Inclusive definitions

NSW Bar Association v EFA [2021] NSWCA 339

A drunken barrister approached a female clerk at a dinner and suggested oral sex.  The tribunal found he had not engaged in ‘professional misconduct’, which included ‘conduct … that would … justify a finding that the lawyer is not a fit and proper person to engage in legal practice’4.  The Association appealed.

Inclusive definitions ‘generally – but not always’ expand the ordinary meaning of words5 (it depends on context6).  It was held (at [118]) that common law ‘professional misconduct’ was incorporated into the definition, which then extended to character (not just conduct).  Although there was ‘appalling conduct’, it did not justify a finding of unfitness to practice here7.

This principle is from Episode 81 of interpretation NOW!


4 s 297(1)(b) of the Legal Profession Uniform Law (NSW).

5 (at [115]), Dilworth [1899] AC 99 (at [106]), YZ Finance (1964) 109 CLR 395.

6 Cranbrook [2006] NSWCA 155 (at [38-43]) cited, Pearce 9th ed (at [6.8]).

7 Particulars of the conduct in question appear in the judgment.