bond, of the Queensland Court of Appeal. His Honour – from a long career as a barrister, then a judge – identifies the integral aspects of practice as counsel before the courts, including the high importance of courteous professionalism. His Honour examines the matter – amusingly, but instructively – by analogy to the conduct of two well loved Warner Bros ‘Looney Tunes’ characters.
10 Minutes with … sees Hearsay in conversation with the Honourable Ian Callinan AC, one of Australia’s foremost advocates and judges of the late twentieth and early twenty-first century. He gives useful insights into the need for successful barristers to strive for excellence, but also harbour interests outside the law.
An article by Dominic O’Sullivan KC celebrates Danny Gore KC’s 50 years at the Queensland Bar. Duncan McMeekin writes a fascinating – and in part amusing – obituary of the recently deceased Grant Britton KC – former District Court Judge – while the Honourable Justice John Logan RFD writes an obituary of John Gierke, barrister, who for many years was the Director of the Queensland Office of the Office of the Australian Government Solicitor (formerly Deputy Commonwealth Crown Solicitor, Queensland).
Included also is a plethora of photographs, and speeches, from the 2024 Annual Bar Dinner.
I write a piece on Barrister Cyber Risk, for members to address in the course of their practice.
The Regional Bar section celebrates – with photographs – the 150th Anniversary of the establishment of the Supreme Court at Bowen, in North Queensland.
The Reviews and the Arts section – edited by Stephen Keim S.C. – contains a review of the recently produced play by Mr Callinan AC – ‘Gold and Silver’ – along with a range of reviews of books and songs (including two by the fabulous Lady Gaga).
A raft of other learned articles and case reviews on topics which will be of interest to practising barristers, judges and other lawyers may be found in this issue in the regular Advocacy, Professional Conduct and Practice and Words from the Past sections, along with the usual bits of other general interest in the Inter Alia section.
I thank the Hearsay editorial team – volunteer barristers and Dianne Lyndon – for their dedication in identifying and bringing to print material for the reading pleasure of barristers, judges, solicitors and the general public. I thank also our many contributors; without you we would not exist.
I wish all a merry and safe Christmas, and a propitious New Year.
Enjoy!
Richard Douglas KC Editor
I do request your contributions to the deputy editor, editorial team or me (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com). The deputy editor is John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com). The sub-editor is Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book and podcast reviews.
