It was contended that van Es attempted to obtain an improper advantage by behaving deceitfully during the Legal Ethics for Barristers examination administered by the NSW Bar Association on 24 February 2012 and in lying to officers of the Bar Association when attempting to explain his actions. Specifically
(a) On 24 February 2012, as a candidate in the examination in Ethics for Barristers conducted by the Bar Association of New South Wales, the Opponent attempted to obtain an improper advantage by deceitfully:
(i) taking to his desk in the examination room materials which he was not permitted to use during the examination or the reading time for the examination;
(ii) referring to materials to which he was not permitted to refer during the examination or the reading time for the examination;
(iii) attempting to conceal from the invigilator, by turning them face down on his desk, materials to which he had been referring and which he was not permitted to use during the examination or the reading time for the examination;
(iv) refusing to allow the invigilator to examine the materials to which he had referred in the reading time for the examination;
(v) after leaving the examination room attempting to regain entry after concealing the prohibited material under his clothing and deceitfully inviting the invigilator to examine the materials he had brought to the examination;
(b) On 27 February 2012 at the premises of the NSW Bar Association the Opponent falsely denied to Philip Selth, Executive Director, NSW Bar Association and to Christopher D'Aeth, Director of Organisation and Development of the NSW Bar Association:
(i) that he had had unauthorised material with him in the examination room on 24 February 2012, and;
The judgment states that(ii) that he had done anything wrong on 24 February 2012 during his attendance at the Ethics examination conducted by the NSW Bar Association at the Bar Common Room.
The respondent, Mr Hendrick Jan van Es, was admitted as a Lawyer of the Supreme Court of New South Wales on 17 February 2012. He does not hold a current Practising Certificate. On 22 August 2011 Mr van Es applied for registration to sit for all three NSW Bar Association Bar examinations to be held in February 2012. His registration was confirmed on 23 August 2011 and the NSW Bar Association subsequently provided Mr van Es with details of the examination materials, including general documentation concerning examination procedure, examination dates and times and reading lists.
On 31 October 2011, at his request, the NSW Bar Association sent Mr van Es an email setting out the material that had been permitted to be taken into both the examinations for Evidence and Ethics in July 2011. Mr van Es had been previously advised that the examination materials and formats were under review because a new version of the NSW Barristers' Rules had recently commenced.
The NSW Bar Association finalised the materials for the February 2012 Ethics examination in December 2011 and uploaded the relevant information to the area of its website dealing with examinations. The information included a sample cover page for the Ethics examination and listed the materials that would be permitted in the February 2012 examination.
(a) Mr van Es attends the Ethics examination on 24 February 2012
Mr van Es was one of 55 candidates who presented to sit the Ethics examination on 24 February 2012. The circumstances in which Mr van Es' conduct came to notice on that day was described in an affidavit dated 1 May 2013 made by Mr Christopher D'Aeth, Director of Professional Development Department of the NSW Bar Association. Mr D'Aeth was not cross-examined. In his affidavit, Mr D'Aeth states that he read from the 'Examinations Procedure' documentation as the candidates entered the room. Mr D'Aeth also notes that the permitted material for the examination was clearly set out on the cover page of the February 2012 Ethics examination paper.
During the 15 minutes reading time at the beginning of the examination period, Mr D'Aeth noticed that Mr van Es had with him an unusually large bundle of loose papers, which did not look like any of the permitted materials. Mr van Es appeared to be reading and "shuffling through" the loose papers. Upon being approached by Mr D'Aeth, Mr van Es turned over and covered the loose pages to which he had been referring. When Mr D'Aeth requested that Mr van Es show him his examination materials Mr van Es refused. Mr D'Aeth then informed Mr van Es that he would need either to show him his examination materials or be required to leave the examination room. Mr van Es proceeded to collect his materials and leave the examination room.
Some minutes later Mr van Es sought to speak with Mr D'Aeth outside the examination room, at which time he invited Mr D'Aeth to look at his examination materials. He said "I haven't left the building". It may be inferred that Mr van Es was seeking to re-enter the examination room to sit the examination. Mr D'Aeth informed him that as he had chosen to leave the examination room he would not be permitted to sit the examination and would need to register for the next examinations scheduled for July 2012.
Mr D'Aeth subsequently obtained CCTV footage taken from the cameras situated at the Bar Association reception and lift area between 9.30am and 9.45am on 24 February 2012. The footage showed Mr van Es leaving the examination room, and then attempting to open a door at the end of the corridor. He then sorted through his materials, extracted some papers from those materials and placed them down the front of his trousers, pulling his jumper down over them.
(b) Mr van Es meets with Messrs Selth and D'Aeth on 27 February 2012
The Executive Director of the NSW Bar Association, Mr Philip Selth, wrote to Mr van Es at 12.25pm on Monday 27 February requesting that they meet during the next three weeks to discuss his eligibility to sit the July Bar exams. Mr van Es arrived at the Bar Association's reception about 35 minutes later, without an appointment, and a meeting took place with Mr Selth and Mr D'Aeth. What follows is taken from Mr D'Aeth's affidavit and detailed file note of that meeting.
Mr van Es provided his version of events which included his anxiety on the day of the Ethics examination, that he had suffered a "panic attack", and that he had wished to return to the examination room to participate in the examination. Mr van Es said "I did not have unauthorised material with me in the examination room and I did nothing wrong". Only after Mr van Es was alerted to the fact that CCTV footage had captured his movements once he had left the examination room on the previous Friday did he offer an explanation for having hidden the material under his clothing. The file note records the following occurring thereafter:
"Mr van Es admitted he had removed items from the bag but said that they were his study notes and that they were in his bag in the examination room and were not with him at his examination desk nor in his folder of materials. Mr Selth indicated that such behaviour in an Ethics examination raised serious questions in our mind. Mr van Es indicated that he did not regard his behaviour as being part of the Ethics examination as he had left the examination room. Mr Selth indicated that he thought such an explanation was an exercise in semantics, especially as, at the time, Mr van Es was asking to return to the examination.
Mr Selth indicated that he considered this incident a serious matter - in particular misleading a member of staff - by asking Mr Selth to review his material knowing that material had been placed under his clothes - and the lack of candour. Mr Selth also indicated that he felt the explanation just given lacked candour; was not included or offered in the earlier explanation of events. In fact, it was not until Mr Selth revealed the presence of the camera footage that any explanation concerning the material he had hidden under his clothing was offered."After that things continued to go pear shaped and provide teaching material for Law ethics teaching.