Public and Briefing Profession Interest Knowing of Disciplinary Charge against Barrister

In Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133 (22 November 2024) barrister Enzo Belperio was accused of sexual harassment and gross indecency towards a junior female solicitor, referred to as “F”. F’s firm had regularly engaged Mr Belperio, and the alleged misconduct was connected to his professional practice, occurring both at a public bar and later in Mr Belperio’s chambers.

Initially, the Legal Practitioners Disciplinary Tribunal dismissed the charge of professional misconduct because of a lack of jurisdiction. On appeal, the Supreme Court of South Australia (Court of Appeal) found that the dismissal was premised on an erroneous conclusion. The dismissal was set aside, allowing the disciplinary proceedings against Mr Belperio to continue.

This decision by the Supreme Court of South Australia (Court of Appeal) concerned applications by Mr Belperio and his wife for orders to suppress publication of his identity, to preserve and continue his anonym “A Practitioner” and to restrict or redact certain material filed in the matter. The basis of the application was the potential damage to his reputation, his mental health and the hardship that his wife and children might suffer if his name was publicly linked to the allegations.

The Court dismissed the application on the basis that the primary purpose of suppression orders is not to protect personal reputation but to prevent harm to the administration of justice. The Court noted that the public’s right to access court records and proceedings should only be restricted in exceptional circumstances. In this case, there was no evidence to support the claim that Mr Belperio’s mental or other ability to defend himself would be compromised, nor that his wife and children would suffer any hardship over and above that which is a necessary and common incident of the open justice principle. Furthermore, the public – including potential briefing solicitors, for consideration in protection of their clients and staff – were entitled to know of the disciplinary allegations.

The Court of Appeal wrote:

Preservation of reputation – an interest of justice?

53. The common law principle of open justice rests on liberal democratic political values of transparency, integrity, and accountability in the exercise of judicial power. It follows that the common law principle may be affected by statutory provisions which manifest a legislative judgment on the scope and weight to be given to that principle. There should be no incoherence between statutory statements of the principle and the common law.
54. As we have seen, the core of the early common law statements of the open justice principle could be expressed as an ‘open court door’ rule. Urbanisation, and the centralisation of courts, have challenged the efficacy of the open court door rule. Courthouses are now often some distance from the community out of which the controversy arose. Over time, too, the public has become accustomed to relying on news media reports of judicial proceedings….

…

56. It has been observed thus far that it is only where the conduct of a proceeding before the public gaze would itself prejudice the administration of justice, whether by virtue of the underlying subject-matter of the proceeding, or for some other recognised reason, that the common law departs from the open justice principle.
57. The prejudice to the administration of justice on which Mr Belperio relied before the Tribunal, and before this Court, was that his professional and personal reputation would be unfairly damaged if the allegations were published before, and without, the charges being proved. At the level of principle, a number of obstacles stand in the way of that contention. First, there is no obvious interest in the administration of justice connected to personal and professional reputation. It is not analogous to commercially confidential information or intellectual property. Nor does it raise a public interest in the administration of justice like the encouragement of informers or victims to engage in the enforcement of the criminal law. To this end, as McCallum CJ, Mossop and Kennett JJ recently observed in Zhang v Age Co Pty Ltd:

… The costs of open justice include costs to the privacy and reputation of individuals, the potential costs to the fairness of trials, the risk of sensationalisation and distortion of what occurs in court, and risks to the security of individuals and governments … Where the balance falls between the undoubted benefits of open justice and its costs is a legitimate subject for debate. Further, where the balance falls may change over time. Modern technology has reduced the technical and physical barriers to mass collection and distribution of information and this changes the consequences of the application of the open court principle, potentially increasing the costs to people’s privacy or reputation without a corresponding increase in the discipline imposed upon the judicial system. Similarly, it may be affected by the extent to which media organisations conduct themselves responsibly and the extent to which media reporting is seen to be advancing the public interest in a manner which is consistent with the values of fairness and impartiality underlying the proper administration of justice.

58. Indeed, the common law has not recognised such an interest in the case of criminal defendants generally. The short‑lived statutory protection given to defendants charged with sexual offenceswas based on now exploded myths and remains only as collateral consequence of the protection of a victim’s privacy.
59. Secondly, publicity before adjudication is necessarily an ordinary incident of the open justice principle.
60. Thirdly, consistently with the open justice principle, a bare statement that a person has been charged with a criminal offence or disciplinary action, if that is the truth of the matter, is not defamatory. The law of defamation does not protect the charged person from the harm to his or her reputation caused by the reporting of that fact. However, the law of defamation protects persons charged with an offence from commentary on the allegations which seeks to pre-empt their proper adjudication, as observed by Steytler J in Reynolds v Panten:

Acceptance of [the open justice] principle does not have the consequence that individual rights, whether to the protection of reputation or otherwise, might, at will, be exposed to unjustifiable attacks in circumstances in which publication of those attacks will ordinarily be protected by privilege (cf R v Horsham Justices (at 797)). Great harm can, as was mentioned by Kirby P in Raybos Australia Pty Ltd v Jones (at 59-60), be done to individuals by the widespread circulation of protected reports of their involvement in criminal or quasi criminal proceedings in circumstances in which this damage might be quite unjustifiable.

61. Fourthly, there is a strong, countervailing, public interest in the public knowing that persons who hold a licence to practise in a professional capacity, and are, therefore, held out as fit and proper persons to do so, are subject to charges which, if proved, may result in a finding that they are not fit and proper to do so and the suspension or revocation of their right to practise.
62. Counsel for Mr Belperio contended that, even if proved, the professional misconduct with which he is charged might not lead to a finding that he is not a fit and proper person to practise the law, because the conduct was not directly connected to legal practice. It is beyond argument that professional misconduct ‘on the part of a legal practitioner may extend to conduct in his private capacity’. Professional misconduct encompasses conduct ‘occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law’. The setting in which it is alleged Mr Belperio engaged in misconduct was a social occasion but was closely connected to Mr Belperio’s practice as a barrister and F’s employment in a firm which often briefed him. It is alleged that F attended that occasion because Mr Belperio asked a more senior solicitor in that firm to ask her to attend. That conduct, on its face, involves two imbalances of power, founded in the hierarchy of the legal profession.
63. The charge alleged that Mr Belperio further abused the imbalance of power inherent in his relative seniority and as a member of the Bar in the way he conducted himself towards the junior solicitor in a public bar, and later in his Chambers.
64. Should the charge be proved against Mr Belperio, he is likely to be found to have behaved in a way which brings his fitness to practise as a legal practitioner into question. The administration of the law is premised on respect for the equal human dignity of all persons. The charged conduct, if proved, is antithetical to that most fundamental of all liberal democratic values.
65. There is a public interest in relatively junior legal practitioners, and their employers and supervisors, knowing that the charges have been brought so that it may be taken into account before deciding to brief Mr Belperio. It is a matter for them to give the fact that a contested charge has been brought, but not yet determined, such weight as they see fit in discharging their duties to their clients and employees. There is also a public interest in clients knowing of the charges before accepting a solicitor’s advice to brief Mr Belperio. Suppression of the information is not only contrary to the open justice principle, and, therefore, liable to diminish public confidence in the disciplinary regime, it is also a paternalistic denial of the personal autonomy of those legal practitioners and of members of the public who may have dealings with Mr Belperio in his professional capacity.

 (footnotes omitted, emphasis added)

A link to the decision is here.