Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of New South Wales v Franks [2011] NSWADT 119
• Hearing dates: 13 April 2011
• Decision date: 26 May 2011
• Jurisdiction: Legal Services Division
• Before: M Chesterman, Deputy President; M Riordan, Judicial Member; E Hayes, Non-judicial Member

Decision

1. The Respondent is guilty of professional misconduct.

2. The name of the Respondent is to be removed from the local roll.

3. The Respondent is to pay the Applicant's costs of and incidental to these proceedings.

• Catchwords: Disciplinary application - solicitor - no appearance by solicitor - forgery - misleading investigator
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Administrative Decisions Tribunal Rules 1998; Legal Profession Act 2004
• Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 KB 750; Briginshaw v Briginshaw (1938) 60 CLR 336; Jones v Dunkel (1959) 101 CLR 298; Kennedy v Council of the Incorporated Law Institute of New South Wales, (Unreported; noted in (1939) 13 ALJ 563); NSW Bar Association v Meakes [2006] NSWCA 340
• Category: Principal judgment
• Parties: Council of the Law Society of New South Wales (Applicant); Adam Franks (Respondent)
• Representation: A Matalani (Applicant); No appearance (Respondent)
• File Number(s): 102027

REASONS FOR DECISION

Introduction

1 On 13 October 2010, the Council of the Law Society of New South Wales ('the Law Society') filed an Application under the Legal Profession Act 2004 ('the LP Act') alleging that the Respondent, Adam Franks ('the lawyer'), was guilty of professional misconduct on the following two Grounds. These were: (1) submitting to an Insurance Broker, on behalf of a client, a valuation which he forged, and (2) misleading an investigator. Particulars of the alleged misconduct were supplied in a schedule to the Application.

2 The orders sought in the Application were that the lawyer's name be removed from the Roll and that he pay the Law Society's costs of and incidental to these proceedings.

3 Also on 13 October 2010, the Law Society filed four affidavits: an affidavit sworn on 1 October 2010 by its solicitor, Mr Raymond Collins; an affidavit sworn on 26 August 2010 by Mr Ronald Dunlop, an investigator employed by the Society; an affidavit sworn on 1 September 2009 by Mr Rob Scerri; and an affidavit sworn on 8 September 2010 by Mr Matthew Hannaford.

4 On 23 November 2010, the Law Society filed a further three affidavits, sworn respectively by Ms Barbara Abood (on 17 November 2010), Ms Lauren O'Brien (also on 17 November 2010) and Mr Rodney Slater (on 19 November 2010).

5 The lawyer did not file a Reply or any evidence.

6 At the hearing before us on 13 April 2011, there was no appearance by or on behalf of the lawyer. Mr Matalani, who appeared for the Law Society, tendered copies of correspondence that had taken place between the Law Society and the lawyer after the Application had been filed. He submitted that this correspondence showed that the Law Society had complied with the provisions of the Administrative Decisions Tribunal Rules 1998 ('the ADT Rules') relating to cases when there was no appearance by a respondent to a disciplinary application filed under the LP Act. The purpose of these provisions is to ensure that the respondent has received adequate notice both of the nature of the case being brought against him or her and of the date of the hearing.

7 Mr Matalani further submitted that we should therefore hear and determine the Application in the absence of the lawyer.

8 Having considered this evidence, together with relevant documents contained in the Registry's file on this case and the relevant provisions of the ADT Rules, we indicated that we accepted these submissions. It is appropriate that we record here our reasons for so deciding.

Relevant statutory provisions

9 Section 138 of the Administrative Decisions Tribunal Act 1997 contains relevant provisions relating to the service of documents and the giving of notices:-

138 Notices, service and lodgment of documents

(1) Service of documents and giving of notices

For the purposes of this Act, a notice or document may be given to a person (or a notice or document may be served on a person):

(a) in the case of a natural person-by:

(i) delivering it to the person personally, or

(ii) leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document...

10 The relevant provisions of the ADT Rules are rules 25, 26, 27 and 29. Their use of the term 'information' instead of 'application' and their references to the Legal Profession Act 1987 show that they have not been amended to take account of the enactment of the LP Act in 2004. They state:-

25 Accompanying affidavit

(1) If an informant lodges an information with the Tribunal, the informant must at the same time lodge with the Tribunal an affidavit sworn by a competent person on the informant's behalf containing particulars that are sufficient to:

(a) identify the author of the complaint to which the information relates and describe briefly the allegations of unsatisfactory professional conduct or professional misconduct on which the complaint is based, and

(b) describe briefly the action taken by the informant to investigate the complaint, and

(c) identify:

(i) any person who investigated the complaint, or matters associated with it, and on whose evidence the informant relies, and

(ii) the reports or other documents relating to the investigation which the informant intends to tender in evidence, and

(d) establish, for the purposes of section 128 of the Legal Profession Act 1987 , that the person who is the subject of the complaint was a legal practitioner to whom Part 10 of the Legal Profession Act 1987 applies, at the time when the alleged professional misconduct, or unsatisfactory professional conduct, occurred.

(2) The informant must lodge with the information and the affidavit required by subrule (1):

(a) true copies of the reports and other documents, if any, referred to in subrule (1) (c) (ii), identified as exhibits to that affidavit, or

(b) an affidavit by the person who conducted the relevant investigation annexing copies of the reports and other documents.

26 Service of information and related documents

As soon as practicable after lodging the information with the Tribunal, the informant must serve sealed complete copies of the following documents on the legal practitioner in accordance with section 138 of the Act:

(a) the information, and

(b) any affidavit, report or other document lodged with the Tribunal under rule 25.

Note. Section 138 of the Act provides for the means by which the service of documents may be effected for the purposes of the Act.

27 Lodgment of a reply to information

(1) The legal practitioner in respect of whom an information is lodged must lodge with the Tribunal a reply to the information as required by section 167 of the Legal Profession Act 1987 within 21 days from the day on which the documents referred to in rule 26 are served.

(2) The reply must:

(a) be in or to the effect of the approved form, and

(b) traverse each allegation in the information with which the legal practitioner takes issue and must state in summary form any material facts and circumstances on which the legal practitioner relies.

(3) If the legal practitioner fails to lodge with the Tribunal a reply complying with subrule (2) within the time specified by subrule (1) or such further time as the Tribunal allows, the legal practitioner may not lead evidence on the hearing of the information in relation to any matter of which notice should have been given in a reply unless the Tribunal grants leave to do so.

29 Matter may be listed for hearing despite absence of legal practitioner

The Tribunal may list an information for hearing and may proceed to conduct a hearing, despite the legal practitioner's failure to appear, if the following matters are proved to the satisfaction of the Tribunal:

(a) that the documents referred to in rule 26 have been served on the legal practitioner,

(b) that the time limited for the lodging of a reply to the information, or any extension of that time ordered by the Tribunal, has expired,

(c) that the time specified by the Tribunal for compliance with any direction given by it to the parties has expired,

(d) that when it proceeds to conduct a hearing, sufficient notice has been given to the legal practitioner of the date of the hearing.

The steps taken to notify the lawyer

11 The evidence that we have outlined established to our satisfaction the following matters.

12 The affidavits by Mr Collins and Mr Dunlop, which were filed together with the Application on 13 October 2010, contained the material required to satisfy rule 25.

13 The lawyer, having received notice of the Application, appeared in person at a directions hearing set down for 1 December 2010. At that hearing, pursuant to leave granted by the Tribunal, the Law Society served on him the Application and copies of the seven affidavits described above at paragraphs [3] and [4]. These included the affidavits of Mr Collins and Mr Dunlop. At that hearing, the Tribunal directed that the lawyer's Reply to the Application should be filed and served on or before 25 January 2011 and that there should be a second directions hearing on 2 February 2011.

14 In a letter dated 1 December 2010 and sent to the lawyer at his last known address, Mr Matalani reproduced these directions and enclosed both a copy of rule 27 of the ADT Rules and a sealed copy of the Application. He explained that through an error the copy of the Application that had been served on the lawyer earlier that day had some pages missing.

15 At the second directions hearing on 2 February 2011, Mr Matalani appeared for the Law Society, but there was no appearance by or on behalf of the lawyer. The Tribunal directed that the lawyer's Reply to the Application should be filed and served on or before 23 February 2011, that there should be a third directions hearing on 2 March 2011 and that at that directions hearing a date would be set for the hearing of the Application.

16 In a letter dated 2 February 2011 and sent by registered post to the lawyer at his last known address, Mr Matalani referred to the lawyer's failure to appear at the directions hearing earlier that day and set out the directions that had been given, placing emphasis on the Tribunal's statement that at the next directions hearing a date would be set for the hearing of the Application. He also enclosed a further copy of rule 27 of the ADT Rules, drew the lawyer's attention to subrules (2)and (3) and asked whether the lawyer would require the attendance of any of the Law Society's witnesses at the hearing.

17 On 4 February 2011, the lawyer, or an agent on his behalf, signed a Post Office document headed 'Delivery Confirmation - Advice Receipt' acknowledging receipt of this registered letter.

18 In a letter dated 7 February 2011 and sent by ordinary pre-paid post to the lawyer at his last known address, the Registry referred to his failure to appear at the recent directions hearing and set out the directions that had been given.

19 In a letter dated 18 February 2011 and sent by registered post to the lawyer at his last known address, Mr Matalani enclosed a further sealed copy of the Application. He explained that this was being sent because the lawyer may still not have received a correct copy. He also reminded the lawyer of the contents of his letter of 2 February 2011.

20 On 4 April 2011, the lawyer, or an agent on his behalf, signed a 'Delivery Confirmation - Advice Receipt', acknowledging receipt of this registered letter.

21 At the third directions hearing on 2 March 2011, Mr Matalani appeared for the Law Society, but there was again no appearance by or on behalf of the lawyer. The Tribunal directed that the matter be listed for a one-day hearing on 13 April 2011.

22 In a letter dated 2 March 2011 and sent by registered post to the lawyer at his last known address, Mr Matalani referred to the lawyer's failure to appear at the directions hearing earlier that day and advised that the matter had been listed for a one-day hearing on 13 April 2011. He further advised that the basis for the listing with an estimate of one day was that the lawyer would not be filing a Reply or relying on any evidence and had not required any of the Law Society's witnesses to attend for cross-examination. A further complete copy of the Application was enclosed.

23 No 'Delivery Confirmation - Advice Receipt' was completed with reference to this letter.

24 On 14 March 2011, the Registry sent to both the Law Society and the lawyer a letter which, after referring to 'the hearing listed on 13 April 2011', set out how the Tribunal would be constituted and asked for confirmation in writing within 14 days that there was no objection to this constitution.

25 This letter was sent to the lawyer by registered post. On 16 March 2011, the lawyer, or an agent on his behalf, signed a 'Delivery Confirmation - Advice Receipt', acknowledging receipt. The Registry did not, however, receive any reply from him as requested.

26 In the light of this evidence, we were satisfied at the hearing of the following matters, as required by rule 29 of the ADT Rules: (a) the documents referred to in rule 26 had been served on the lawyer; (b) the time, as extended by directions of the Tribunal, within which he was to lodge a Reply had expired; (c) the Tribunal had not given any other directions requiring compliance by either party within a specified time; and (d) sufficient notice of the date of the hearing had been given to the lawyer.

27 With reference specifically to the last of these matters, we make two observations. First, although section 138 of the Administrative Decisions Tribunal Act 1997 permits service by pre-paid post only, the two letters referring to the date of the hearing (i.e., the Law Society's letter of 2 March 2011 and the Registry's letter of 14 March 2011) were sent to the lawyer by registered post. Secondly and significantly, although there was no acknowledgment of receipt by him of the Law Society's letter, receipt of the Registry's letter was acknowledged by the placing of his signature, or that of an agent, on the appropriate Post Office form. Because this occurred on 16 March 2011, four weeks before the date for the hearing, he had 'sufficient notice' within the meaning of rule 29(d).

The matters alleged in the Application

28 As already indicated, the Grounds stated in the Law Society's Application were that the lawyer submitted to an insurance broker, on behalf of a client, a valuation which he forged and that he misled an investigator. The Application indicated that Particulars 1A to 1AA related to the first Ground and Particulars 1BB to 1DD to the second.

29 Following one minor amendment made with leave at the hearing, the Particulars were in the following terms:-

In these particulars:

"the lawyer" means Mr. Adam Franks

1. (Grounds 1 and 2)

A. On 16 February 2009 Mr Hutchin prepared an insurance claim for accidental damage to a 1989 Kenworth Prime Mover, registered no. 819-KO ("the truck") The claim was forwarded to OAMPS Insurance Brokers. The truck was insured by Lumley General Insurance Limited ("Lumley") for up to a market value or $65,000.

B. On 3 March 2009 OAMPS advised Mr Hutchin that Lumley had accepted the claim and offered to settle for a gross amount of $49,665, being a net amount of $44,150.

C. Mr Hutchin declined this offer because he had made modifications on the truck prior to the accident. In particular, he rebuilt the engine for $15,000.

D. By facsimile dated 31 March 2009 OAMPS informed "Lloyd and Evelyn" from LG & GT Hutchin that they had received an independent valuer's report for the truck which was said to have a value of $35,000 plus GST.

E. On 15 April 2009 the lawyer caused a facsimile to be sent to DMS Davlan to obtain a quote for the "production of a pre-accident valuation report for our client's truck that was written off in an accident on 14 February 2009" .

F. By email dated 6 May 2009 Barbara Abood, Secretary to the lawyer, sent correspondence from the lawyer to Mr Gaffney of DMS Davlan which stated "We are pleased to advise that your quotation has been accepted and now ask that you please undertake the valuation the subject of your quotation" .

G. On Friday, 12 June 2009 Melanie Vidler (Administration Assistant for DMS Davlan) sent "a copy of the valuation requested" to Barbara Abood.

H. On Monday 15 June 2009 Ms Abood forwarded Ms Vidler's email to the lawyer with the following message

"Please see attached valuation for Lloyd Hutchin.

I will print this out for you."

The emails enclosed a letter dated 12 June 2009 from Matthew Hannaford of DMS Davlan which noted on the front page of the valuation report

"Auction realise value: $30,000.00 (Thirty thousand dollars only)

Fair market value $40,000.00 (Forty thousand dollars only)"

The letter from Mr Hannaford and valuation report was unsigned ("valuation report version 1").

I. A signed hardcopy version of Mr Hannaford's letter dated 12 June 2009 enclosing his report was sent by mail to the solicitor. Mr Hannaford sent the hardcopy of the valuation report on 19 June 2009 to the lawyer.

J. Ms Abood informed Mr Dunlop that it was her usual practice to either hand such documents to the lawyer or leave them on his keyboard. She also recalled the values contained in the email report to be the same as those contained in the bound mail version of the report, received days later.

K. By email correspondence dated 16 June 2009 the lawyer sent correspondence of the same date to Alexia of OAMPS.

L. The letter referred to in particular K enclosed a copy of a letter dated 12 June 2009 from Matthew Hannaford, of DMS Davlan which noted on the front page:

"Auction realise value: $60,000.00 (Sixty thousand dollars only)

Fair market value $60,000.00 (Sixty thousand dollars only)"

M. The letter from Mr Hannaford and valuation report referred to in particular L was unsigned ("valuation report version 3").

N. On 23 June 2009 Mr. Hannaford received a telephone call from Robert Scerri of Lumley Insurance. Mr Scerri advised that the report provided by the lawyer had the 'Auction realisable value' and the 'Fair Market value' both as $60,000. Mr. Hannaford

confirmed to Mr Scerri these were not the values appearing in his (Mr. Hannaford's) report as emailed and then sent as a hard copy to the lawyer.

0. By letter dated 1 July 2009 Turks Legal wrote to Mr Franks and advised that they act for Lumley insurance. The letter also stated;

"I note that my client previously offered to settle your client's claim on a "without prejudice" basis by payment in the sum of $49,665. Whilst I note that this offer was subsequently rejected by your clients by way of your letter dated 16 June 2009, please note that any and all offers made by Lumley General in relation to this claim are formally withdrawn.

Further, I note that the contents of your letter and the enclosed valuation report allegedly from Mr Matthew Hannaford of DMS Davlan dated 12 June 2009 purport that the "Auction realisation value" and "Fair market value" of the insured vehicle were in the sum of $60,000.00.

I also note the demands made on behalf of your client for payment by Lumley General to your client in the sum of $60,000.00 based upon the alleged conclusions of this report.

My client's enquiries confirm that the valuation report of DMS Davlan dated 12 June 2009 alleged to have been served with your letter of 76 June 2009 was not a true copy of the valuation report provided by Mr Hannaford of DMS Davlan to your office in response to your request for a valuation report on the insured vehicle."

P. By letter on 2 July 2009 the lawyer wrote to Turks Legal and stated that neither his client nor he amended or changed the DMS Davlan report dated 12 June 2009.

Q. By facsimile dated 2 July 2009 to the lawyer, Lumley General Insurance, cancelled all of the insurance policies held by the lawyer's client.

R. On 13 July 2009 the lawyer wrote to his client concerning the commencement of litigation against the insurance company.

S. On 7 August 2009, following a staff meeting, Mr Slater confronted the lawyer about the altered valuation, at which time the lawyer said words to the effect "Yes I changed it".

T. When asked why, the lawyer responded "I felt like it" .

U. The lawyer further admitted that it had been worrying him, and that there was no collusion with the client.

V. The lawyer apologised in terms to the following effect: "I'm

sorry for altering the document''.

W. The lawyer's employment was immediately terminated, to which the lawyer responded in terms to the following effect: "I would have done the same thing in your position" .

X. A typed file note dated 7 August 2009 records the conversation between the lawyer and Mr. Slater in which the admissions (noted at particulars S to W above) were made by the lawyer.

Y. On 17 August 2009 Mr. Slater wrote to both the client and Turks Legal. Both letters stated that the lawyer was no longer in the employ of the firm and the firm will not continue to represent the client. The client was advised to obtain independent legal advice.

Z. By letter dated 25 August 2009 Mr. Slater wrote to the client. The letter noted that the firm no longer acts for the Hutchins.

AA. At the request of Mr. Slater, a Trust Account investigation was undertaken by Mr Ronald Dunlop, which resulted in a report dated 3 November 2009.

BB. During the course of the investigation, the lawyer was interviewed by Mr Dunlop ("the interview"). The interview took place on Wednesday 14 October 2009.

CC. During the interview, the lawyer denied modifying the original values (see particular H) to the values appearing in particular L above. In doing so, the lawyer misled the investigator.

DD. During the interview, the lawyer also denied making the admissions referred to at particulars S to X above, and in the typed file note referred to at particular Y above. In doing so, the lawyer misled the investigator.

Relevant aspects of the evidence

30 In his affidavit, Mr Collins stated that the lawyer was admitted as a solicitor of the Supreme Court on 4 October 2002. When interviewed by Mr Dunlop, the Law Society's investigator, on 14 October 2009, the lawyer stated that he had been an employed solicitor with Slater & Elias Lawyers Pty Ltd (hereafter 'Slater & Elias') or its predecessor Slater and Elias between November 2004 and 14 August 2009.

31 Ground 1. Mr Matalani submitted to us that the documents annexed to Mr Dunlop's report, when considered in conjunction with the affidavits of Mr Hannaford, Mr Hutchin, Ms Abood and Mr Scerri and with certain admissions made by the lawyer when interviewed by Mr Dunlop, provided ample substantiation of the matters alleged in Ground 1 and the associated Particulars (1A to 1AA).

32 We agree with this contention. Many elements of the case brought against the lawyer are in fact established by the contemporaneous correspondence between the lawyer and these deponents, including in particular the two versions of DVS Davlan's valuation report (incorporating a letter by the valuer, Mr Hannaford, dated 12 June 2009) that are referred to respectively as 'version 1' in Particular H and 'version 3' in Particulars L and M.

33 Because the labelling of the latter version as 'version 3' is somewhat misleading, we will refer to the two versions (including Mr Hannaford's letter in each case) as Version 1 and Version 2 from now on.

34 The allegations of prime importance in this case are these (see Particulars H, K, L and O): (a) on 15 or 16 June 2009, the lawyer received Version 1 of the valuation report from DVS Davlan; (b) he thereupon created Version 2 by altering the valuation figures in Mr Hannaford's letter to $60,000; and (c) on 16 June 2009, he sent Version 2 to OAMPS, with an accompanying letter, in which he made demands, based on Version 2, for payment by Lumley General of $60,000 to his client Mr Hutchin.

35 Such allegations of deceptive and dishonest conduct on the part of a legal practitioner must be proved to our 'reasonable satisfaction', with proper account being taken of their 'seriousness', the 'inherent unlikelihood' of their occurrence and the 'gravity of the consequences' (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 per Dixon J). In the present case, the lawyer's alleged behaviour in altering the valuation seems particularly 'unlikely' to us because there is nothing in the evidence to suggest that he stood to gain from it or what otherwise might have been his motivation.

36 In concluding that this requirement stemming from Briginshaw is satisfied, we have had regard particularly to certain aspects of the evidence, which are outlined in the ensuing eight paragraphs.

37 Mr Hannaford stated in his affidavit that he caused Version 1 to be sent by email to the lawyer on 12 June 2009, that Version 2 (of which he subsequently received a copy from Mr Scerri of Lumley Insurance) was not authored by him and was not the version that he sent on 12 June, and that he only ever provided one valuation report on Mr Hutchin's truck to Slater & Elias. In providing answers on 25 June 2009 to a number of questions put to him in an email from Mr Scerri, he indicated that on 19 June 2009 he had sent a hard copy of Version 1 to the lawyer.

38 The lawyer's secretary, Ms Abood, confirmed the contents of Particulars G, H and J in her affidavit, adding that the reason why it was not until Monday 15 June 2009 that she forwarded Version 1 by email to the lawyer and printed it out for him was that she was not in her office on 12 June 2009.

39 There is no evidence to suggest that any such person other than the lawyer might have altered the valuation figures or indeed would have any opportunity to do so. In order to avoid easy detection, any such person would have had to gain access, on 15 and/or 16 June 2009, to both the email message sent by Ms Abood to the lawyer and the copy that she printed out for him.

40 In the course of his interview with Mr Dunlop, the lawyer confirmed that he sent the correspondence described in Particulars K, L and M to OAMPS, that he both prepared and signed on behalf of Slater & Elias the letter dated 16 June 2009 and that this letter included a demand based upon the alleged conclusions of Version 2 that Lumley General should pay the sum of $60,000.00 to Mr Hutchin (see Particular O).

41 In a statement given to Mr Dunlop for the purposes of his investigation, Mr Hutchin categorically denied having asked the lawyer to alter any valuation of his truck and stated that it was not until late August 2009 that he first saw Version 1, knew the name of the valuer or knew that figures as low as $30,000 and $40,000 had been included in the valuer's report.

42 In his letter to Turks Legal dated 2 July 2009 (see Particular P), the lawyer stated that he had been instructed by Mr Hutchin to commence proceedings against Lumley General 'without further delay'. In the course of his interview by Mr Dunlop, however, he said that he 'hadn't got instructions', but was 'anticipating them'.

43 The lawyer admitted altering the valuations when asked about them by Mr Rodney Slater on 7 August 2009 (see Particulars S to W). Mr Slater, who was the sole principal and a director of Slater & Elias, swore an affidavit in which he set out the contents of this conversation. Mr Lauren O'Brien, who was also a director of Slater & Elias, was present at this conversation, and in his affidavit he confirmed Mr Slater's account of what was said. The contemporaneous file note referred to in Particular X was compiled by Mr Slater and Mr O'Brien together.

44 Finally, the lawyer did not appear in these proceedings, other than at the first directions hearing, and did not dispute the allegations made with regard to Ground 1 by filing either a Reply or any evidentiary material. Relying on dicta of Tobias JA in NSW Bar Association v Meakes [2006] NSWCA 340 at [70], Mr Matalani submitted that for this reason we should infer, pursuant to Jones v Dunkel (1959) 101 CLR 298, that any evidence furnished by him would not have assisted his case and we should more readily accept the evidence tendered by the Law Society. We agree in general terms with this submission.

45 Ground 2 . The specific statements of the lawyer providing the foundation for Ground 2 - which is that he 'misled an investigator' - are outlined in Particulars CC and DD.

46 The report annexed to Mr Dunlop's affidavit contains a description of the circumstances in which he interviewed the lawyer on 14 October 2009. In this description, it is stated that the interview was recorded. The report also sets out the answers given by the lawyer to questions put by Mr Dunlop. These include answers in which the lawyer denied modifying the values for Mr Hutchin's truck contained in Version 1 of the valuation and also denied that he had admitted such conduct when interviewed by Mr Slater.

47 There is nothing in the evidence to suggest that these denials were not made as recorded in Mr Dunlop's report.

48 Our conclusion that Ground 1 has been established necessarily implies that in making these denials the lawyer was not telling the truth. We accordingly find that the allegation made in Ground 2 is proved to the appropriate standard.

The nature of the lawyer's conduct

49 We have no hesitation in accepting Mr Matalani's submission that the conduct alleged and particularised in the Application, which we have found to be established by the evidence, amounts to professional misconduct, both at common law and under the LP Act. We reach this conclusion even though, as far as we can tell, the lawyer did not stand to benefit at all from what he did.

50 His conduct would be 'reasonably regarded as disgraceful or dishonourable' by the lawyer's 'professional brethren of good repute and competency', to quote from the well-known definition of common law misconduct in Allinson v General Council of Medical Education and Registration [1894] 1 KB 750 at 763. To use the phraseology of Rich J in the High Court in Kennedy v Council of the Incorporated Law Institute of New South Wales , (Unreported; noted in (1939) 13 ALJ 563), it 'amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty in relating to the courts, his client or the public'.

51 In addition, this conduct fell within the provision in section 497(1)(b) of the LP Act that professional misconduct includes 'conduct of an Australian legal practitioner whether occurring in connection with the practice of law or 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 engage in legal practice'.

52 Additional provisions supporting this conclusion are (a) section 498(1)(a) of the LP Act, whereby any breach of the Act or of the Solicitors Rules are declared to be 'capable of being professional misconduct or unsatisfactory professional conduct'; (b) Rules 34.1 and 34.2 of the Solicitors Rules, which state that a practitioner must not, in communicating with another person on behalf of a client, 'represent to that person that anything is true which the practitioner knows, or reasonably believes, is untrue' or 'make any statement that is calculated to mislead... the other person...'; and (c) section 674 of the LP Act, under which it is an offence to mislead an investigator without reasonable excuse.

The order or orders that we should make

53 We accept also Mr Matalani's submission that we should make the order sought by the Law Society by way of penalty. The conduct of the lawyer that we have held to be professional misconduct was deceptive and dishonest to a degree that precludes any finding that he was, at the time of this conduct, a fit and proper person to remain on the Roll. In addition, it had the consequence that a number of insurance policies held by his client with Lumley General were summarily cancelled (see Particular Q). He tendered no evidence and made no submission tending to displace the presumption of probable permanent unfitness to remain on the Roll.

54 In view of these matters, important considerations that underlie disciplinary proceedings such as these - namely, protection of the public, protection of the reputation of the legal profession and the objective of general deterrence - can lead to only one conclusion. This is that we should order that the name of the lawyer be removed from the local roll, under section 562(2)(a) of the LP Act.

55 Section 566(1) of this Act requires that, having made a finding of professional misconduct against the lawyer, we must make a costs order against him, unless 'exceptional circumstances' exist. There being no evidence of such circumstances, we make the costs order sought by the Law Society.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 26 May 2011