Long struggle for Christine Nash ... Desperation in stumping-up money for a property scheme led to an unfortunate end to life at the bar ... Balmain property developers have reason to cry
Tobias: led the pack in rejecting most of Nash's appeal
Poor Christine Nash, former barrister of Ada Evans Chambers, didn't get much of a new year.
Bathurst, Leeming & Tobias turned down two out of three grounds of appeal from findings of the Administrative Decisions Tribunal.
The ADT's order for her removal from the jam roll was not disturbed.
Essentially, Nash was strung-up for misleading the District Court over her involvement in a Balmain property development scheme, to which she had lent about $75,000.
She was sued by George Ferizis, who exercised his rights under an option to purchase and sued in the Dizzo to retrieve his $500,000 option money.
The tribunal found the barrister had engaged in professional misconduct during the course of the Ferizis case by knowingly giving false evidence. Specifically:
- Representing that she had no personal or financial interest in the Balmain project and no reason to give a guarantee in relation to the project;
- Claiming that Ferizis had not asked for a guarantee, when she knew he had done so; and
- Providing an affidavit that Ferizis' solicitor, James Lahood, witnessed her signature on the guarantee, even though she knew he had not done so.
We reported the ADT's findings here.
Nash's representation of her interest in the Balmain project
She submitted on appeal that she had acknowledged the nature of her involvement in the project.
Furthermore, she submitted that the tribunal had failed to clearly identify what interests she dishonestly disclaimed and that this undermined its decision.
The appeal judges, with Tobias leading the pack, held that although Nash sought to deny that "things had reached a point of desperation with having money to proceed" with the development, she had acknowledged her personal and financial connections to the project.
This was held to be inconsistent with the tribunal's finding that the appellant had given false evidence regarding her interest in the Balmain development.
This part of the appeal was upheld.
The guarantee request
The appellant submitted that she did not remember being asked to give a guarantee, as it was a matter of little significance to her.
She referred to MacKenzie v The Queen (1996) and argued the ADT had reversed the onus of proof by characterising her denial that the request had taken place as dishonest, as opposed to merely mistaken.
The Court of Appeal distinguished MacKenzie and rejected this line of argument.
Murray Tobias AJA noted the appellant had unequivocally denied that Ferizis requested a guarantee in the District Court, but asserted at the tribunal she could not recall his request.
This left it open for the tribunal to conclude that her evidence in the District Court was disingenuous.
The appeal judges also held the tribunal did not reverse the onus of proof, as it recognised and excluded the possibility of a mere mistake on the evidence.
The witness to the signature
The appellant argued that the identity of the person who witnessed her sign the guarantee was immaterial and therefore unlikely to be the subject of deliberately false evidence.
The Court of Appeal held the appellant had indicated she was able to recall the event and was able to answer questions about the circumstances under which she gave her signature.
Lahood's evidence did not assist Nash on this point.
He said assured her she was not being asked to sign as a guarantor, only as an acknowledgement that she had received $500,000 of Ferizis' money.
This, "strongly suggests that the question of guarantees had been raised".
"Indeed, his evidence was clearly premised on his having been instructed to obtain personal guarantees from the directors. That evidence contradicts the appellant's account, according to which Mr Ferizis had made no request for guarantees of which she was aware."
The CA held the appellant displayed a ...
"seemingly reckless indifference in giving her evidence that her account reflected precisely what had occurred and in maintaining that evidence when ... she was aware that was not the case."
Nash is no longer plying her trade.
It's sobering to think that if every barrister was struck off for misleading the District Court, the bar would be a quite depleted.
See CA judgment