Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of New South Wales v Gray [2011] NSWADT 139
• Hearing dates: 13 May 2011
• Decision date: 13 May 2011
• Jurisdiction: Legal Services Division
• Before: M Riordan - Judicial Member; D Fairlie - Judicial Member; R Fitzgerald - Non Judicial Member

Decision

1. The Respondent is guilty of professional misconduct.

2. The Respondent's name be removed form the Local Roll in accordance with Section 562(2)(a) of the LPA 2004.

3. The Respondent is to pay the Applicant's costs of and incidental to these proceedings, as agreed or assessed.

• Catchwords: Disciplinary Application - solicitor - no appearance by Solicitor - misappropriation - wilful breach of s61 LPA 1987 - wilful breach of s255 of LPA 2004 - failure to account - failure to disclose costs pursuant to s175 LPA 1987 & s177 LPA 1987 & S309 LPA 2004 - falsifying trust ledger - misleading conduct - falsifying distribution statement - breach of s254 LPA 2004 - Causing deficiency in trust account
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Administrative Decisions Tribunal Rules 1998; Legal Profession Act 1987; Legal Profession Act 2004
• Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 KB 750; Kennedy v Council of the Incorporated Law Institute of New South Wales, (Unreported; noted in (1939) 13 ALJ 563); Council of the Law Society of New South Wales v O'Donnell [2010] NSWADT 130; Law Society of New South Wales v Shenker [1999] NSWADT 37; Law Society of New South Wales v Bannister (1983) 4 LPDR 24; Law Society of New South Wales v Walsh (unreported, December 1997); Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 at 364; Ex Parte Macaulay (1930) 30 SR NSW 193; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Dupal v Law Society of New South Wales (Unreported, 26 April 1990)
• Category: Principal judgment
• Parties: Applicant - Council of the Law Society of New South Wales; Respondent - Roger Winchester Gray
• Representation: Mr A Matalani - Applicant; No Appearance - Respondent; Ms L Muston - Office of the Legal Services Commissioner
• File Number(s): 102019

REasons for decision

Introduction

1 On 3 August 2010 the Council of the Law Society of New South Wales ("the Law Society") filed an Application under the Legal Profession Act 2004 ("the LPA 2004") alleging that the Respondent, Roger Winchester Gray ("the Solicitor") was guilty of professional misconduct on 11 Grounds. These were:

(1) Misappropriation;

(2) Wilful breach of section 61 of the Legal Profession Act 1987 ("the LPA 1987");

(3) Wilful breach of Section 255 of the LPA 2004;

(4) Failure to account;

(5) Failure to disclose costs pursuant to the provisions of sections 175 and 177 of the LPA 1987;

(6) Falsifying trust ledger;

(7) Misleading conduct by providing false information concerning the practitioner's dealings with trust monies;

(8) Falsifying distribution statement;

(9) Failure to disclose costs pursuant to the provisions of Section 309 of the LPA 2004;

(10) Breach of section 254 of the LPA 2004; and

(11) Causing deficiency in trust account.

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

3 Also on 3 August 2010 the Law Society filed Affidavits of Raymond John Collins sworn 28 July 2010; Jean Sayer sworn 16 March 2010; Garry Terrence Napper sworn 21 January 2010; Noel Bruce Napper sworn 12 January 2010; Margaret Anne Jacobsen sworn 8 January 2010; Steven John Spencer sworn 19 January 2010; Vicki Joy Paull sworn 4 January 2010; Wendy Joyce Hanington sworn 28 January 2010; and Paul Hanington sworn 28 January 2010.

4 The Solicitor did not file a Reply or any evidence and he did not appear at the hearing on 13 May 2011.

The steps taken to notify the Solicitor of the Law Society's case against him and of the date of the hearing

5 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..."

6 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."

7 Mr Matalani tendered an Affidavit of Service sworn by Matthew Ellsmore on 14 October 2010, as well as a letter from the Solicitor to Mr A Matalani dated 15 November 2010 and a bundle of emails and correspondence passing between the Law Society and the Solicitor after the Application was filed. He submitted that this evidence proved that the Law Society had complied with the Rules relating to cases when there was no appearance by a Respondent to a disciplinary application filed under the LPA 2004.

8 In any event, on 28 March 2011 the Solicitor signed an Instrument of Consent, to which a Statement of Agreed Facts was annexed. This was executed on behalf of the Law Society and the Legal Services Commissioner and was filed with the Tribunal.

9 We note that the Solicitor consented to the removal of his name from the roll, but not to the making of a costs order against him. Further, in an email to Mr Matalani dated 29 March 2011 he stated:

"I have signed and posted the "agreed facts" to you today, unaltered. I do so, on the basis that my agreement as to those facts and consent associated with them is for the purpose of these proceedings only.

I reiterare (sic), that I do not wish to be a lawyer; that I do not consider myself a fit and proper person to be a lawyer within the requirements specified and that for the purpose of bringing these proceedings to a practical conclusion, I would join in the application if necessary"

10 We note that Mr Matalani replied to the Solicitor by letter dated 8 April 2011, serving a sealed copy of the Instrument of Consent and advising him of the hearing date. He stated (in part):

"If you wish to obtain independent legal advice in relation to any matter, you should do so prior to this date."

11 On 9 May 2011 the Solicitor sent an email to Mr Matalani, in which he stated:

"... I acknowledge receipt of your email of the 6 th April 2011, advising particulars of the hearing date.

I note that consent orders should be made as per the document signed.

I confirm that I will not be attending. In advising this, I do not resile from the magnitude and effect of the orders and again express my regret as to the situation that precipitated these orders.

In respect of costs, I note that you will seek costs. I oppose that application, for no other reason than my financial inability to be able to pay out any such order. The court, no doubt, will make its own determination as to costs.

I will provide you, and the court a 1 page document, describing my present position, financial and personal, which in the absence of objection should allow consideration of my position. It will be basic and factual.

Again, my opposition to a costs order is only as to my ability to satisfy such an order."

12 However, the Solicitor did not provide any such evidence to the Tribunal.

13 Mr Matalani and Ms Muston submitted that the Tribunal should hear and determine the matter in the Solicitor's absence.

14 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 agreed that it was appropriate to proceed in the Solicitor's absence as we were satisfied that the provisions of Rules 25, 26, 27 and 29 were fully satisfied.

The matters alleged in the Application

15 As previously indicated, the Grounds stated in the Application were that the Solicitor was guilty of (1) Misappropriation; (2) Wilful breach of section 61 of the Legal Profession Act 1987 ("the LPA 1987"); (3) Wilful breach of Section 255 of the LPA 2004; (4) Failure to account; (5) Failure to disclose costs pursuant to the provisions of sections 175 and 177 of the LPA 1987; (6) Falsifying trust ledger; (7) Misleading conduct by providing false information concerning the practitioner's dealings with trust monies; (8) Falsifying distribution statement; (9) Failure to disclose costs pursuant to the provisions of Section 309 of the LPA 2004; (10) Breach of section 254 of the LPA 2004; and (11) Causing deficiency in trust account.

16 The Statement of Agreed Facts annexed to the Instrument of Consent are as follows:

A: Estate Kay Louise Knowles - affidavit from Executrix receive d

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

- Failure to disclose costs pursuant to the provisions of Sections 175 and 177 of the Legal Profession Act, 1987

1. The solicitor acted for the Executrix of the Estate of the Late Kay Louise Knowles ("the deceased") who died on 26 June 2003.

2. The beneficiaries of the deceased's Estate which had an estimated value of nearly $1.3 million were her two children.

3. On 4 July 2003 the solicitor wrote to the Executrix (the deceased's sister) advising that his professional costs for acting on the application for Grant of Probate would be $3,000.00 [excluding GST]. The letter also stated that he would advise as to his costs on realisation and distribution of Assets. The solicitor did not disclose his costs nor did he provide an estimate in relation to his costs for the realisation and distribution of assets.

4. On 8 August 2003 the solicitor received from the Newcastle Permanent Building Society the sum of $5,951.18 which he deposited to his trust account. On the same day he drew a cheque for $1,279.00 being the filing fee payable to the Supreme Court for the Probate Summons.

5. On 11 August 2003 the solicitor prepared a short form Bill of Costs in the sum of $4,400.00 for acting on the Application for Probate without giving any further details.

6. On 11 August 2003 although the Bill had not been sent to the Executrix and without her authority the solicitor transferred the sum of $4,400.00 from his trust account to his Office account in payment of the Bill.

7. On 11 August 2003 the Bill in the sum of $4,400.00 was reversed and replaced by a more detailed Bill of Costs dated 15 August 2003 in the sum of $5,031.31 being made up of Costs ($4,400.00) and Disbursements ($631.31).

8. On 18 August 2003 Probate was granted to the Executrix.

9. Thereafter without the authority of the Executrix the solicitor drew from his Trust Account Costs & Disbursements as follows.

Date Drawn Date of Bill Profit Cost Hours Total Amount

GST incl

20.8.03 20.8.03 631.31

28.8.03 28.8.03 4,400.00 13.3 4,400.00

4.9.03 4.9.03 3,300.00 10 3,300.00

25.9.03 25.9.03 3,300.00 10 3,313.20

12.11.04 11.11.04 Disbursements only 154.72

28.1.05 28.1.05 3,300.00 10 3,382.50

4.5.07 2.5.07 3,135.00 9.5 6162.50

$21,835.00 66 hrs $22,744.23

10. On 16 November 2004 the solicitor forwarded a letter to the Executrix and enclosed the five Bills that he had issued to that date in the total sum of $16,199.23 namely those dated 15 August 2003, 28 August 2003, 4 & 25 September 2003 and 11 November 2004.

11. The Bills dated 28 January 2005 and 4 May 2007 were not seen by the Executrix until shown to her by the Receiver nor did she authorise their payment.

12. The Bill of 4 May 2007 [$3,162.50] was the only Bill showing details of the work done by the solicitor. When this sum was transferred from the Trust Account the balance then held was $2,437.77 which stood at the time the Receiver was appointed.

B: Shayne Austerberry

1. The solicitor was instructed to act for Mr Shayne Austerberry in relation to the Dissolution of the business partnership of Shayne Austerberry and Trevor Grey.

2. The proceeds of the sale of land and of some plant and machinery were received by the solicitor and deposited to his trust account to be used for the payment of income tax and other indebtedness of the partnership and the balance to be paid to the partners.

3. The transactions were recorded in two trust ledger accounts as follows:-

1. Mudberry Pty Limited - Sale to Newcastle Investments Matter No. 009693.

2. Austerberry Excavations Pty Limited - Re dissolution Matter No. 009673.

3. Messrs. Austerberry and Grey had separate accountants acting for them.

4. On 22 May 2007 the solicitor forwarded to the Solicitors acting for Trevor Grey a copy of the trust ledger relating to the sale matter No. 009693 [Mudberry Pty Limited]. The same document was forwarded to the parties' respective accountants.

5. As at 22 May 2007 while the balance shown in the printout was shown as $121,162.46 the true position as at that date was that the balance held in the solicitor's trust account was $13,040.14 and such balance remained at the date of the receivership.

6. On 22 May 2007 the solicitor forwarded a letter to one of the accountants which said in part:-

"In the Austerberry Excavations account, there is a balance remaining of forty thousand, six hundred and thirty five dollars and seventy cents ($40,635.70)."

Such statement was incorrect as the balance in the account at that date was and still is $200.00.

7. As at 22 May 2007 payments totalling $103,118.60 had been made, but not disclosed, from the Trust Account [Matter No.009693] as follows:-

27.5.04 Transferred to trust ledger account of Mudix P/L 5,000.00

23.9.04 Dewheath Pty Limited - Loan 80,000.00

28.1.05 Costs & Disbursements 5,503.30

27.8.06 Transferred to trust ledger account of Mudix P/L 4,467.60

21.2.07 Transferred to trust ledger account of Mudix P/L 5,947.00

8.3.07 Transferred to trust ledger account of Mudix P/L 2,200.00

$103,118.60

8. The payment on 23 September 2004 of $80,000.00 was not in any way connected with the affairs of Shayne Austerberry. Such payment represents a misappropriation of trust moneys held by the solicitor for his clients.

9. Between 8 March 2004 and 8 March 2007 the solicitor transferred from his Trust Account to his Office Account the sum of $75,935.35 in payment of Tax Invoices raised by him.

10. None of the Tax Invoices were sent by the solicitor to either Mr Austerberry or Trevor Grey nor was a Costs Agreement entered into. They were not aware until advised by the Receiver that amounts totalling $75,935.35 had been drawn by the solicitor from the proceeds of sale by transfer to the Office Account.

11. On 26 September 2007 the solicitor sent a Memo to the Receiver which said in part:-

"1. Dewheath Pty Limited: This payment represented a refund of fees charged against Dewheath by me.... The monies were incorrectly paid from the Trust A/c of Mudberry Pty Limited and Austerberry Excavations Pty Limited. The sum of $80,000.00 was repaid on my behalf on the 16 th August and I attach a copy of my memo to you of that date."

The solicitor did not disclose his costs nor did he provide an estimate as to his costs.

C: Estate Norman Corin

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

- Failure to disclose costs pursuant to the provisions of Sections 175 and 177 of the Legal Profession Act, 1987

1. On 11 June 2004 Probate of the Will of Norman Corin ("the deceased") was granted to John Thomas James [the Executor] after the solicitor was instructed to obtain such Grant. The Salvation Army (NSW) Property Trust was the sole beneficiary of the Estate.

2. On 16 October 2002 Probate of the Will of the deceased's sister of which he was the sole beneficiary was granted. Messrs Bale Boshev Solicitors acted for the Executrix.

3. On 20 March 2003 Messrs Bale Boshev ("the firm") forwarded a letter to the solicitor enclosing, inter alia, a cheque for $51,870.16 in favour of the deceased. On 16 April 2003 the firm sent a further cheque in the sum of $305.04 in favour of the deceased.

4. On 19 March 2004 the firm wrote to the solicitor advising that the two cheques forwarded almost one year earlier had not been presented. The firm enclosed a replacement cheque for $52,256.46 and requested that the unpresented cheques be returned. The solicitor did this on 22 March 2004

5. On 23 March 2004 the solicitor deposited to his trust account the cheque for $52,256.46 received from the firm being the day after the deceased died.

6. On 1 April 2004 the solicitor transferred from his Trust Account Costs in the sum of $11,056.10. Such Costs were not disclosed in the Application for a grant of Probate.

7. On 29 April 2004 the solicitor transferred from his Trust Account Costs in the sum of $11,139.92. Such Costs were not disclosed in the Application for a grant of Probate.

8. On 4 June 2004 the Application for a Grant of Probate was filed.

9. The solicitor did not write to the Executor giving an estimate as to his costs nor was a Costs Agreement entered into.

10. The solicitor's file gives no indication that the Bills of Costs dated 1 & 29 April 2004 were forwarded to the Executor or that he authorised their payment.

11. On 13 October 2004 the sale of the property owned by the deceased at Fishing Point was settled and the proceeds of sale deposited by the solicitor into his Trust Account. Soon after the balance of the deposit was received and similarly deposited. Costs were billed and drawn by the solicitor for acting on the conveyance in the sum of $3,374.00 comprised of professional costs in the sum of $2,750.00.

12. On 17 September 2004 and 22 April 2005 the solicitor transferred from his Trust Account for disbursements the sums of $176.20 and $348.44 respectively.

13. On 21 October 2004 a first distribution was made to The Salvation Army and the balance then remaining in the Trust Account of $50,000.01 was deposited to an account kept for the Estate with the Newcastle Permanent Building Society.

14. On 12 January 2007 the solicitor withdrew $10,000.00 from the Newcastle Permanent Building Society and deposited it in his trust account.

15. On 15 January 2007 the solicitor transferred from his Trust Account the sum of $9,244.40 to meet his Bill of Costs dated 12 January 2007 for that sum. The Executor was not made aware of this Bill.

16. On 2 May 2007 the solicitor made a second and final payment to The Salvation Army from the Newcastle Permanent Building Society and deposited the balance from the account in the sum of $4,609.47 to his trust account.

17. On 3 May 2007 the solicitor transferred from his Trust Account the sum of $4,609.71 to meet his Bill of Costs dated that day in the sum of $4,950.00. The Executor was not made aware of this Bill.

18. The Receiver obtained an opinion from a costs consultant which detailed the time spent by the solicitor for acting in the matter. Allowing the solicitor's normal hourly rate of $300.00 plus GST the Receiver calculated the amount due to the solicitor for profit costs as being $16,225.00.

19. The total amount charged by the solicitor for Costs plus GST in the four Estate Bills aforementioned [$36,190] together with the Sale Bill [$2,750.00] is $38,940.00. In addition the solicitor charged the deceased Costs plus GST of $302.50 for acting with respect to his sister's estate prior to his death making the total charged $39,242.50.

20. Accordingly the difference between the amount transferred of $39,242.50 and the amount calculated by the Receiver of $16,225.00 is $23,017.50.

21. There has been a failure to account by the solicitor of the funds of the Estate transferred from the Trust Account to the Office Account of $23,017.50.

D: Peter and Mathew Grieve

- Misappropriation

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

1. The solicitor received instructions from Peter Morey Grieve and his son Matthew Michael Grieve ("the vendors") to act on the sale of their property at Tuggerah to AIPT Pty Limited for a consideration of $605,000.00.

2. On 28 May 2005 Contracts were entered into and a part deposit of $30,000.00 paid.

3. On 30 November 2005 a Notice to Terminate was served by the vendors.

4. A revised contract was entered into pursuant to which the part deposit of $30,000.00 held by the Agent was to be released to the Vendors.

5. On 9 December 2005 the deposit was received by the solicitor and deposited to his Trust Account [Matter No.009653]. On the same day arrears of mortgage were paid to the mortgagee in the sum of $10,245.99. AIPT Pty Limited could not settle the purchase.

6. On 17 May 2006 the property was sold to Hoglom Superannuation Fund Pty Limited ("Hoglom") for a consideration of $505,000.00.

7. On 17 February 2006 the solicitor filed a Statement of Claim for damages against AIPT Pty Limited in the Supreme Court on behalf of the vendors.

8. On 7 July 2006 the sale to Hoglom settled and thereafter the net proceeds of sale together with the balance of the deposit less commission totalling $185,898.97 was received by the solicitor and deposited to his trust account, [Matter No. 010573].

9. On 20 July 2006 the balance in the trust account of $139,300.31 was deposited to an account kept by the solicitor with the Newcastle Permanent Building Society as trustee for the vendors.

10. The solicitor did not enter into a costs agreement with the vendors.

11. On 8 December 2006, by consent, an Order for Judgment was obtained by the vendors with respect to their claim against AIPT Pty Limited, [Matter No.010890].

12. Between 9 December 2005 and 28 March 2007 the solicitor transferred from his Trust Account to his Office Account the sum of $82,443.13 for Costs & Disbursements. Such amount related to each matter as follows.-

Matter No. 09653 52,345.79

Matter No. 10890 26,672.04

Matter No. 10573 3,425.30

$82,443.13

The vendors did not authorise payment of the sum of $82,443.13.

13. The first Bill dated 9 December 2005 showed as Disbursements the sum of $659.75 comprising Stamp Duty ($551.00) and Caveat fees ($105.89) which were not paid.

13A. Without the authority of the vendors, between 30 October 2006 and 15 March 2007 the solicitor withdrew a total sum of $47,000.00 from the Account kept with the Newcastle Permanent Building Society. This amount covered some transfers from the Trust Account to the Office Account listed in paragraph 13 above.

14. On 21 June 2006 the solicitor issued Invoice No. 16542 comprising profit costs of $1,200.00 plus GST.

15. In the Bill dated 21 June 2006 fees due to Mr Alun Hill of Counsel were estimated at $16,500.00. In a later Bill dated 5 October 2006 fees due to Mr Hill were shown as $1,750.00. The true position was that fees due to Mr Hill were paid by cheque drawn on the Trust Account on 8 March 2007 for $2,640.00 and by a Newcastle Permanent Building Society cheque for $10,780.00 using the vendor's funds on 3 April 2007.

16. On 5 October 2006 the solicitor issued Invoice No. 16722 comprising profit costs of $2,000.00 plus GST. This bill is a duplicate in respect of the professional costs for work previously carried out.

17. On 30 October 2006 the solicitor issued Invoice No. 16758 comprising profit costs of $5,400.00 plus GST. This Bill is said to relate to work carried out post 23 May 2006 being the same period as covered by earlier Bills that issued.

18. On 30 October 2006 the solicitor issued Invoice No. 16850 comprising profit costs of $1,200.00 plus GST.

19. On 15 May 2007 the solicitor withdrew $20,000.00 from the Account kept with the Newcastle Permanent Building Society by way of cheque issued to Torrance Investments Pty Limited. Such withdrawal was a misappropriation of trust moneys held by the solicitor for the vendors.

20. There has been a failure to account by the solicitor to the vendors of $50,348.75 made up as follows:

Amount misappropriated 20,000.00 39,568.75

Estimated fees due to Alun Hill not paid 16,500.00

Estimated fees due to Alun Hill not paid 1,750.00

Amount included for Stamp Duty etc (not paid) 659.75

Supreme Court Filing fee not paid 659.00

Profit costs included in bills by way of duplication

21.6.06 Invoice No. 16542 1,320.00

5.10.06 Invoice 16722 2,200.00

30.10.06 Invoice No. 16758 5,940.00

18.12.06 Invoice 16850 1,320.00

10,780.00

$50,348.75

Further particulars with respect to payment to Torrance Investments P/L

21. Enquiries by the Receiver revealed that the payment to Torrance Investments Pty Limited, with respect to its consent for the Grant of an Easement, was on behalf of the solicitor's client Caldekid Pty Limited ("Caldekid").

22. On 26 September 2007, in response to a query from Receiver as to the nature of the payment of $20,000.00, the solicitor forwarded a Memo which said in part:-

"This payment was made on behalf of compensation monies payable in the matter of Caldekid Pty Limited. The $20,000.00 should have been paid by me personally, but was inappropriately drawn from my trust account to the account of Grieve. This amount was repaid on my account on 16 August, 2007 and I enclose a copy of my memo to you."

23. On 20 December 2003 following negotiations between Caldekid and the adjoining owner [Ms Lin Shi] the owners of Caldekid paid the solicitor the sum of $12,330.00.

24. In December 2004 although receiving the consideration due to her [$10,000] Ms Shi sold her property to Torrance Investments Pty Limited without her Solicitors returning to the solicitor the Agreement signed by her.

25. In March 2005 Torrance Investments Pty Limited discovered that an Easement had not been registered. Thereafter the solicitor commenced proceedings against Ms Lin Shi and her Solicitors on behalf of Caldekid.

26. The claim against the Solicitors for Ms Lin Shi settled for the sum of $20,000.00 together with a refund of Costs previously paid to them [$570.00].

27. On 20 April 2005 the solicitor received from the Solicitors for Ms Lin Shi the refund due of $570.00 which was deposited to his Office Account. On that day he raised a Bill of Costs in the sum of $1,307.03.

28. On 1 May 2007 the solicitor received from the Solicitors for Ms Lin Shi a cheque in part settlement in the amount of $5,000.00 which he deposited to his Trust Account. This covered an electronic transfer that day of $4,166.83 to the Office Account.

29. On 7 June 2007 the solicitor received a cheque in final settlement in the amount of $15,000.00 which he deposited to his Trust Account.

30. On 19 June 2007 the solicitor transferred the sum of $15,833.17 electronically to his Office Account being the balance in the Trust Account of Caldekid. On that day he raised a Tax Invoice in the amount of $17,600.00.

31. Paragraph 19 above is repeated

E: Estate Thelma Isabel Brindley - Affidavit received

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

- Failure to disclose costs pursuant to the provisions of Sections 175 and 177 of the Legal Profession Act, 1987

1. On 7 April 2004 Probate of the Will of Thelma Isabel Brindley ("the deceased") was granted to her daughter June Thelma Brindley [the surviving Executrix] after the solicitor was instructed to obtain such Grant.

2. The deceased left her Estate to her Executrix and the sons of her daughter who did not survive her. The deceased had two accounts with the Office of the Protective Commissioner in trust for her daughter Cheryl Marie Brindley under Section 48(1) of the Protected Estates Act. She had a further account in her own name.

3. On 4 May 2004 the solicitor received from the Office of the Protective Commissioner the sum of $19,676.35, which he deposited to his Trust Account.

4. On 4 May 2004 the solicitor received from the Office of the Protective Commissioner the sum of $51,980.15, which was deposited into a controlled money account kept with the Newcastle Permanent Building Society for the Trust for Cheryl Marie Brindley (the controlled money account).

5. On 9 June 2004 the solicitor received from the Office of the Protective Commissioner the sum of $61,613.46 for the Trust for Cheryl Marie Brindley, which amount was deposited into the controlled money account.

6. Aside from paying funeral expenses of $671.00 on 9 June 2004, without the authority of the Executrix, the solicitor transferred from the Trust Account to the Office Account the following amounts described as for costs and disbursements as follows.-

Bill Date Date transferred Profit Cost (GST incl)

14.4.04 5.5.04 5,500.00 6,732.86

3.5.04 13.5.04 5,500.00 5,530.80

12.11.04 12.11.04 2,200.00 2,200.00

11.1.07 12.1.07 6,600.00 6,733.10

15.1.07 15.1.07 2,750.00 2,750.00

2.5.07 3.5.07 2,310.00 2,310.00

$24,860.00 $26,256.76

7. On 7 December 2004 the Executrix granted a Power of Attorney to her nephew Stephen Spencer ("Mr Spencer"), a beneficiary of the Estate.

8.On 7 April 2006 Mr Spencer signed an Acceptance pursuant to Section 19 of the Power of Attorney Act.

9. On 3 May 2007 the solicitor withdrew $5,000.00 from the controlled moneys account and deposited it to his Trust Account which then held $516.90. Such withdrawal was without the authority of the Executrix.

10. On 3 May 2007 the solicitor transferred from his trust account to his office account the sum of $2,310.00 in payment of his Bill of Costs dated 2 May 2007, which had not been forwarded to the Executrix.

11. The solicitor did not disclose his costs nor did he provide an estimate as to his costs. His file contains no evidence that Bills of Costs were ever forwarded to the Executrix nor has a Statement relating to trust moneys received and disbursed ever been prepared or provided to the Executrix or any other party.

12. The Receiver obtained an opinion from a costs consultant which detailed the time spent by the solicitor for acting in the matter. Allowing the solicitor's normal hourly rate of $300.00 plus GST the Receiver calculated the amount due to the solicitor for profit costs as being $10,843.25. Accordingly the difference between the amount transferred of $24,860.00 and the amount of $10,843.25 is $14,016.75

13. There has been a failure to account by the solicitor of the funds of the Estate transferred from the Trust Account to the Office Account of $14,016.75.

F: Estate Jane Reid Harle - Affidavit from co- executor received

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

- Failure to disclose costs pursuant to the provisions of Sections 175 and 177 of the Legal Profession Act, 1987

1. On 8 December 2003 Probate of the Will of Jane Reid Harle ("the deceased") was granted to the Executors named in the Will namely her friend Noel Bruce Noble and the solicitor ("the Executors") after he was instructed to obtain such a Grant. The major beneficiary of the Estate was the Mater Misericordiae Hospital at Newcastle.

2. By 3 February 2004 all of the Assets of the Estate were realised and held in the solicitor's Trust Account.

Date of Bill Date transferred Profit Cost (GST incl)

3.12.03 4.12.03 (Part)

18.12.03 (Bal) 1,313.18

18.12.03 18.12.03 11,000.00 11,047.30

9.1.04 9.1.04 2,200.00 2,234.10

22.1.04 9.1.04 2,200.00 2,200.00

18.3.04 18.3.04 3,300.00 3,359.00

17.2.05 23.12.05 - Disb Only 186.12

23.12.05 23.2.05 3,300.00 3,300.00

12.1.07 12.1.07 9,900.00 9,980.30

2.5.07 3.5.07 4,785.00 4,785.00

42,185.00 43,905.40

3. On 24 November 2004 following receipt of a refund of Income Tax in the sum of $1,100.00 the total realised was $712,785.95.

4. The solicitor issued Tax Invoice totalling $43,905.40. Without authority, the solicitor transferred moneys from his Trust Account to his Office Account in relation to the Estate as follows.

5. None of the Tax Invoices totalling $43,905.40 were sent by the solicitor to his Co-Executor. The solicitor did not disclose his costs nor did he provide an estimate of costs to his Co-Executor.

6. The Receiver obtained and opinion from a costs consultant, which detailed the time spent by the solicitor for acting in the matter.

7. Allowing the solicitor's normal hourly rate of $300.00 plus GST the Receiver calculated the amount due to the solicitor for profit costs as being $10,748.87. Accordingly the difference between the amount transferred for Costs of $42,185.00 and the amount of $10,748.87 is $31,436.13.

8. There has been a failure to account by the solicitor of the funds of the Estate transferred from the Trust Account to the Office Account of $31,436.13.

G: Estate Lavender May Hanington - Affidavit received

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Failure to account

- Failure to disclose costs pursuant to the provisions of Sections 175 and 177 of the Legal Profession Act, 1987

- Falsifying distribution statement.

1. On 22 July 2002 pursuant to the Guardianship Act, 1987 Paul Hanington and Daphne Allan were appointed guardians of their mother Lavender May Hanington ("Mrs Hanington").

2. The only asset of Mrs Hanington was her property at Pelican ("the property").

3. On 2 August 2002 pursuant to a Trust Deed the property was transferred to Paul Hanington and Daphne Allan as tenants in common in equal shares.

4. On 7 March 2004 Mrs Hanington died. Pursuant to the will Paul Hanington and Daphne Allan were appointed Executors ("the Executors") and sole beneficiaries although Mrs Hanington had two step-children and an adopted son whose mother was one of the step-children.

5. On 5 April 2004 the solicitor issued a Bill to Paul Hanington and Daphne Allan in the sum of $715.00, which was subsequently paid.

6. On 2 July 2004 Paul Hanington and Daphne Allan sold the property for a consideration of $330,000.00. The solicitor charged and received costs and disbursements on the sale in the sum of $1,325.40.

7. On 29 March 2005 a Deed of Release was entered into between the Executors and one of the step children and her son as Claimants whereby the Claimants would be paid the sum of $46,050. Such payment was effected on the following day.

8. On 29 March 2005 Alun Hill of Counsel forwarded his Memorandum of Fees in the sum of $1,320, which remains outstanding.

9. The solicitor issued Tax Invoices and without authority, transferred moneys from his Trust Account to his Office Account as follows:-

Date transferred Date of Invoice Amount

2.7.04 2.7.04 1,840.30

18.8.04 9.8.04 5,616.60

27.8.04 27.8.04 5,500.00

11.11.04 12.11.04 3,329.70

17.12.04 17.12.04 5,500.00

28.1.05 28.1.05 3,300.00

$25,086.60

10. On 23 December 2005 the solicitor paid Daphne Allan the sum of $10,000.00. A similar payment was due to Paul Hanington but could not be paid as the balance then held in the Trust Account was $917.17.

11. On 18 January 2006 the distribution due to Paul Harlington was paid by the solicitor from the Office Account at the direction of Paul Hanington to Wendy Hanington.

12. On 28 March 2007 the solicitor forwarded a letter to the Executors, enclosing a Distribution Statement made up to 23 December 2005 showing a balance held in trust at that date of $16,003.77. The letter said in part:-

"He [Alun Hill] of Counsel has advised his fees at $3,000.00, inclusive of GST.

I have collated my fees for time spent in relation to the matter, from start to finish, having reduced it to the extent that I can but the total of costs, including Counsel's fees, amounts to $14,431.60.

I ATTACH my statements of account in that regard.

I ATTACH a Distribution Schedule, with annexures, which shows that after distribution made, on receipts, there is a balance of $16,003.17, available.

On my calculations there is a final balance available for distribution of $1,572.17."

13. The Account totalling $14,431.60 included the account dated 5 April 2004 in the sum of $715.00, which had been paid. It also included the account dated 9 August 2004 in the sum of $5,616.60 which had been transferred to the Office Account on 18 August 2004 and the amount said to be due to Mr Hill of Counsel namely $3,000.00.

14. The Distribution Statement was incorrect as there was a shortage in the Trust Account as at 23 December 2005 of $25,086.60 by reason of the non disclosure in the statement prepared by the solicitor of amounts transferred from the Trust Account to the Office Account for Costs and Disbursements as set out in paragraph 9 above.

16. On 15 May 2007 the solicitor made a final distribution to Daphne Allan of $786.09 from the balance remaining in the Trust Account. At the date of the Receivership the balance remaining in the Trust Account was $131.08.

17. On 16 May 2007 the solicitor paid Paul Hanington the sum of $786.09 by way of a cheque drawn on the Office Account.

18. On 6 June 2007 the solicitor refunded from his Office Account the sum of $715.00.

19. The Receiver obtained an opinion from a Costs Consultant which detailed the time spent by the solicitor for acting in the matter. Allowing the solicitor's normal hourly rate of $300.00 plus GST the Receiver calculated the amount due to the solicitor for profit costs as being $9,306.00. On this basis, accepting the assessment as representing the proper costs, the balance due to the Executors and Mr Hill is as follows:-

Bill dated 28.3.07 - 14,431.60

Less: duplicated bill - Payment refunded 715.00 13,716.00

Less: Costs & Disbursements as assessed (including

Fees due to A Hill of Counsel of $1,320.00) 9,306.00

Due to the clients $4,410.60

20. The Receiver calculates there is a shortfall of $5,599.52 as follows:-

Amounts drawn in excess of proper costs -

Due to clients 4,410.60

Costs due to Mr Alun Hill included in assessment 1320.00 5,730.60

Less: Balance in Trust Account 131.08

$5,599.52

H: Estate Margaret McDougal

- Misappropriation

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to disclose costs pursuant to the provisions of Section 309 of the Legal Profession Act, 2004

1. On 12 April 2006 the solicitor provided to the proposed Executors an estimate of his costs and disbursements totalling $4,965 which was made up of $3,000.00 for costs for obtaining a grant of probate, $500 for realisation and distribution and disbursements of $1,465 exclusive of GST.

2. On 19 May 2006 Probate of the Will of Margaret McDougal ("the deceased") was granted to two of the Executors named in the Will namely her son Duncan McDougal and one of her daughters ("the Executors") after the solicitor was instructed by them to obtain such a Grant. The beneficiaries of the Estate were the deceased's three children.

3. On 15 May 2006 the solicitor prepared a Bill of Costs & Disbursements in the sum of $5,814.90. The balance held in the Trust Account at that time namely $1397.62 was then transferred to the Office Account in part payment of this Bill.

4. On 2 June 2006 following receipt of the proceeds of the deceased's account with a Credit Union the balance of the Bill in the sum of $4,417.28 was paid.

5. On 28 August 2006 the solicitor issued a Bill of Costs in the sum of $3,334.10.

6. On 6 September 2006 without the authority of the Executors the solicitor transferred from his Trust Account to his Office Account the sum of $3,334.10. The Bill of Costs had not been rendered to the Executors prior to the said Transfer. Further, such Bill was disputed.

7. On 21 February 2007 the solicitor issued a Bill of Costs & Disbursements in the sum of $6,244.25 and on the same day without the authority of the Executors transferred from his Trust Account to his Office Account the sum of $6,244.25.

8. On 7 May 2007 the solicitor issued a Bill of Costs in the sum of $660.00 and on the same day without the authority of the Executors transferred from his Trust Account to his Office Account the sum of $660.00.

9. The solicitor did not disclose his costs nor did he provide an estimate to the Executors in relation to the costs set out in paragraphs 5, 6 and 7. The Executors were not aware that two further amounts were drawn from the Trust Account for Cost & Disbursements in February and May 2007.

I. Estate Alwyn Leslie Webb

- Misappropriation

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

1. On 8 May 2006 Probate of the Will of Alwyn Leslie Webb ("the deceased") was granted to the Executor named in the Will namely his son Peter John Webb ("the Executor") after the solicitor was instructed by him to obtain such a Grant. The beneficiaries of the Estate were three of the deceased's four children.

2. The sole Asset in the Estate was a sum held with the Office of the Protective Commissioner.

3. On 19 May 2006 the solicitor prepared a Bill of Costs & Disbursements in the sum of $4,155.80.

4. On 30 May 2006 the sum of $141,768.57 was received by the solicitor from the Office of the Protective Commissioner and deposited to his trust account.

5. On 31 May 2006 the solicitor transferred from his trust account to his office account the sum of $4,155.80.

6. On 27 July 2006 as one of the beneficiaries could not be located her share was deposited into a controlled money account kept by the solicitor with the Newcastle Permanent Building Society ("the Building Society account"). On 26 and 27 July 2006 the shares of the other two beneficiaries were paid to them.

7. On 17 August 2006 the solicitor withdrew from the Building Society account the sum of $151.47 being in payment of an advertising account, which he had overlooked.

8. On 1 May 2007 the solicitor prepared a Bill of Costs in the sum of $1,320.00.

9. On 4 May 2007 without the authority of the Executor, the solicitor withdrew from the Building Society account the sum of $2,000.00 and deposited it into his trust account. On the same day without the authority of the Executor the solicitor transferred to his Office account the sum of $1,320.00 in payment of the Bill referred to in the preceding paragraph.

10. On 16 July 2007 the solicitor wrote to Peter John Webb advising that he had ceased to practice and enclosing a final Bill of Costs.

11. Rather than being met from the Building Society account any further costs of the Estate should have been rendered and authorised by the Executor before the distributions made on 26th and 27th July 2006.

J: Estate Hazel Lenore Melbourne

- Misappropriation.

- Wilful breach of Section 255 of the Legal Profession Act, 2004.

- Failure to account.

- Failure to disclose costs pursuant to the provisions of Section 309 of the Legal Profession Act, 2004.

1. On 11 October 2006 the solicitor provided to the proposed Executrix an estimate of his costs and disbursements totalling $4,011.90 which was made up of $2,500.00 for costs of obtaining a grant of Probate, $500 for realisation and distribution and disbursements of $1,011.90 exclusive of GST.

2. On 30 October 2006 Probate of the Will of Hazel Lenore Melbourne ("the deceased") was granted to the Executrices named in the Will namely her daughters Mrs Dawn Lenore Beaven and Mrs Marie Foster John Webb ("the Executrices") after the solicitor was instructed by them to obtain such a Grant.

3. The Estate which was bequeathed equally to the Executrices comprised Real Estate together with a sum held with the Commonwealth Bank and a Term Deposit with the Newcastle Permanent Building Society.

4. On 7 November 2006 the solicitor prepared a Bill of Costs & Disbursements in the sum of $4,390.29 and forwarded it to one only of the Executrices.

5. On 15 November 2006 the solicitor withdrew from his Trust Account the sum of $4,390.29.

6. In December 2006 following discussions with the solicitor as to the effect on the pensions received by the Executrices it was agreed that a Deed of Family Arrangement be entered into whereby Mrs Foster would receive $10,000.00 and her remaining share would be shared equally by her children.

7. On 20 December 2006 the solicitor prepared a Bill of Costs & Disbursements in the sum of $1,350.70, which was not forwarded to the Executrices.

8. On 22 December 2006 without authority the solicitor withdrew from his Trust Account the sum of $1,350.70, which was transferred to his Office Account.

9. On 9 January 2007 the solicitor prepared a Bill of Costs & Disbursements in the sum of $1,714.90, which was not forwarded to the Executrices.

10. On 10 January 2007 without authority the solicitor withdrew from his Trust Account the sum of $1,714.90, which was transferred to his Office Account.

11. On 15 January 2007 the solicitor prepared a Bill of Costs & Disbursements in the sum of $1,980.00 which was not forwarded to the Executrices and on the same day without authority withdrew that amount from his Trust Account and transferred it to his Office Account.

12. On 21 February 2007 the solicitor prepared a Bill of Costs & Disbursements in the sum of $3,300.00 which was not forwarded to the Executrices and on the same day without authority withdrew that amount from his Trust Account and transferred it to his Office Account.

13. The solicitor did not disclose his costs nor did he provide an estimate to the Executrices in relation to the costs set out in paragraphs 7, 9, 1 and 12. Although the solicitor forwarded a Draft Distribution Statement to them with a letter dated 4 December 2006 which showed his costs of $4,390.29 no further Distribution Statements or form of Accounting was forwarded to them showing the Costs drawn by the Solicitor.

14. The Receiver obtained an opinion from a costs consultant, which detailed the time spent by the solicitor for acting in the matter. Allowing the solicitor's normal hourly rate of $300.00 plus GST the Receiver calculated the amount due to the solicitor for profit costs as being $6,451.50. Accordingly the difference between the amount transferred for Costs of $11,550.00 and the amount of $6,451.50 is $5,098.50.

15. There has been a failure to account by the solicitor of the funds of the Estate transferred from the Trust Account to the Office Account of $5,098.50.

K: Susanne Ransley

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Failure to account

1. The solicitor acted for Susanne Ransley ("Ms Ransley") the Executrix of the Will of her late father Sydney Edward Ransley ("Mr Ransley").

2. On 4 February 2002 Probate was granted to Ms Ransley the only asset of the Estate being the property at 25 Rawson Street, Swansea ("the property").

3. A claim was made by the widow of Mr Ransley under the Family Provision Act and such claim was successful.

4. Ms Ransley paid the solicitor's costs of $3,096.50 and $566.28 for obtaining a grant of Probate. Further she paid a Bill for Disbursements of $649.00 and $1,000.00 in part payment of a Bill in the Amount of $1,115.40 said to be in payment of fees for Counsel.

5. On 29 July 2003 Judgment was obtained in favour of the widow of Mr Ransley and on that day the solicitor rendered a Bill in the sum of $16,718.90. The Bill was not itemised and merely stated "To my Professional Costs in relation to this matter to date ".

6. On 27 November 2003 pursuant to a further Judgment costs on an indemnity basis were awarded to Ms Ransley. Thereafter the solicitor claimed for Ms Ransley the sum of $34,217.28 such sum including the amount paid by Ms Ransley for funeral expenses, a Valuation fee and Fire Insurance for the Property.

7. On 9 August 2004 the solicitor advised the Solicitors for Mrs Ransley he was prepared to reduce the Bill of $16,718.90 to $14,000.00.

8. On 9 September 2004, after further negotiation, the solicitor received the agreed amount of $29,000.00, which he deposited into his office account. This covered the following:-

Balance outstanding - Bill in Par. 4 above 115.40

Bill for Disbursements 649.00

Bill referred to in Par. 5 above 16,718.90

17,483.30

The balance then remaining was $11,516.70.

9. On 10 September 2004 the solicitor issued a further Bill in the sum of $11,516.70 for work done between May 2002 and 6 September 2002.

10. There has been a failure to account to Ms Ransley in the following amounts:

Reimbursement of Insurance Premium 652.23

Reimbursement of Funeral Account 3683.07

Reimbursement of Valuation fee 500.00

GST shown in Bill dated 10/9/04 407.00

GST charged for Supreme Court filing fee 13.70

$5,256.00

11. The amount outstanding to the Solicitors for Mrs Ransley for Counsel's fees paid by them were not met by the solicitor despite his receiving from Ms Ransley a cheque in the sum of $110.00 which remained in the file.

12. Following the receipt by the solicitor of the sum of $29,000.00 there has been a failure to account to Ms Ransley for $8,296.10 made up as follows:

Due to be reimbursed for Costs as per reduced Bill 14,000.00

Balance outstanding as per Bill referred to in Par. 4 115.40

Bill for Disbursements 649.00

Amount paid to Counsel 5802.50

Filing fee 137.00

Total - 20703.90

Balance due to Ms Ransley 8296.10 29000.00

L: David Williams and Deborah Townsend

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Failure to account

1. Elvie Doreen Williams ("Mrs Williams") owned the property known as 28 Chelston Street, Warners Bay.

2. On 18 January 2002 a Deed of Family Arrangement was entered into pursuant to which a Transfer was executed between Mrs Williams as Transferor and herself and the two children (David and Deborah) as Transferees

3. On 24 February 2003 the solicitor issued a Bill of Costs ("the Bill") in the sum of 11,109.28 including disbursements of $8,689.28.

4. The disbursements included stamp duty of $4,423.34 for David, stamp duty of 4,423.34 for Deborah and Registration and Agency fees for the Transfer of $75.18.

5. In April 2003 David and Deborah each paid their one half share of the Bill by a direct deposit to the solicitor's office account.

6. The solicitor did not stamp or register the Transfer.

7. On 7 September 2005 Mrs Williams died and the property was transferred to David and Deborah by way of Transmission Application, which was duly stamped in the sum of $10.

8. There has been a failure to account by the solicitor for the amount of $8,689.28 being the amount received for stamp duty and registration fees, which were not paid.

M: Estate Jane Ann Roach and Jeanette Marinos

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to disclose costs pursuant to the provisions of sections 175 and 177 of the Legal Profession Act, 1987

1. The solicitor acted for the late Jane Ann Roach ("Mrs Roach") before her death in drawing up her Will and the granting of a Power of Attorney to her daughter Jeanette Marinos ("Mrs Marinos").

2. Pursuant to the Power of Attorney Mrs Marinos sold her mother's Swansea Heads property and purchased for her a property at Boolaroo. The solicitor acted on behalf of Mrs Marinos with respect to the sale and purchase of the properties. On 11 December 2002 the Boolaroo property was registered in the name of Mrs Marinos.

3. On 25 October 2002 the solicitor received the proceeds of sale of the Swansea Heads property totalling $240,632.77.

4. Aside from his costs of acting on the sale and purchase the solicitor drew from the balance of the proceeds of sale the following amounts without the authority of his client:-

Date drawn Tax Invoice No. Amount drawn

7.11.02 14159 2,200.00

29.11.02 14197 2,204.40

31.1.03 14307 1,101.10

7.2.03 14324 1,126.40

13.2.03 14333 1,100.00

20.2.03 14346 1,100.00

26.2.03 14371 2,200.00

13.6.03 14574 $1,342.00 1,314.74

$12,346.64

5. The amounts were transferred from the Trust Account to the Office Account on the same day as the bill was raised in each case. Further, the Receiver could not find any evidence of any form of accounting being furnished to Mrs Marinos.

N: Michael Popel and Anne Popel

- Misappropriation

- Wilful breach of Section 255 of the Legal Profession Act, 2004

1. The solicitor acted for Mr & Mrs Popel with respect to a dispute with a neighbour concerning breach by this neighbour of a covenant affecting his land

2. On 8 December 2005 the matter was settled by a Deed of Release and Compromise entered into by the parties pursuant to which the sum of $82,000.00 was payable to Mr & Mrs Popel in full settlement of their claim.

3. On 8 December 2005 the solicitor received the sum of $81,000, which he deposited to his Trust Account.

4. On 9 December 2005 the solicitor prepared a Bill of Costs in the amount of 3,000.25.

5. On 13 December 2005 the solicitor transferred the sum of $13,000.00 from the Trust Account to his Office Account and paid the balance of $68,000 to Mr & Mrs Popel.

6. On 9 January 2006 the solicitor received the balance due of $1,000, which he deposited to his Trust Account.

7. On 9 January 2006 the solicitor prepared a Bill of Costs in the amount of $990.00. Without authority he then transferred that amount from his Trust Account leaving a balance in the Account of $10.00 which remained at the time the Receiver was appointed.

8. The Bill of Costs dated 9 January 2006 was not issued and sent to Mr & Mrs Popel.

O: Marlita Twigg

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Failure to account

1. The solicitor acted for Marlita Twigg ("Mrs Twigg") the widow of John Barry Twigg whose Executor was his son Michael Sidney Twigg.

Mrs Twigg claimed a variation of the Life Tenancy granted to her of the property at 18 Wallarah Street, Swansea ("the property").

2. On 20 June 2005 the solicitor issued a Bill in the sum of $5,418.10 after initially issuing a Bill in the sum of $2,755.50 on 12 January 2005.

3. On 28 June 2005 a Deed of Family Arrangement was entered into in settlement of the matter. Pursuant thereto the property was to be transferred to and registered in the name of Mrs Twigg. Upon settlement the Costs & Disbursements of the solicitor were paid from the funds of the Estate.

4. On 5 August 2005 the sum of $7,136.60 being the sum agreed to by the solicitor was received and deposited direct into the solicitor's office account.

5. The Bill dated 20 June 2005 in the sum of $5,418.10 included an amount for estimated stamp duty in the sum of $346.00 and anticipated Counsel's fees of $385.00.

6. At the time the Receiver was appointed the Certificate of Title was in the name of the deceased and the Transfer had not been stamped or registered.

7. The solicitor has failed to account to Mrs Twigg for $731.00 comprised of the unpaid stamp duty ($346.00) and unpaid Counsel fees ($385.00).

P: Dr Brian Hardie - Stat Dec from Dr Hardie in Napper S.270 report

- Misappropriation

- Wilful breach of Section 61 of the Legal Profession Act, 1987

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

- Failure to disclose costs pursuant to the provisions of sections 175 and 177 of the Legal Profession Act, 1987

- Misleading conduct by providing false information concerning the practitioner's dealings with trust monies.

1. The solicitor acted for Dr Brian Hardie with respect to the sale of his large land holding at Fletcher a suburb of Newcastle.

2. On 23 June 2004 the sale of part of the land settled and at settlement the solicitor received the sum of $1,037.468.82, which he deposited to his Trust Account. On the same day the solicitor drew from this sum his costs of $22,468.82 leaving a balance remaining in the Trust Account of $1,015,000.00.

3. On 3 February 2005 the sum of $M1 was drawn from the solicitor's Trust Account and deposited into an account kept with the Newcastle Permanent Building Society Limited as a controlled money account ("the controlled money account"). The account in the name of the solicitor was styled "In trust for Brian Hardie Pty Limited ATF Four C's Trust."

4. On 4 February 2005 the solicitor, along with another person, became a Director of the Company Brian Hardie Pty Limited of which Dr Hardie and his wife Nanette Hardie were Directors.

5. On 21 February 2005 proceedings were commenced against Dr Hardie by Warwick Denshire a person with whom Dr Hardie had entered into a Joint Venture Agreement.

6. In addition to the sum of $1,015,000.00 referred to in paragraph 2 the solicitor received moneys from other sales by Dr Hardie together with interest on the moneys held in the controlled money account. The total dealt with by him was $1,359.410.01.

7. Between 3 February 2005 and 28 March 2007 the solicitor issued Tax Invoices and transferred from his Trust Account to his Office Account the sum of $369,287.78 without the authority of Dr Hardie, Mrs Nanette Hardie or his fellow director.

8. The solicitor did not disclose his costs nor did he provide an estimate as to his costs to Dr Hardie or Brian Hardie Pty Limited.

9. Between 26 May 2005 and 21 July 2005 without authority the solicitor withdrew $102,000.00 from the controlled money account and deposited it to his Trust Account. On the same day as each withdrawal, by journal entry, each amount received was transferred to the solicitor's Office Account. The solicitor advised no party of these withdrawals.

10. The solicitor acknowledged to the Receiver that he did not send any of the Tax Invoices raised to Dr Hardie or any of the parties acting for him.

11. The Receiver prepared a summary of the Tax Invoices and the details given thereon concerning the work carried out by the solicitor or his staff, which show obvious duplications and Invoices which appear to be improper and do not represent proper costs due to the solicitor. The amounts transferred from the Trust Account to the Office Account in respect of these Invoices totals $190,047.00.

12. The Receiver estimates that there is a failure to account by the solicitor to Dr Hardie of $198,144.10 made up as follows:-

Amounts improperly drawn and transferred to the Office

Account as per the Tax Invoices 190,047.00

Amounts included in the Bills of Costs

for photocopying & facsimiles 8,097.10 $198,144.10

Q: Evonne Jones

- Failure to account

- Breach of Section 254 of the Legal Profession Act, 2004

- Misappropriation

1. The solicitor acted for Evonne Jones (Ms Jones) in Supreme Court Equity Division Proceedings and Mr C Vindin of Counsel was briefed in the matter.

2. On 28 November 2006 Ms Jones paid the solicitor the sum of $2,500, which is not credited in either the solicitor's Trust Account or Office Account. The solicitor issued an unofficial receipt [No. 83] to Ms Jones, which was signed by him.

3. On 13 June 2007 Ms Jones paid the solicitor the sum of $1,000 which is not credited in either the solicitor's Trust Account or Office Account. The solicitor issued an unofficial receipt to Ms Jones for the payment, which was on account of fees due to Mr Vindin. This amount was not paid to Mr Vindin.

Matters arising from report dated 30 January 2008

R: David Neale & Karen Anne & Dale Hurry

- Misappropriation

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

- Failure to disclose costs pursuant to section 309 of the Legal Profession Act, 2004

- Causing deficiency in trust account

1. The solicitor acted for Dale Scott Hurry in relation to fraud charges [Hurry ats Police, No. 010072].

2. The solicitor also acted for Dale Hurry's parents, David Neale Hurry and Karen Anne Hurry in relation to proceedings commenced against them by the Commonwealth Bank and the refinance of their property to ING Bank [No.010431].

3. On 21 November 2005 the solicitor issued his final Bill in the Police matter to Dale Hurry in the sum of $$5,651.90, which included as a Disbursement the sum of $1,000.00 due to Peter Harper of Counsel.

4. On 25 November 2005 the solicitor received $188,615.42, which he credited to the trust ledger Account No.010431.

5. On 25 November 2005 the amount of $5,651.90 was transferred from the Account No. 010431 to the trust ledger Account No 010072. On the same day that amount was electronically transferred to the solicitor's office account.

6. On 25 November 2005 after deduction of the solicitor's bill in respect of the Mortgage the balance remaining of $180,467.28 was transferred to the trust ledger account of Mr & Mrs David Hurry Matter No.010455 re. Financial Arrangements.

7. On 5 December 2005 Peter Harper was paid $1,000.00 from the trust funds held. The solicitor did not disclose his costs nor did he provide an estimate as to his costs to Dale Hurry or his parents.

8. Between December 2005 and 15 March 2007 the sum of $180,467.28 was disbursed by various payments leaving a nil balance at that date.

9. Amongst those payments were the following:

Transfers for Costs & Disbursements - David Hurry ats CBA $11,089.28

Transfers for Costs & Disbursements - Karen Hurry ats CBA$ 4,420.90

Costs & Disbursements $24,784.10

Such payments were without the authority of Mr & Mrs Hurry and Bills were not issued to them.

10. There has been a failure to account for $15,410.00 made up as follows:

Duplication of fees paid to Peter Harper of Counsel 1,0000.00

Duplication of fees paid to Dooley & Associates from

Trust A/c 660.00

Amount drawn in respect of Tax Invoice No. 16260 as a

retainer 11,000.00

Amount drawn in respect of Tax Invoice No. 16544 as a

retainer 2,750.00

$15,410.00

S: Estate of Allan Cyril Hodson - affidavit from Executrix received

- Misappropriation

- Wilful breach of Section 255 of the Legal Profession Act, 2004

- Failure to account

- Causing deficiency in trust account

1. On 8 July 2005 Probate of the Will of Allan Cyril Hodson ("the deceased") was granted to the Executrix named in the Will namely his granddaughter Vicki Joy Paul ("the Executrix") after the solicitor was instructed by her to obtain such a Grant.

2. The deceased left his Estate to the Executrix.

3. On 30 June 2005 the solicitor prepared a Bill of Costs & Disbursements in the sum of $4,365.43.

4. On 27 January 2006 the balance owing on the account was paid following receipt by the solicitor of the proceeds of sale of the deceased's property.

5. On 23 January 2006 the solicitor issued a Tax Invoice for the sum of $9,996.80, which showed as a Disbursement Counsel's fees in the sum of $4,400.00, which the solicitor forwarded to the Executrix with a letter of that date.

6. On 14 February 2006 the solicitor issued a Tax Invoice in the sum of $7,103.80 and on the same day transferred electronically that sum from his Trust Account to his Office Account. Such transfer was without the authority of the Executrix.

7. The Executrix lodged an Application with the Supreme Court for Assessment of the Bills of Costs that issued to her.

8. The Assessor when dealing with the Tax Invoice dated 27 January 2006 allowed Counsel's fees in the sum of $3,300.00 when assessing the Invoice at $7,626.30.

9. The Assessor when dealing with the Tax Invoice dated 14 February 2006 assessed it at $1,974.25. The Assessor allowed a rate of $275.00 for both Invoices.

10. On 29 March 2007 the Assessor issued a certificate whereby the Costs payable by the Executrix to the solicitor was determined in the sum of $9,500.55 after deducting the filing fee of $100.00.

11. Enquiries by the Receiver revealed that Counsel had not issued a Memorandum of Fees. Accordingly the costs assessed should be reduced to $6,300.55.

12. The total of the Bills dated 23 January and 14 February 2006 is $17,100.60. The amount improperly drawn of $10,800.05 is obtained by subtracting $6,300.55 from the sum of $17,100.60.

13. The Receiver calculated the amount due as $6,864.30 when allowing the solicitor's normal rate of $300.00 per hour. The amount improperly drawn would therefore be $10,236.30."

The Nature of the Solicitor's Conduct

17 We note that the Solicitor sought to restrict his Consent to the Statement of Agreed Facts by stipulating that they could be used for the purposes of these proceedings only.

18 This appears to have been attempt on the Solicitor's part to invoke the right to privilege in respect of self-incrimination in other proceedings pursuant to Section 128 of the Evidence Act 1995. This provides (relevantly):

"128 Privilege in respect of self-incrimination in other proceedings

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b) is liable to a civil penalty.

(2) The court must determine whether or not there are reasonable grounds for the objection.

(3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:

(a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and

(b) that the court will give a certificate under this section if:

(i) the witness willingly gives the evidence without being required to do so under subsection (4), or

(ii) the witness gives the evidence after being required to do so under subsection (4), and

(c) of the effect of such a certificate.

(4) The court may require the witness to give the evidence if the court is satisfied that:

(a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and

(b) the interests of justice require that the witness give the evidence.

(5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence..."

19 The Solicitor did not file any evidence in the proceedings and he did not attend the hearing and/or object to giving evidence in the proceedings on the on the ground that the evidence may tend to prove that he has committed an offence against or arising under an Australian law or a law of a foreign country, or is liable to a civil penalty.

20 Accordingly, the Solicitor's purported conditional consent to the grounds and particulars alleged in the Application does not entitle him to protection afforded by the issue of a Certificate under Section 128(4) of the Evidence Act 1995.

21 We are comfortably satisfied that the evidence in this matter proves the matters set out in the Statement of Agreed Facts and that the grounds of the complaint have been made out. We find accordingly.

22 We have no hesitation in finding that the Solicitor's conduct amounts to professional misconduct, both at common law and under statute.

23 In particular, His conduct falls within section 497(1)(b) of the 2004 Act, which provides 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'.

24 In our view, 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 paraphrase 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'.

Findings and Considerations Relevant to Penalty

25 For the reasons set out above, we find that the Solicitor is guilty of professional misconduct consisting of each of the grounds particularised in the Application and Statement of Agreed Facts filed in these proceedings.

26 Mr Matalani referred the Tribunal to the decisions in The Council of the Law Society of New South Wales v O'Donnell [2010] NSWADT 130 ("O'Donnell") and Law Society if New South Wales v Shenker [1999] NSWADT 37 ("Shenker") in relation to the issue of penalty.

27 In O'Donnell, the Tribunal discussed the relevant authorities as follows:

"21. In Law Society of New South Wales v Bannister [(1983) 4 LPDR 24 at 28], Sheller JA stated:

"When the jurisdiction of the Tribunal is invoked under Part 10 ... of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration is to protect the public by preventing a person unfit to practice from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. The Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner. In the case of a Solicitor these elements together or separately may call from the removal of the Solicitor's name from the roll or the imposition of a substantial fine."

28 Thus, the Tribunal's function is both protective and consistently educative, "publicly marking the seriousness of what the instant Solicitor has done."

29 In Law Society of New South Wales v Walsh [unreported decision in December 1997] it was said that the Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Therefore it is relevant to consider the effect that the orders to be made by the Tribunal will have upon the understanding of the profession and the public regarding the standard of behaviour expected from Solicitors.

30 In Harvey v The Law Society of New South Wales [(1975) 49 ALJR 362 at 364], the Court held:

"The function of a Court called upon to consider an application to remove the name of a practitioner from a roll of practitioners is to examine the material proffered to it in order to determine whether that material establishes that the Solicitor has failed, by action or inaction, to maintain in his conduct the standards required of him as a member of the profession. The Court's duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and the practitioner with the members of the public, who find need to use the services of the profession. It is no part of that function to punish the Solicitor whose conduct the Court finds to be in breach of those professional standards."

31 In Ex Parte Macaulay [(1930) 30 SR NSW) 193, at 193-4], Street CJ stated:

"Unless the Court insists on a high standard of conduct on the part of Solicitors - unless the Court punishes severely every lapse from the proper standard - the public will never be properly guarded and the profession will never retain the respect which it to have in the community."

32 In Ziems v The Prothonotary of the Supreme Court of New South Wales [(1957) 97 CLR 279 at 297-8], where Kitto J stated that the relevant test to be applied by the Court when dealing with a legal practitioner before it:

"(t)he issue is whether the Society is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a practitioner."

33 In Dupal v Law Society of New South Wales [unreported, NSW Court of Appeal, 26 April 1990] (Dupal) Kirby P stated:

"... (the) normal consequence of the misuse of entrusted funds by a Solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is the removal of the name of the Solicitor from the roll."

34 Further in Dupal, where Handley JA stated:

"This Court would be departing from a long course of authority if it were to allow the Appeal and substitute a period of suspension for the order of the Tribunal removing the appellant from the roll. Counsel were not able to refer me to any case where a Solicitor found guilty of misappropriation of wilful contravention of Section 61(1) has not been struck off the roll. Any decision to the contrary would signal to the profession and the community that this Court was no longer insisting on Solicitors maintaining the highest standards of personal honesty and integrity in their dealings with client and the public and in the handling of monies entrusted to their charge."

35 Further, Kirby P stated (at page 1):

"A case of wilful misuse of the funds of others

In this sense, the response of the Court to the facts as found by Handley JA (which I also accept) necessarily expresses and reflects the standards which the Court requires of legal practitioners in this State. In an appeal such as the present, the Court disposes of the case before it by reference to criteria of general application. These should be clear and simple. They should be such as to leave no doubt in the mind of a practitioner in financial difficulties, exposed to the temptation of using without clear authority the funds of another, the consequences that will flow for the right to practise when such misuse of funds is discovered."

Orders

36 The Society submitted that in view of the seriousness of the conduct only one order is appropriate, namely that the Solicitor's name be removed from the roll. It also sought a costs order against the Solicitor.

37 In view of the matters discussed above and the important considerations that govern disciplinary proceedings, namely the protection of the public, protection of the reputation of the legal profession as a whole and the objective of general deterrence, we accept Mr Matalani's Submission as to penalty and order that the Solicitor's name be removed form the Local Roll in accordance with Section 562(2)(a) of the LPA 2004.

38 In relation to the issue of costs of the proceedings, Section 566 LPA 2004 requires that where a finding of professional misconduct has been made against the Solicitor, we must make a costs order unless "exceptional circumstances exist".

39 In this regard, we note that the Solicitor, in correspondence to the Law Society, asserted that he did not consent to the making of a costs order against him on the basis that he was unable to meet such an order. However, while he also indicated that he would provide the Society with further evidence in relation to this matter he did not do so.

40 Accordingly, there is no evidence of exceptional circumstances before us and order that the Solicitor pay the Law Society's costs of and incidental to the proceedings, as agreed or assessed.

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

Registrar

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Decision last updated: 09 June 2011