Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of NSW v Kennedy [2011] NSWADT 313
• Hearing dates: 16 August 2011
• Decision date: 16 August 2011
• Jurisdiction: Legal Services Division
• Before: G Mullane, Judicial Member; N Isenberg, Judicial Member; E Hayes,Non-judicial Member

Decision

1 Jarrod Ross Kennedy is guilty of professional misconduct.

2 By consent the name of Jarrod Ross Kennedy is to be removed from the roll.

3 By consent Jarrod Ross Kennedy must pay the costs of the Law Society.

• Catchwords: Solicitor - professional misconduct - Instrument of consent - striking off.
• Legislation Cited: Legal Profession Act 1987; Legal Profession Act 2004
• Cases Cited: -
• Category: Principal judgment
• Parties: Council of the Law Society of NSW (Applicant); Jarrod Ross Kennedy (Respondent); Legal Services Commissioner (Intervenor)
• Representation: Law Society of NSW (Applicant); Burston Cole and Mulock (Respondent); Legal Services Commissioner
• File Number(s): 112009

Legal services division

Mr G Mullane - Judicial Member, Ms N Isenberg - Judicial Member, and Ms E Hayes - Non-judicial Member.

REASONS FOR DECISION

INTRODUCTION

1 These were disciplinary proceedings against the respondent solicitor commenced by the Law Society of NSW by its application filed in the Tribunal on 11 July 2011.

2 The applicant relied upon numerous grounds but in summary these were:

misappropriation - 141 instances;

failure to account - 89 instances;

wilful breach of Section 61 of the Legal Profession Act 1987 (Handling of Trust Moneys) - 93 instances;

wilful breach of Section 62 of the Legal Profession Act 1987 (Failure to keep of proper accounting records of Trust moneys) - 97 instances;

wilful breach of Section 255 of the Legal Profession Act 2004 (Breach of requirements for the holding, disbursing and accounting for Trust Money) - 28 instances;

wilful breach of Section 257 of the Legal Profession Act 2004 (Paying and accounting for transit money) - 4 instances;

wilful breach of Section 262 of the Legal Profession Act 2004 (deficiency in Trust Account without reasonable excuse or failure to pay or deliver Trust money) - 12 instances;

wilful breach of Section 264 of the Legal Profession Act 2004 (failure to keep proper trust records in relation to trust money received) - 23 instances;

Defrauding or attempting to defraud the Office of State Revenue

-- 61 instances; and

drawing false invoice - 1 instance.

INSTRUMENT OF CONSENT

3 The respondent, the solicitor for the Law Society, and the Legal Services Commissioner in June executed an Instrument of Consent under Section 564 of the Legal Profession Act 2004. Counsel for the Law Society sought and the respondent's solicitor and Legal Services Commissioner consented, to orders that the name of the respondent be removed from the Roll and that he pay the costs of the Law Society.

THE EVIDENCE BEFORE US

4 The evidence before us comprises the Application for Original Decision (180 pages) and the Instrument of Consent (216 pages).

5 The Instrument of Consent is such that the respondent admits all of the grounds raised in the application of the Law Society. He admits the particulars in relation to each and every ground, which particulars are set out in the Consent Instrument.

CONCLUSIONS

6 The respondent has over a period from 2001 to 2007 engaged in repeated instances of conduct which was fraudulent, otherwise dishonest, or in breach of the requirements of the Legal Profession Act in relation to trust moneys. We find that such conduct involved a substantial and consistent failure to maintain a reasonable standard of competence and diligence and is professional misconduct within Section 497 of the Act.

7 We also find that the conduct detailed in the Consent Instrument is such that the respondent is not a fit and proper person to engage in legal practice. His name should be removed from the Roll.

8 We are not satisfied that there are any exceptional circumstances in relation to the issue of costs and accordingly, pursuant to Subsection 566(1) of the Legal Profession Act 2004, the respondent should pay the costs of the Law Society.

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Decision last updated: 02 February 2012