Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Legal Services Commissioner v Kumar [2014] NSWCATOD 45
• Hearing dates: 29 July 2013
• Decision date: 05 May 2014
• Before: JS Currie - Senior Member; S Hale - Senior Member; E Hayes, General Member

Decision

1.The name of the Respondent is to be removed from the Roll of Practitioners

2.The Respondent is to pay compensation to Mr Muhammad Malik in the amount of $3,000, on the basis that part-payments totalling $9,000 have been made.

3.The Respondent is to pay the costs of the Commissioner, as agreed or assessed.

4.Exhibits are to be returned.

• Catchwords: Professional misconduct established at principal proceedings ([2013] NSWADT34. Appropriate penalty.; Deliberate dishonesty by Respondent.; Not an isolated act.; Lack of insight or contrition by Respondent.; Respondent's character and fitness at time of hearing.; Order for removal from the Roll. Compensation order.; Costs order considerations.
• Legislation Cited: Legal Profession Act, 2004; ss 670(1),674.
• Cases Cited: A Solicitor v Law Society of NSW (2004) 216 CLR 253 at 264.; Allinson v General Council of Medical Education and Registration [1894] 1 KB 750.; Bannister v Walton (1993) 30 NSWLR 699 at 723-729.; Barry John Penfold [1997] NSWLST 23; Colin Walter Peck, Unreported, Solicitors' Statutory Committee, 23 April 1981; Council of the Law Society of New South Wales v Bharati [2010] NSW ADT 159.; Council of the Law Society of the ACT and Legal Practitioner "S" [2012] ACAT 29.; Council of the New South Wales Bar Association v Nash (No.2) [2013] NSW ADT 64.; Dupal v Law Society of New South Wales, Unreported, 26 April 1990, BC 9002508.; Fraser v Council of the Law Society of New South Wales (unreported, Court of Appeal (NSW): Kirby P., Handley and Cripps JJA, 7 August 1992.; Law Society of New South Wales v Doherty (No.2) [2009] NSWADT 296.; Law Society of New South Wales v English [2011] NSW ADT 39.; Law Society of New South Wales v Foreman, No.2 (1994) 34 NSWLR 408.; Law Society of New South Wales v Goold [2001] NSW ADT 171.; Law Society of New South Wales v Green [2001] NSWADT 142.; Law Society of New South Wales v McCarthy [2003] NSWADT 1983.; Law Society of New South Wales v McNamara (1980) 47 NSWLR 72.; Law Society of New South Wales v McNamara [2007] NSW ADT 162; Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 743.; Law Society of New South Wales v Witherdin [2004] NSWADT 264.; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279.; New South Wales Bar Association v Evatt (1968) 117 CLR 177; New South Wales Bar Association v Kalaf (NSW Court of Appeal, 11 October 1988, BC 8801429 at 1.; New South Wales Bar Association v Maddocks NSWCCA 28 August 1988.; Prothonotary v Del-Castillo [2001]NSWCA 35.; Prothonotary v Richard ;NSWCC, 31 July 1987 per McHugh JA; Re A Barrister and Solicitor (1979) 40 FLR 1.; Smith v NSW Bar Association (1992) 176 CLR 25.
• Category: Principal judgment
• Parties: Legal Services Commissioner (Applicant); Vijay Kumar (Respondent)
• Representation: NJ Beaumont SC (Applicant); D Pritchard SC (Respondent); LA Muston, Legal Services Commission (Applicant); TA Williams (Respondent)
• File Number(s): 112018

reasons for decision

The disciplinary proceedings relating to the Respondent.

1 Over 6 days between 1 December 2011 and 1 August 2012 the Tribunal conducted a hearing of an Application brought by the Legal Services Commissioner against the Respondent.

2 In the Application, the Legal Services Commissioner ("the Commissioner") sought a finding that the Respondent, an Australian legal practitioner practising as a solicitor in the suburbs of Sydney, was guilty of professional misconduct or alternatively guilty of unsatisfactory professional conduct.

3 The Commissioner sought orders that the Respondent's name be removed from the Roll of Practitioners; further and in the alternative that he be publicly reprimanded; and in the alternative that he be fined. A compensation order was also sought by the Commissioner, to the effect that the Respondent pay compensation in the sum of $12,000 to a former client, Mr Muhammad Malik.

4 The Commissioner based his application for these findings and orders in respect of professional misconduct or unsatisfactory professional conduct on 4 grounds set out in the Application. In summary these were that the Respondent:

(a) obstructed or misled an investigator exercising a power under the Legal Profession Act, 2004; (Ground 1);

(b) deliberately misled the Court as to his whereabouts on 1 February 2011; (Ground 2);

(c) deliberately misled the Commissioner as to his whereabouts on 1 February 2011; (Ground 3); and

(d) misappropriated $12,000 from his client Mr Muhammad Malik; (Ground 4).

(e) A fifth ground was not pursued by the Commissioner.

5 There were preliminary Directions Hearings on 7 September 2011 and 2 November 2011. The hearing was listed to commence on 1 December 2011 and the Tribunal sat for the purposes of commencing the hearing on that day, but the hearing could not proceed on that day and was adjourned by consent, due to what the Respondent conceded to be the incomplete state of his preparation of his case. The adjournment on that day was accompanied by undertakings by the Respondent to adhere strictly to a timetable for the filing of pleadings and evidence.

6 For convenience of reference, the proceedings up to and including the delivery by the Tribunal of its determination and Reasons on 8 February 2013 will be referred to as "the principal proceedings".

The findings and orders of the Tribunal in the principal proceedings.

7 On 8 February 2013 the Tribunal published its determination and Reasons for Judgment in relation to the principal proceedings. The Tribunal found that the Respondent guilty of professional misconduct as alleged in Grounds 1, 3 and 4. The Tribunal found that Ground 2 had not been established.

8 The Tribunal directed that a separate hearing be held as to the issue of penalty, any further orders including costs and the compensation claim. For convenience of reference that hearing will be referred to in these Reasons as "the hearing as to penalty and other orders".

The hearing as to penalty and other orders

9 Following a Directions Hearing on 7 March 2013 the hearing as to penalty and other orders was held on 29 July 2013. The matters which fell for determination by the Tribunal at that hearing were:

(a) the penalty which should be imposed on the Respondent as a result of his professional misconduct;

(b) whether a compensation order should be made against the Respondent, and if so in what terms;

(c) whether an order for payment of the Applicant's costs should be made against the Respondent and if so in what terms; and

(d) whether any further or ancillary orders should be made.

10 Each of these matters will be dealt with separately in the Reasons which follow.

(a)THE PENALTY TO BE IMPOSED ONTHE RESPONDENT

Evidence adduced by the Respondent

11 The Respondent filed further affidavit evidence for the purposes of the hearing as to penalty and other orders and gave oral evidence, on which he was cross examined. The Tribunal's analysis and findings as to this evidence appears under a separate heading below.

12 The Respondent's affidavit evidence consisted firstly of an affidavit which he had made on 29 April 2013, and on which he was cross examined.

13 Secondly, there were a number of character reference affidavits, nearly all of which (with the exception of the affidavit of Mr Hemant Prakesh, Solicitor) were in identical or very similar form. In each of those affidavits the deponent referred to a previous affidavit or letter of reference, filed or prepared in relation to the principal proceedings. The deponent then asserted that he or she had been provided with a copy of the Tribunal's determination of 8 February 2013, had read it, was aware of the serious findings against the Respondent and of the serious findings and adverse comments made by the Tribunal about the Respondent, but did not wish to change or withdraw any of the comments made previously by him or her. In his affidavit, Mr Prakesh, solicitor deposed as to the social and economic impact of the Tribunal's decision upon the Respondent's family and the significant loss of confidence, respect and loyalty by the Respondent's former clients, caused by the Tribunal's decision.

14 The Respondent also filed a number affidavits from medical and related professional clinical witnesses. The first of these was from Mr Tim Watson-Munro, Consultant Forensic Psychologist sworn on 19 July 2013. This affidavit annexed two reports by Mr Watson-Munro dated 31 July 2012 and 24 June 2013. The second such affidavit was from Dr Sharon Reuten's, Consultant Psychiatrist, affirmed on 22 July 2013. Dr Reuters examined the Respondent on 17 June 2013 for the purpose of psychological assessment and she attaches to her affidavit a written report as to that consultation and assessment, dated 25 June 2013.

15 Thirdly there was an affidavit by Ms Elaine Ford, a Nurse Practitioner, Counsellor and Psychotherapist. It is not clear whether the affidavit was sworn or affirmed but it was made at Penrith on 26 July 2013. Ms Ford deposes that she examined the Respondent on 23 July 2013 and her affidavit annexes her written report of that examination dated 24 July 2013. That is significant because it indicates that Ms Ford's examination was the most recent professional examination of the Respondent prior to the hearing as to penalty and costs..

Submissions as to penalty made on behalf of the Commissioner.

16 Mr Nicholas Beaumont SC appeared for the Commissioner. Mr Beaumont SC provided written submissions and addressed the Tribunal in some detail on the issue of penalty.

17 Mr Beaumont SC's opening contention was that the findings of deliberate dishonesty by the Respondent were such that even a clear indication of insight into the seriousness of the matter or a genuine expression of attrition by the Respondent should not be accepted by the Tribunal.

18 However, in Mr Beaumont's contention such a formulation does not apply in the present case, because here the Respondent has provided no indication of his insight into the seriousness of what he has done or the requirement to act honestly and has not provided even a formulaic expression of regret or contrition. In Mr Beaumont's contention, the only thing which emerges from a careful examination of the evidence, including the expert evidence in affidavit form, is the Respondent's regret that he finds himself in his current position and regret that the Tribunal's findings have damaged his career and standing. Mr Beaumont pointed to the indications in the Respondent's evidence that he will appeal the decision of the Tribunal. For example there are 2 references to the Respondent indicating the likelihood of an appeal in the report from Ms Elaine Ford annexed to her affidavit of 26 July 2013. In Mr Beaumont's contention that is inconsistent with any degree of insight by the Respondent or any contrition by him.

19 In Mr Beaumont's contention, the result of this lack of insight and contrition is that in the case of the Respondent there is no "pathway for rehabilitation"; that is, no way in which the Tribunal could be satisfied that the Respondent has sufficiently rehabilitated himself to be regarded as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor.

20 It was suggested by Mr Beaumont that the ultimate question for the Tribunal is whether it is any longer justified in holding out the Respondent as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor. In this regard Mr Beaumont relied on the cases of A Solicitor v Law Society of NSW (2004) 216 CLR 253 at 264 and Law Society of NSW v Foreman No.2 (1994) 34 NSWLR 408 at 441C. The latter case will be referred to in these Reasons simply as "the Foreman Case" or "Foreman".

21 Mr Beaumont further contended that on the facts as found and the evidence, the Tribunal could not find that the Respondent is fit and proper to remain on the Roll by reference to the four interests described by Spigelman CJ in NSW Bar Association v Cummins (2001) 52 NSWLR 279 at 284 [20]. In that passage the learned Chief Justice proposed that the "highest standards of integrity" are required of legal practitioners because of the four interrelated interests involved, being those of clients, fellow practitioners, the judiciary and the public generally. He concluded by saying:

"Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people."

22 In relation specifically to Ground 4, in respect of which the Respondent was found to be guilty of misappropriating $12,000 from his client by deliberate and dishonest act (see Reasons in the principal proceedings [45]), Mr Beaumont directed the Tribunal's attention to the authorities which indicate that deliberate and dishonest misappropriation of client money is professional misconduct of a high order which, certainly where fraudulent intent is denied by the practitioner but subsequently that found proven (as in the present case), almost inevitably requires the removal of a practitioner's name from the Roll. See Re A Barrister and Solicitor (1979) 40 FLR 1, at 20-22; Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 743, and per Hope JA at 740-741; Council of the Law Society of New South Wales v Bharati [2010] NSW ADT 159 at [152].

23 In relation to Ground 3, in respect of which the Respondent was found guilty of professional misconduct by misleading the Commissioner, Mr Beaumont contended that there was substantial support for treating this species of professional misconduct in the same way as misleading the Law Society, that is as professional misconduct "of a most serious kind", because of the "role of the Law Society in maintaining professional standards and the standing of the profession in the eyes of the public" as elucidated by Hutley JA in Law or Society of New South Wales v McNamara (1980) 47 NSWLR 72, at 79 and 80.

24 In relation to Ground 1, covering the Respondent's professional misconduct by obstructing the Commissioner's investigation without reasonable excuse, in hindering and delaying the investigation for a period of approximately 11 months, Mr Beaumont contended that this constitutes a species of professional misconduct which is only marginally less serious than misleading the Commissioner. Mr Beaumont asked the Tribunal to consider that the conduct in all the circumstances constituted a concerted and extended course of hindrance and delay of an investigation that solicitors of good repute and competence would find disgraceful and dishonourable, by reference to the test in Allinson v General Council of Medical Education and Registration [1894] 1 KB 750.

25 Mr Beaumont SC also referred to the Tribunal's comment in relation to the principal proceedings that the Respondent:

"emerged as a patently unpersuasive witness.. (who) was at times evasive,... often failed to accept reasonable propositions, often rushed into an answer and then sought to retract it". (Paragraph [42] of the Reasons in the principal proceedings)"

26 Mr Beaumont contended that such a damning assessment was relevant to the question of the Respondent's "character and what (he) is apt to do in the future", as the test was characterised in the Foreman Case at 405C, citing Bannister v Walton (1993) 30 NSWLR 699 at 723-729 (cf Smith v NSW Bar Association (1992) 176 CLR 256).

27 Mr Beaumont submitted that factors such as the extremely busy state of the Respondent's practice, his lack of access to other practitioners or colleagues and lack of supervision should have weight only in cases where a genuine ethical dilemma arose for the relevant practitioner. In Mr Beaumont's contention a case in the Civil and Administrative Tribunal of the Australian Capital Territory, Council of the Law Society of the ACT and Legal Practitioner "S" [2012] ACAT 29, is authority for the proposition that where the standards which the Respondent is found to have infringed involve fundamental principles of honesty and fair dealing then they are standards which should be upheld at the most elementary level ,independently of work pressures, experience or supervision: [2012] ACAT29 at [17].

28 In relation to the evidence adduced by the Respondent by way of character affidavits, Mr Beaumont SC contended that each of the affidavits described above at paragraph 12 should be given very little weight by the Tribunal. Mr Beaumont SC referred to the sustained criticism of the character evidence in the Foreman Case. In the Court of Appeal, His Honour Justice Mahoney commenced by noting that care must be taken in assessing the weight to be given to character evidence.

29 In a significant passage, His Honour noted that:

"Character involves, inter alia, two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. Character is tested not by what one does in good times but in bad":( 34 NSWLR 408 at 449 B).

30 His Honour proceeded to note that in the character affidavits introduced by the Practitioner each of the referees suggested that the practitioner's default was, in their experience, out of character for her. That must lead to the Court's (or Tribunal's) assessment of the correctness of their judgment of the relevant practitioner's character and of what can be expected of that practitioner.

31 His Honour then said:

"it is necessary to assess the weight to be given to the predictions which the referees have made. If before (the date of the relevant professional misconduct) they had been asked whether she would do what she did, they would no doubt have said she would not. Their judgment in that regard would have been wrong. This is to be taken into account in judging whether, in saying that (the practitioner) will not default again, their judgment is to be accepted as accurate.":34 NSWLR 408 at 449 D

32 It was Mr Beaumont SC's contention that the weight to be given to the evidence from the Respondent's character referees in the present case should be subject to the same analysis, because each of them asserts the Respondent's previous good character in a similar way to that done by the witnesses in Foreman as described at paragraph 30 above.

33 Mr Beaumont reminded the Tribunal that each of the character referees for the Respondent asserted that they had been provided with a copy of the determination of the Tribunal in the principal proceedings, that they had read that determination and that despite that they did not wish to change or withdraw any of the matters previously stated by them, which asserted the good character of the Respondent.

34 Mr Beaumont also submitted that on a proper analysis none of the Respondent's character referees truly grapples with the seriousness of the Tribunal's findings against him, culminating in its finding that professional misconduct had been established in respect of Grounds 1, 3 and 4.

35 In concluding, Mr Beaumont SC submitted that the Tribunal's findings of three instances of serious professional misconduct over a substantial period by the Respondent, his evasiveness in giving evidence, and the theme of dishonesty common to all of the Tribunal's relevant findings, demonstrate that the Respondent does not now possess the personal qualities required for him to be considered a fit and proper person to remain on the Roll.

Submissions as to penalty made on behalf of the Respondent.

36 Mr David Pritchard SC appeared for the Respondent. Mr Pritchard SC provided written submissions on penalty and addressed the Tribunal at some length in relation to those submissions. Mr Pritchard provided further written submissions in response to the submissions of Mr Beaumont.

37 Mr Pritchard opened by noting that of the 5 original grounds relied upon by the Commissioner, the Respondent had succeeded in respect of Ground 2, being a serious allegation of misleading the Court, and that Ground 5 had not been pressed by the Commissioner.

38 Mr Pritchard submitted that in lieu of an order removing the name of the Respondent from the Roll, some form of reprimand is appropriate on the findings made by the Tribunal in the principal proceedings, and that the Respondent ought to be permitted, if he so wishes, to resume practice as an employed solicitor, with his practising certificate being subject to material conditions.

39 Mr Pritchard contended that the evidence which the Respondent had given as to his personal background, his efforts to establish and run separate offices at Campbelltown, Parramatta at Liverpool, his standing in the community, his medical problems particularly his degenerative back disorder and what he asserted to be anxiety and major depression, as well as the loss of reputation and standing and financial hardship which he had suffered as a result of the suspension of his practising certificate for over two years and his bankruptcy, should all contribute to justify a decision by the Tribunal falling short of a striking-off order.

40 On the important and related issues of insight by the Respondent as to the wrongfulness of his conduct and his contrition for them, Mr Pritchard SC submitted that the Respondent had presented his circumstances and current condition to the Tribunal frankly and fully and did not seek to excuse or minimise his conduct which was the subject of the Tribunal's findings in the principal proceedings. Mr Pritchard asserted that the Respondent's desire to practice only as an employed solicitor showed insight on his part and that that insight was corroborated by his active pursuit of medical assessment and treatment.

41 Mr Pritchard urged the Tribunal to base its orders on the fact that the Respondent was entitled to contest the charges against him and that he had appeal rights which he might want to consider, but that any expression of confirmation of his appeal rights did not of itself indicate any lack of remorse on his part. Mr Pritchard emphasised that the Respondent accepted the findings and orders made in the principal proceedings. He said that the Respondent's remorse was indicated by his clear appreciation of the import of those findings and orders and their consequences.

42 Mr Pritchard indicated that he had express instructions from the Respondent to tell the Tribunal that the Respondent does appreciate that his established conduct has fallen below the standards required of a member of the profession and accepts that there will be serious consequences.

43 Mr Pritchard also contended that the Tribunal should be satisfied that the Respondent's acts and omissions which were held to constitute professional misconduct could properly be construed as representing "an isolated blight on the otherwise unblemished professional career" of the Respondent. In this regard Mr Pritchard cited the case of NSW Bar Association v Kalaf (NSW Court of Appeal, 11 October 1988, BC 8801429 at 1). Mr Pritchard urged the Tribunal to find that the Respondent's conduct, particularly in relation to the misappropriation of $12,000 from his client, appeared to constitute an isolated act and could not properly be regarded as part of an ongoing course of conduct or conduct which was premeditated.

44 In particular, in Mr Pritchard's submission, the evidence did not reveal a pattern of dishonesty by the Respondent, although a pattern of dealings with the Commissioner, which were held by the Tribunal in the principal proceedings to constitute obstruction, had to be conceded.

45 Mr Pritchard also urged the Tribunal to have regard to the fact that the Respondent had no record of established complaints or findings as to his professional conduct, although it was conceded that he had effectively been in practice for less than 6 years.

Respondent's submissions on the appropriate penalty where dishonesty has been established

46 Mr Pritchard then provided detailed submissions as to why an order removing the name of the Respondent from the Roll would not be appropriate, notwithstanding that the Respondent had been found to have acted dishonestly.

47 In his written submissions Mr Pritchard referred to the authorities which support the proposition that an order striking a solicitor off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice. The authorities cited were Prothonotary v Richard NSWCC, 31 July 1987 per McHugh JA; NSW Bar Association v Maddocks NSWCCA 28 August 1988 and Prothonotary V Holt [2008] NSWCA 136 at [17](2). He also drew the Tribunal's attention to the case of Ziems v Prothonotary (1957) 97 CLR 279 at 283 which, with Prothonotary v Holt,was submitted as supporting the proposition that a conviction for a serious offence or a finding of misappropriation, as in these proceedings, is not necessarily sufficient reason for a striking-off order.

48 Mr Pritchard reminded the Tribunal that it should give consideration to the fitness of the practitioner to continue in practice at the present time, rather than at the time of the relevant conduct: Prothonotary v Del-Castillo [2001] NSWCA 35, at [71].

49 In his supplementary written submissions Mr Pritchard placed considerable reliance on the High Court case of A Solicitor v Law Society of NSW (2004) 216 CLR 253. In that case a solicitor who had been struck off after convictions for sexual offences was reinstated to the Roll, following his successful appeal against his striking-off. The High Court found that the New South Wales Court of Appeal appeared to have given insufficient weight to the isolated nature of the solicitor's offences in 1997, the exceptional circumstances in which the offences were committed and to the character and rehabilitation of the solicitor. The Court emphasised the need to decide on a practitioner's fitness at the time of the hearing not at the time of the alleged offence. Mr Pritchard cited a particular passage in which the Court said:

"Professional misconduct may not necessarily require a conclusion of an fitness to practice and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing."

50 At a separate part of the judgment the Court noted that:

"... It will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell and fitness for (practice); and to draw the dividing line is by no means always an easy task."

51 In his second set of written submissions Mr Pritchard gave considerable attention to the Foreman Case (Law Society of NSW v Foreman, No.2 (1994) 34 NSWLR 408) and, whilst acknowledging that the majority of the Court of Appeal considered that the appropriate penalty was the striking off of the solicitor, Mr Pritchard drew to the Tribunal's attention the alternative factors applied by Mr Justice Kirby in his dissenting judgment. His Honour believed that an alternate penalty would be more useful to the community as a whole, to the solicitor herself, to her family, to the profession's reputation and the potential clients of a person as talented and experienced as the solicitor. But it had to be noted that in making this statement His Honour confirmed that he was convinced that there was no real chance that the solicitor in that case would reoffend.

Submissions in relation to Council of the Law Society of New South Wales v Bharati [2010] NSW ADT 159.

52 Mr Pritchard made detailed submissions on the Tribunal's decision in the Council of the Law Society of New South Wales v Bharati [2010] NSW ADT 159, which for convenience of reference we refer to in these Reasons as "Bharati". Mr Pritchard invited the present Tribunal to give great weight to the approach of the Tribunal as to penalty in that case. There, a solicitor had been found guilty of professional misconduct in respect of misappropriation of trust monies of approximately $29,000. The solicitor was reprimanded and resumption of his practising certificate was made subject to conditions including restricting him to practising only as an employee, preventing him from operating on a trust account, his continuation of medication for depression to be confirmed by appropriate regular medical certification and a requirement that his employer be advised of the orders and acknowledge that this had occurred.

53 In Bharati, the solicitor appearing for the Law Society had submitted strongly that a striking off order be made. In doing so he relied principally on the decision of the New South Wales Court of Appeal in Dupal v Law Society of New South Wales, Unreported, 26 April 1990, BC 9002508. In particular, the solicitor for the Law Society relied on the judgment of His Honour Justice Handley, who apprehended that any decision other than the striking off of the solicitor would be one which would depart from a long course of authority and one which:

"... 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 clients and the public and in the handling of monies entrusted to their charge... It is well established that the jurisdiction being exercised in this case is not penal but disciplinary and that it must be exercised for the benefit of the public."

54 However, in Bharati the Tribunal was ultimately persuaded not to remove the solicitor from the Roll but rather to impose the lesser penalty, including a reprimand and what it saw as appropriate limitations on the solicitor's right to practice, as set out in paragraph 51 above. It did this in reliance on a line of decisions of this Tribunal and earlier disciplinary tribunals and committees.

55 There were 8 such decisions in this category which were analysed by the Tribunal in Bharati. They were: Colin Walter Peck, Unreported, Solicitors' Statutory Committee, 23 April 1981; Barry John Penfold [1997] NSWLST 23; Law Society of New South Wales v Green [2001] NSWADT 142; Law Society of New South Wales v Goold [2001] NSW ADT 171; Law Society of New South Wales v McCarthy [2003] NSWADT 198; Law Society of New South Wales v Witherdin [2004] NSWADT 264; Law Society of New South Wales v McNamara [2007] NSW ADT 162 and Law Society of New South Wales v Doherty (No.2) [2009] NSWADT 296.

56 Subsequently, Mr Pritchard contended that the matter of Law Society of New South Wales v English [2011] NSW ADT 39, heard by a Tribunal Panel which included Judicial Member Currie as presider, should also be considered as part of that line of disciplinary decisions, although it was not specifically referred to in Bharati.

57 As Mr Pritchard reminded the present Tribunal, the Tribunal Panel in Bharati had included one member of the present Tribunal: Judicial Member Currie.

58 Mr Pritchard contended that the approach of the Tribunal in Bharati and in particular its decision to follow the line of decisions and to prefer a more generous approach of permitting the solicitor to remain in practice under strict conditions, should be followed in the present case.

Medical, clinical and character evidence and the Respondent's relative inexperience

59 Mr Pritchard asserted that in many of the line of 8 cases cited above the relevant tribunal regarded the respondent's act of misappropriation as attributable to a misunderstanding, to inexperience, or to a genuine although mistaken view of the law (as in the matter of Green), rather than to greed or outright dishonesty

60 In respect of the medical and clinical professional reports are contained in or attached to the affidavits filed by the Respondent, Mr Pritchard submitted firstly that this evidence was largely consistent and corroborative of the Respondent's own lay perception of his circumstances. In Mr Pritchard's submission the medical and clinical evidence and the fact that the Respondent has obtained it demonstrate firstly that the Respondent appreciates his particular circumstances and has taken appropriate active steps to address the cause of those circumstances, in so far as the cause was constituted by medical or psychological conditions, and secondly that the professional evidence presents the Respondent as someone who is presently fit to remain on the Roll, (we assume Mr Pritchard meant in the medical sense), albeit subject to conditions and limitations.

61 In relation to the character evidence provided in support of the Respondent, Mr Pritchard submitted that the references are all favourable and that they address the critical issue in the proceedings, namely the need to protect the public from lawyers who lack the qualities essential to a proper performance of their professional duties. Mr Pritchard conceded that references carry more weight where the breaches of professional standards are minor and isolated (on the authority of the Foreman Case (1994) 34 NSWLR 408 at 444).However he said that the references can and should be given weight in the Respondent's situation because his misconduct does not involve repeated dishonesty, as was the case in Foreman.

62 Mr Pritchard also submitted that the character references demonstrate the Respondent's good standing in and contributions to the community and that the Respondent's standing in the community is very important to him.

63 Mr Pritchard emphasised in both his written and oral submissions that the respondent had risen from a poor and only partially-educated background to obtain qualifications in the law and that although at the time of the hearing he was almost 50 years of age he had actually only been in practice for about 5 years. The Respondent had attempted to establish and maintain practice in three separate locations but now acknowledged that the conduct of three separate offices was beyond him. In Mr Pritchard's submission the Respondent is entitled to be regarded by the Tribunal as a person relatively new to the profession and for that reason one deserving of the benefit of the doubt in relation to the imposition of the penalty. Mr Pritchard characterised the Respondent as being in a real sense a young or inexperienced practitioner to whom a degree of latitude may sometimes be allowed, on the authority of NSW Bar Association v Kalaf (NSW Court of Appeal, 11 October 1988), BC 8801429 at 1.

The Tribunal's analysis and decision as to penalty

The acts of deliberate dishonesty by the Respondent

64 The Tribunal's analysis of the issue of penalty must commence with an identification of the acts of deliberate dishonesty which were found to have been committed by the Respondent. This is so particularly because it was submitted on behalf of the Respondent that his acts of misconduct did not involve repeated dishonesty and should be regarded as a isolated occurrence.

65 The Tribunal is satisfied that, even on a construction of events favourable to the Respondent, the following acts of disk deliberate dishonesty by him were established in the principal proceedings and must be taken into account in considering penalty.

66 Firstly it is clear that the Respondent was deliberately dishonest in his direct dealings with his client Mr Malik. Quite apart from the actual acts involved in perpetrating the misappropriation (such as the preparation of the direction to pay on settlement, at the Respondent's personal direction) it is clear that the Respondent was deliberately dishonest in his accounting to Mr Malik.

67 Secondly the Respondent must have dishonestly held out to his employees who were involved in the preparation of the critical direction to pay, which was produced on the settlement of Mr Malik's sale, that it was proper to prepare the direction to pay on the basis that $12,000 from the proceeds should be paid to Permanent Custodians. There can be no doubt that these dishonest representations were deliberate.

68 Thirdly, the Respondent was deliberately dishonest in representations made to Ms Mercieca, a secretary in the office of the purchaser in that transaction. Ms Mercieca deposed that shortly before settlement she telephoned the Respondent and asked what the $12,000 was for and was told by the respondent: "My client authorised me to draw it." Ms Mercieca's evidence was accepted by the Tribunal in the principal proceedings (see paragraphs 23-26 of the Reasons for Judgment).

69 Fourthly, the Respondent was deliberately dishonest in what he said to Ms Hayden, the licensed conveyancer who was engaged shortly after settlement of the transaction to represent Mr Malik. When asked by Ms Hayden why the $12,000 had not been accounted to her client Mr Malik the Respondent said: "My secretary made a mistake and made a cheque out to someone else by mistake in the amount of $12,000." (Reasons for Judgment, paragraph 28).When Ms Hayden very sensibly challenged the Respondent on the veracity of that statement by replying "C'mon. You and I know that mistakes like that don't happen", the Respondent's response was again deliberately dishonest. He responded to the effect that he did not have the money and said "It was a mistake, she paid it to Permanent Custodians Limited". (Reasons for Judgment, paragraph 29)

70 It was only when he was again challenged by Ms Hayden as to where Permanent Custodians fitted into the transaction that the Respondent confessed that Permanent Custodians was his personal lender. But, critically, he added a further lie to that explanation by saying "it was put in my bank by mistake."(Reasons for Judgment, paragraph 29)

71 In the principal proceedings the Tribunal accepted Ms Hayden as an impressive and persuasive witness whose account was consistent and credible. (Reasons for Judgment paragraphs 27-30).

72 Fifthly, in relation to the Respondent's course of dealing with the Commissioner's inspectors, even on a construction of that long chain of events which is most favourable to the Respondent, it is clear that he made misleading statements and tendered misleading excuses to them in relation to the postponement of the inspection and audit of the Respondent's records. The Respondent's statements were held by the Tribunal to be deliberately obstructive (See paragraphs 52-64 and 71-73 of the Reasons for Judgment in the principal proceedings.)

73 Sixthly, the Respondent's conversation with Mr Collins and Ms Bedggood from the Commissioner's staff by telephone outside Bankstown Court on 1 February 2011 was accepted by the Tribunal in the principal proceedings as including an untrue statement. That untrue statement was in response to the question from Mr Collins to the Respondent as to what time he would be finished in court on that day. The note taken by Ms Bedggood, which was accepted by the Tribunal in the principal proceedings as accurate and reliable, indicated that the Respondent stated "that it would be very late around 4 or 5 PM." In the principal proceedings the Tribunal found that it was clear from the evidence that the Respondent was not committed to court for such a period that day.(Reasons for Judgment paragraphs 89-90, 106-107 and 110).

74 Finally, it must be noted that the Respondent appears to have maintained, at least until quite recently, the deception that the misappropriation of the $12,000 paid to Permanent Custodians in the Malik transaction was in some way due to an error by one or more of his staff members. In this regard we refer to the written report of Ms Elaine Ford, Nurse Practitioner, Counsellor and Psychotherapist dated 24 July 2013 which is annexed to her affidavit of 26 July 2013. The report includes the following includes the following passage:

"Now that (the Respondent is better equipped to manage his anxiety, he is able to develop a stronger argument that he believes will reassure the tribunal members that he had no intent in misleading or misappropriating funds, had attempted to remedy the misunderstanding immediately, terminated the employment of the staff member that made the error, and is taking steps to prevent this from occurring again." (Emphasis added)

75 It is most significant that this passage occurs in a description of Ms Ford's conversation with the Respondent on 23 July 2013. That is over 5 months after the publication of the Tribunal's Reasons for Judgment in the principal proceedings and only 6 days before the hearing as to penalty and other orders.

76 The clear implication from the quoted passage, and indeed the only possible interpretation of it, is that the Respondent continued until (at the earliest) a few days prior to the hearing as to penalty and other orders, to hold out to other people that the established misappropriation of client money was not his fault but was caused by a mistake by a staff member.

77 In its Reasons for Judgment in the principal proceedings the Tribunal found that, despite due allowance being made for the Respondent's halting, imprecise and at times rushed and unclear manner of expressing himself, he emerged as a patently unpersuasive witness who was at times evasive and that his evidence was such that in critical aspects it could not be accepted without clear and reliable corroboration. (Paragraph 42 of the Reasons for Judgment).

78 In light of the findings of the Tribunal in the principal proceedings and the repeated and apparently continuing instances of deliberate dishonesty outlined in paragraphs 64 to 76 above, the Tribunal is not persuaded by the contentions made on behalf of the Respondent that the Respondent's offence, or the dishonesty involved in it, is relatively minor in scope or that it should be accepted as an isolated occurrence or one which is an isolated blight on the Respondent's career.

79 The Tribunal is satisfied that the Respondent is guilty of repeated and sustained acts of deliberate dishonesty over a substantial period.

What effect should the Respondent's deliberate dishonesty have on his penalty?

80 The decision of His Honour Justice Mahoney in the leading case in the New South Wales Court of Appeal of Law Society of NSW v Foreman No.2 (1994) 34 NSWLR 408 ("Foreman") is regarded as a highly authoritative analysis of the concept of a practitioner's character, particularly as that can be assessed by reference to his or her acts of dishonesty.

81 In assessing the weight to be given to character evidence supporting the respondent in a case of this kind, His Honour began, at page 449B of his Judgment, with a warning that care must be taken in assessing the weight to be given to that evidence.

82 He then analysed character as involving, inter alia, two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. In His Honour's view:

"Character is tested not by what one does in good times but in bad."

83 In that case, Justice Mahoney was prepared to assume that the solicitor postulated for herself standards of an appropriate kind. That is, she was presumed to have accepted high standards of conduct. Unfortunately, in the present case the Tribunal is ultimately not persuaded on the basis of the evidence, particularly that of the Respondent's sustained deliberate dishonesty, that he has demonstrated his acceptance of the high standards of conduct required of legal practitioner.

84 In Foreman, Justice Mahoney noted that the character referees for the solicitor suggested that her default was, in their experience, out of character for her. Similar statements are made by most of the character witnesses in the current case. By analogy from Justice Mahoney's analysis, that leads to the assessment of the correctness of their judgment of the Respondent's character and of what can be expected of the Respondent in the future and in doing that it is necessary to assess the weight to be given to the predictions which the referees have made.

85 Justice Mahoney continued by observing that if, before the date of the occurrences of the misconduct, the respondent's character referees had been asked whether she would do what he had done, they would no doubt have said that he would not. Their judgment in that regard would have been wrong.

Significantly, in Justice Mahoney's view that conclusion has to be taken into account in assessing whether the judgment of the character referees is accurate.

86 The Tribunal adopts the analysis used by Justice Mahoney in Foreman. It concludes on the basis of that analysis that the judgment of the character referees of the Respondent is to be given very little weight.

87 In a recent article in the New South Wales Law Society Journal (February 14 pages 36-37) Professor Gino Dal Pont reaches a similar conclusion to Justice Mahoney in the Foreman Case as to the basic reason why the Courts insist that a lawyer's word must be trustworthy. He states that that is because the the Courts, clients, other lawyers and third parties generally usually proceed on the assumption that what a lawyer says can be trusted. Upon this assumption, the lawyer's statements are accepted without being questioned or subjected to immediate checking, verification or some form of due diligence. As Professor Dal Pont observes:

"Accordingly, without a robust disciplinary response to dishonesty in this regard, the assumption of a lawyer's trustworthiness may in some instances prove misplaced."

88 Professor Dal Pont goes on to postulate that there should be no distinction between situations where the lawyer's dishonesty is driven by his or her self-interest (and perhaps greed) and those in which no such self-interest can be established (for example a lawyer who makes a single false representation, perhaps outside the practice of the law).

89 On the basis of the established history of the Respondent's deliberate and dishonest actions and words and the unreliability of his own evidence the Tribunal is led to the conclusion that it should not hold out the Respondent as a person who is fit and proper to practice as a legal practitioner.

90 It must follow that the Respondent be removed from the Roll of practitioners, unless there is some clearly applicable ameliorating factor.

Are there any ameliorating factors which would justify a penalty and other than the Respondent's removal from the Roll?

91 It was submitted on behalf of the Respondent, as outlined above at paragraph 63, that the Tribunal should accept that because of the nature of his practice and because he had really only been in practice for approximately 5 years at the time of the alleged conduct, the Respondent should be treated as an inexperienced practitioner and some latitude should be extended to him, on the authority of NSW Bar Association v Kalaf (NSW Court of Appeal, 11 October 1988), BC 8801429 at 1.

92 We reject that submission for two reasons. Firstly we do not accept that the Respondent was in fact an inexperienced practitioner. Although he had only been admitted for some 5 years he appears to have had a busy practice in which he was the principal, operating out of 3 suburban offices. He certainly appears to have operated in a "high-pressure" and stressful manner. With the benefit of hindsight the Respondent might have become involved in legal practice on a more gradual route; one that perhaps imposed less pressure and stress upon him. However we do not think that it can be accurate to describe the Respondent as "inexperienced". If anything the pace at which he conducted his practice accelerated his experience. As a mature person it is likely that he was well placed to learn more rapidly from his experiences than a younger person may have been.

93 Secondly, the obligations which the Respondent has failed to meet are not in the nature of technical or procedural rules or practices. Rather, the Respondent has been found to have breached the very basic obligations of honesty and trustworthiness discussed in the major cases and particularly in the judgment of Handley JA in Foreman. These obligations are basic, not only in the sense that they facilitate transactions and business because a solicitor's word can be trusted (as discussed by Professor Dal Pont in paragraphs 83 and 84 above), but also in the sense that they cannot be "learnt" in the course of practice. Put another way, as was formulated in Council of the Law Society of the ACT and Legal Practitioner "S" [2012] ACAT 29 at [17], where the standards which the Respondent is found to have infringed involve fundamental principles of honesty and fair dealing and are "standards that all practitioners should regard as being intuitive, and not requiring to be committed to memory or being reinforced from time to time by a supervisor" then they are standards which should be upheld at the most elementary level, independently of work pressures, experience or supervision.

94 It was submitted by Mr Pritchard on behalf of the Respondent that the Tribunal should take into account the evidence as to the Respondent's wide range of involvement in the community, in particular in his own cultural and religious communities. We cannot see this as a factor which ameliorates the seriousness of the breaches fundamental professional obligations by the Respondent, or the seriousness of the consequences which must follow such breaches.

95 Mr Pritchard also relied upon the medical and other clinical professional evidence as presenting the Respondent as someone who is now presently fit to remain practising, subject to sensible limitations on his right to do so.

96 The medical evidence does demonstrate that the Respondent has been diagnosed with a degenerative spinal disease leading to chronic pain in his lumbar region. We were not persuaded (and indeed we do not think it was suggested) that this unfortunate condition was a direct cause of the course of deliberately dishonest conduct which the Respondent undertook. As this condition is, unfortunately, chronic, and although we have sympathy with the Respondent because of that, it cannot persuasively be asserted that the Respondent is permanently free of this condition. We do not see how the existence of this condition supports any argument that the Respondent is now a fit and proper person to remain on the Roll.

97 Significantly, it is also suggested that the Respondent had symptoms of anxiety and depression at relevant times and that these may have contributed to the way in which he undertook his practice. That is certainly the suggestion in Mr Watson-Munro's first report of 31 July 2012: see in particular paragraph 4 of that report. However two significant points arise from closer examination of the medical and clinical evidence on this subject.

98 Firstly, Mr Watson-Munro confirms in his later report dated 24 June 2013 that he has not re-examined the Respondent since his first report was prepared, but that Dr Keith Dawes was to provide psychometric testing and ongoing consultation and assistance to the Respondent. Indeed it seems to have been foreshadowed by Mr Watson Munro that these plans for continuing psychological oversight were an important part of permitting the Respondent to practice again.(In this regard see paragraph 5 of Mr Watson Munro's report of 31 July 2012 :annexure "A" to his affidavit). The Tribunal has nothing before it from Dr Dawes. It does have an affidavit from a psychiatrist, Dr Sharon Reutens and from a Nurse Practitioner, counsellor and psychotherapist, Ms Elaine Ford. Each of these professionals appears to have seen the Respondent only once. In short, the Tribunal has nothing before it to indicate that the Respondent has in fact continued a program of regular appropriate professional assistance of this nature.

99 Secondly, at the principal proceedings the Respondent, directly and through his Counsel, made much of the fact that he was suffering from symptoms of a depressive illness at relevant times during the course of conduct the subject of these proceedings. However, in the report of Dr Sharon Reutens Consulting Psychiatrist dated 25 June 2013 (annexure A to her affidavit), which relates to an examination of the Respondent on 17 June 2013, she concludes that the Respondent has not had a major depressive illness but rather that his symptoms were more likely to have developed as a result of bereavement at the loss of the family member and in reaction to a number of stressors. She includes "financial and work stresses". The condition can be characterised, in Dr Reuten's opinion as "an adjustment disorder with mixed anxiety and depressed mood" and not as depressive illness. Dr Reutens concludes that the Respondent no longer displays signs of this adjustment disorder.

100 The Tribunal accepts these conclusions and the reliability of Dr Reuten's' evidence.

101 Furthermore, the Tribunal is not satisfied on the basis of this medical evidence or the balance of the Respondent's evidence on this subject that his medical condition at the relevant times can be accepted as a justification or explanation for his serious breaches of his professional obligations.

102 Mr Pritchard on behalf of the Respondent also submitted that we should take into account the significant reputational damage which the Respondent has suffered within his community as a result of his breaches of his professional obligations, and as a result of the suspension of his practising certificate and the findings of this Tribunal in the principal proceedings. The Tribunal accepts that there is evidence that the Respondent has worked very hard over 5 or 6 years to establish a practice and that he has effectively lost this practice. He is currently bankrupt. The Tribunal has sympathy for the Respondent in this regard.

103 However it is well established that the jurisdiction being exercised in cases of this sort is not penal but disciplinary and that must be exercised for the benefit of the public. As His Honour Justice Handley expressed it in Dupal v Law Society of New South Wales, Unreported, 26 April 1990, BC 9002508 at page 22:

"Sympathy for (the Respondent) and for the tragedy that he is brought on himself and his family by his inability to live up to the high standards which (the Supreme Court) and the profession demands of solicitors cannot be allowed to deflect (the Tribunal) from doing its duty."

104 See also: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at

184 , in which the High Court held that the subjective impact of removal from the Roll and any hardship is not a relevant consideration.

Insight and contrition

105 Mr Beaumont on behalf of the Commissioner asserted that the Respondent has demonstrated no insight into the fact of his misconduct or its consequences, no insight or understanding of how his conduct has departed from the required standard of professional behaviour and no contrition for his misconduct.

106 Mr Pritchard on behalf of the Respondent on the other hand has asserted, firstly that "the Respondent fully understands his obligation as a former legal practitioner "and that "the Respondent feels contrite". These remarks were made in Mr Pritchard's second set of written submissions. Mr Pritchard also briefly addressed the issue of remorse or contrition in his oral submissions.

107 In those oral submissions Mr Pritchard invited the Tribunal to recognise that in the Respondent's case remorse or contrition was indicated by the Respondent demonstrating appreciation of the findings of the Tribunal in the consequences which follow from them. Mr Pritchard went on to indicate that the Respondent wanted the Tribunal to know that he appreciates that he has fallen below the standards required and accepts that there will be consequences .These statements were relatively brief and were made late in the proceedings (and of course, in saying that, we intend no criticism of Mr Pritchard)

108 However, the Tribunal did not hear at any stage directly from the Respondent himself any statement which indicated his understanding or insight into the seriousness of what he had done, or any statement whatsoever indicating clear remorse or contrition for the professional misconduct or for its consequences on others (as opposed to the consequences for the Respondent himself).

109 The Respondent had ample opportunity to do this. He was called to give oral evidence at the hearing as to penalty and other orders. He was examined and cross-examined. He said nothing to indicate insight or contrition as to the appropriate matters. He said a great deal about his current position and how he had suffered as a result of the suspension of his practising certificate, the commencement and hearing of these proceedings and the possible consequences to him of the orders the Tribunal. But he did not, except through his Counsel at a relatively late stage of the proceedings, go any way towards demonstrating appropriate insight or expressing appropriate contrition.

110 Distinguishing the present case from Bharati and other cited decisions

111 The Tribunal has carefully considered the decision and Reasons for Judgment in Council of the Law Society of New South Wales v Bharati [2010] NSW ADT 159 which for convenience of reference we will refer to as "Bharati", and the other 9 decisions raised in support of the Respondent's case and cited above at paragraph 53.

112 The Tribunal has concluded that each of those decisions can be distinguished from the present case. The two clear points of distinction are firstly that in most of those cases the relevant practitioner expressed a substantial degree of remorse or contrition and indicated to the relevant committee or tribunal his or her insight into the nature of the misconduct and the consequences which would flow.

113 The second point of distinction, again applying in most of those cases is that the relevant committee or tribunal was satisfied that at the time of hearing the good character of the respondent practitioner had been restored and that he or she was once again a fit and proper person to practice.

114 We shall begin with an analysis of Bharati itself. Briefly in that case the solicitor misappropriated trust funds of approximately $29,000. He was reprimanded and resumption of practice by him was made subject to conditions including that he could only practice as an employee, he was not to operate a trust account, he was to continue to comply with his medication regime in respect of his depressive illness confirmed by certification from his general practitioner, and his employer was to be advised of the orders and to acknowledge them.

115 Prior to the hearing, the practitioner had amended his pleadings to admit most of the breaches and the misappropriation of trust monies and at the hearing he admitted that the relevant monies had been used for his personal purposes that he expressed regret and contrition for that. The Tribunal could not be satisfied that the practitioner's answers to the initial questions of the investigator were a product of a dishonest or evasive intent and a charge of creating a false trust account receipt was held not to have been established.

116 It was accepted by the Tribunal that the practitioner was: "now (understanding) properly the legal requirement relating to the management of trust account funds by a solicitor". In short was established that the practitioner had insight.

117 It was also stated in the Reasons for Judgment that: "he deeply regrets what he has done... He acknowledges unreservedly that his conduct was wrongful. He (acknowledges) that his reputation, she has built up over many years... Has been tarnished beyond repair."

118 In Bharati the Tribunal also found that the practitioner's depressive illness was a substantial factor contributing to his misconduct but that the illness was in remission at the time of the hearing.

119 An analysis of the other 9 decisions cited by counsel for the Respondent demonstrates significant points of distinction from the present case.

120 In the matter of Colin Walter Peck, Unreported, Solicitors' Statutory Committee, 23 April 1981, the committee noted the solicitor's frankness with the Law Society and the fact that he had self-reported his misconduct immediately and it made note of his "contrite approach".

121 It is significant that in his judgment in the Dupal case in the Court of Appeal,(Unreported, 26 April 1990, BC 9002508 at pp 3-4), His Honour Justice Kirby noted that the normal course in such matters is a striking off order and he stated that to the extent that Peck suggested otherwise it was wrong.

122 In the matter of Barry John Penfold [1997] NSWLST 23, the solicitor paid a client's cheque for $6,000 into his personal account in circumstances where his firm was under financial pressure. $2,500 was used by him for the purposes of the firm and the remainder for his own benefit. The solicitor was suspended from practice for 2 years. The Legal Services Tribunal noted that the solicitor had made an early confession of his professional misconduct and had throughout expressed genuine remorse for his actions. The Tribunal based its decision on the fact that the solicitor was probably not permanently unfit to practice. In particular, the solicitor's character referees expressed a high regard for him and specifically for his continued integrity.

123 In Law Society of New South Wales v Green [2001] NSWADT 142; the solicitor had refused for 3 years to pay to counsel amounts received from his client for counsel's fees and had failed to comply with a statutory notice from the Law Society. He was reprimanded and fined $1000. He was suspended from practice until conditions imposed by the Law Society was satisfied on the subject to a regular trust account audit. In that matter the Legal Services Tribunal found the solicitor to have had a bona fide, if misconceived, concept of the operation of the statutory requirement concerning trust monies. The Tribunal held that whilst this fact did not deprive the solicitor's actions of the character of professional misconduct, it was "of some relevance on penalty and we have duly taken it into account".

124 In Law Society of New South Wales v Goold [2001] NSW ADT 171, the solicitor had misappropriated a cash sum of $1500 that a client had delivered to him to be deposited in his firm's account. It was held that he should not be struck off but should be permitted to continue in practice on a restricted basis and should pay a fine of $10,000. Significantly the Tribunal noted that the solicitor had impressed it as contrite and ashamed. The Tribunal also accepted character evidence given by the solicitor's partner which demonstrated that the solicitor's present character was such that he trusted the solicitor and that the solicitor had displayed maturity and humanity in his dealings. The Tribunal was satisfied that the solicitor's health was stabilised and that his family situation was also more stable. The Tribunal also took into account the solicitor's partner's description of the financial controls in place at the firm which, it was satisfied, would preclude any repetition of the offence.

125 In Law Society of New South Wales v McCarthy [2003] NSWADT 1983, the solicitor had misappropriated a client's payment which should have been remitted to counsel and used it for his own purposes for about a year. He was suspended from practice for 3 months and it was ordered that thereafter he would practice only as an employee. In that case the Tribunal could not be satisfied that the solicitor was contrite or that he had insight into his conduct. However it appears that the practitioner was nearing the end of his professional career and the Tribunal found that he should not be regarded as unfit to practice.

126 In Law Society of New South Wales v Witherdin [2004] NSWADT 264, the solicitor admitted that he had persuaded a client to substitute the solicitor's own name for that of the firm as the payee of a cheque for $3,000. He did this because he believed that other members of the firm with whom he was in dispute had failed to pay him money to which he was entitled. The solicitor admitted other instances of unsatisfactory professional conduct. The Tribunal suspended him from practice for 18 months. It made an order short of a striking off order on the ground that the intended victim of the misapplication of the cheque was not the client but other members of his firm. Significantly, the Tribunal accepted evidence to the effect that the solicitor's behaviour was entirely out of line with his normal behaviour and character. The Tribunal was satisfied that the solicitor had insight into the wrongfulness of what he had done.

127 In Law Society of New South Wales v McNamara [2007] NSW ADT 162, the solicitor engaged in a course of dishonest conduct over 10 months during which he misappropriated funds given to him in cash by clients on 24 separate occasions totalling $5227.50. The Tribunal suspended him from practice for 12 months and reviewed and restricted his right to practice thereafter. The Tribunal was impressed with the genuine remorse which the solicitor expressed an accepted that during the relevant period he received ongoing treatment for a depressive illness. It also took into account the fact that the solicitor had repaid the misappropriated funds from his own long service leave entitlement within 12 days of the end of the period of misappropriation. It also noted that he had been dismissed from the firm and was now practising permanently with the Public Service in a capacity where he would not be handling funds.

128 In Law Society of New South Wales v Doherty (No.2) [2009] NSWADT 296, the solicitor had misappropriated $35,000 from one client, had failed to account, had knowingly misled the client and had failed to hold the amount in a trust account exclusively for that client. He was suspended from practice for a period of one year and restrictive practice conditions were imposed for at least 6 years. The Tribunal accepted that the solicitor believed he had the authority to appropriate the $35,000 and the Tribunal could not find that this belief was fraudulent or ingenuine, even though it had no proper legal basis. It specifically stated that it could not conclude that the solicitor had embarked upon a course of action which was designed to deprive the client of his monies. The Tribunal took into account that the solicitor was effectively a novice in handling matters of the type involved, which apparently was a reasonably complicated joint-venture matter and that he did not fully understand the joint-venture contracts which he himself had prepared. The Tribunal was satisfied that the facts fell short of establishing that the solicitor was permanently unfit to practice.

129 In Law Society of New South Wales v English [2011] NSW ADT 39, the solicitor had misappropriated amounts due to counsel for fees and failed to account for amounts paid to him by various clients. A substantial total sum was involved. He had also misled the client as to an outcome in the District Court, had transferred sums from his trust account for the urgent payment of bills for his services which were patently excessive and had failed to comply with statutory notices from the Law Society. The Tribunal publicly reprimanded the solicitor and ordered that for a period of 3 years there be restrictions on his practising certificate which involved supervision, ongoing psychiatric reporting to the Law Society and ordered that the solicitor bring his employer's attention to these orders. He was also to have no access to any trust account and only limited access to professional mail.

130 Significantly, the Tribunal based its decision and orders partially on the full contrition and acceptance of his behaviour by the solicitor. The advocate for the Law Society at the hearing expressed the view that he had never seen a solicitor repay misappropriated sums in full and offer to recompense the clients so completely and promptly.

131 Secondly and equally significantly the Tribunal accepted the evidence of the solicitor's examining psychiatrists that he had had depression at the relevant time of the misconduct, that he had complied fully with his treatment and medication regime and that he was no longer affected by depression. There was strong medical evidence, which was accepted by the Tribunal, that the solicitor's misconduct had occurred because of his depressive illness and not through any basic lack of character.

132 Additionally in English there was strong character evidence tendered on behalf of the solicitor to the effect that his character had been restored and that he was fully capable of achieving the high standards of practice which he had achieved prior to suffering his depressive illness. In short, his character was now such that he was fit and proper person to continue practice. The Tribunal in that matter accepted this character evidence.

Conclusions

133 The Tribunal concludes that the Respondent has engaged in deliberate dishonesty. He does not pass the twofold test of character invoked in the judgment of His Honour Justice Mahoney in Foreman, namely the acceptance of high standards of conduct and acting in accordance with those standards under pressure. He has failed to demonstrate to the satisfaction of the Tribunal that at the hearing of this matter he understood what the high standards of conduct were or that he was capable of acting in accordance with them.

134 The Tribunal is also satisfied that there are no ameliorating factors which would cause it to consider it to be appropriate to permit the solicitor to continue in practice.

135 The Tribunal is satisfied that the case of Council of the Law Society of New South Wales v Bharati [2010] NSW ADT 159 and the other 9 decisions to which it was referred by counsel for the Respondent can be distinguished on their facts. In any case it is the view of this Tribunal that those cases must be read as subject to leading cases on professional misconduct and the right of a solicitor convicted of that to continue to practice in the New South Wales Court of Appeal and in particular the cases of Law Society of NSW v Foreman No.2 (1994) 34 NSWLR 408 and Dupal v Law Society of New South Wales, unreported, 26 April 1990, BC 9002508.

136 In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279, His Honour Chief Justice Spigelman explained why the "highest standards of integrity" are required of legal practitioners. He said:

"There are 4 interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people."

137 This Tribunal has concluded that the Respondent has failed and continues to fail to meet these high standards of integrity and that the Tribunal can only fulfil its obligations by ordering that the name of the Respondent be removed from the Roll and it will order accordingly.

(b)The compensation claim

138 The compensation claim against the Respondent was initially in the sum of $12,000.

139 At the principal proceedings the Tribunal found that amounts totalling $9,000 had been paid to the client on whose behalf the claims made.

140 In the early stages of the hearing as to penalty and other orders Mr Pritchard SC on behalf of the Respondent outlined the Respondent's efforts to subpoena relevant banking documents which the Respondent believed would establish that the balance of $3,000 had also been paid to the relevant client. It seems accepted that there were spelling errors in the subpoenas as originally prepared, filed and served. These involved miss-spelling the names of the holder of the relevant bank account. Subsequently after some delay, the Respondent sought leave for the issue of amended subpoenas to the same party and additional subpoenas to other parties. This leave was refused.

141 The Tribunal notes that the Respondent had had opportunities over approximately 2 years to procure evidence of the payment of this balance amount.

142 Having heard counsel for both parties on this point at the commencement of the hearing as to penalty and other orders, the Tribunal ordered that it would permit at this hearing further evidence to be tendered by the Respondent as to the repayment of the total amount of $12,000 subject to the limitation that no further subpoenas would be issued. The Tribunal also noted that to the extent that Mr Beaumont SC for the Commissioner would be prejudiced by short notice that this evidence would be adduced, the Tribunal would assign appropriate weight to the new evidence.

143 Ultimately, although the Respondent continued to assert that the full $12,000 had been paid no evidence was produced to the Tribunal to corroborate this assertion.

144 The Tribunal does not accept the uncorroborated assertions of the Respondent that he has paid the full $12,000.

145 It follows that respect of the compensation claim there will be an order that the Respondent pay to the claimant the outstanding balance being the sum of $3,000.

(c)Costs

146 Mr Pritchard SC on behalf of the Respondent submitted that there should not be an order that the Respondent pay all the costs of the Commissioner. He contended that instead, the Respondent ought to pay 60% of those costs, as agreed or assessed, and if the Tribunal were not to order the removal of the Respondent's name from the Roll, that amount ought to be 40%.

147 We understood Mr Pritchard to be making the submissions on the basis that of the original 5 Grounds specified in the Application, the Commissioner has ultimately succeeded only in respect of 3 grounds.

148 Mr Pritchard referred the Tribunal to the case of Council of the New South Wales Bar Association v Nash (No.2) [2013] NSW ADT 64. In that case, although the barrister was removed from the Roll, the Tribunal believed that in circumstances it was appropriate that she have some relief on the question of costs. Ultimately she was ordered to pay two thirds of the costs of the applicant, the Council of the Bar Association.

149 However the present Tribunal believes that the facts and decision in Nash No.2 can be distinguished from the present case because in Nash the Tribunal was satisfied that there was a very substantial amount of material prepared and considered by the respondent in that matter in relation to three of the complaints which were withdrawn at the commencement of the hearing. Things are quite different in this case.

150 Firstly, the Commissioner's Ground 5 was withdrawn, so far as the Tribunal can recall, on the day on which the matter was first listed the hearing, that is on 1 December 2011. The hearing on that day was aborted because of what the Respondent conceded was an inadequately prepared case for him. Ground 5 incurred therefore required no further professional time from that date. On that basis, no concession to the Respondent in respect of Ground 5 should be made.

151 In relation to Ground 2, (the allegation that the Respondent deliberately misled the Court about his whereabouts on 1 February 2011), it is true that the Respondent succeeded at the principal proceedings, in that, although the Tribunal was satisfied that the Court had in fact been misled, it did not believe that the source of the relevant misinformation could conclusively be traced back to the Respondent and accordingly the Ground was not made out.

152 However, it seems to the Tribunal that the evidence and indeed the legal work required to prepare and present the Respondent's case in respect of Ground 2 was inevitably linked, if not completely intertwined, with the work necessary to prepare and present his case in respect of Grounds 1 and 3, which dealt respectively with the allegations of obstructing or misleading an investigator and deliberately misleading the Commissioner about the Respondent's whereabouts on 1 February 2011. The Commissioner succeeded on both of those Grounds.

153 For these reasons we do not believe that this is an appropriate case in which the Respondent should have any relief of the question of costs.

154 It follows that the Respondent will be ordered to pay the costs of the Commissioner of this matter as agreed or assessed.

Other Orders

155 Given the considerable amount of record material which was made available on subpoena the purposes of the principal proceedings, and the fact that these documents were produced on subpoena at a relatively early stage of these lengthy proceedings, the Tribunal believes that it is appropriate to make a formal order that exhibits be returned. It will order accordingly.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 05 May 2014