Chief Commissioner of State Revenue v Mesiti

[2003] NSWADTAP 56

Appeal Panel - Internal

CITATION:	Portale v Law Society of New South Wales (No 2) (LSD) [2003] NSWADTAP 56
PARTIES:	APPELLANT Giuseppe Portale RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	019020
HEARING DATES:	30, 31/07/03
SUBMISSIONS CLOSED:	07/31/2003
DATE OF DECISION:	11/20/2003
DECISION UNDER APPEAL:	Law Society of New South Wales v Portale [2001] NSWADT 68
BEFORE:	Hogan A - Deputy President; Brennan JWF - Judicial Member; Hayes E - Member
CATCHWORDS:	Professional Misconduct - breach of s.61 of the Legal Professions Act - Professional Misconduct - fail to keep accounts - Professional Misconduct - misled client - Professional Misconduct - prefer own interests of those of others - Professional Misconduct - prepare false documents - Professional Misconduct - share the receipts of a ppractice with an unqualified person - Professional Misconduct - wilfully brech a court order
MATTER FOR DECISION:	Merits
FILE NUMBER UNDER APPEAL:	002003
DATE OF DECISION UNDER APPEAL:	05/04/2001
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Allinson v General Council of Medical Education and Registration. [1894] QBD 750 Briginshaw v Briginshaw (1938) 60 CLR 336
REPRESENTATION:	APPELLANT C Evatt, barrister RESPONDENT I M Wales, barrister
ORDERS:	1 That the name of Giuseppe Portale be removed from the roll of Legal Practitioners in New South Wales; 2 That the appellant pay the costs of the respondent to be agreed or as determined by the Tribunal

1 The appellant was admitted as a solicitor on 3 July 1987. He worked as an employed solicitor for almost six years, before commencing practice as a sole practitioner in April 1993.

2 On 9 March 1995 the Law Society cancelled his practising certificate, and appointed a receiver to his practice. Following a report by the receiver, the Law Society laid an information in the Legal Services Tribunal in August 1997. Proceedings on that information are no longer relevant.

3 On 24 February 2000 the Law Society laid in this Tribunal a second information, which is the subject of these present proceedings. Those proceedings were heard at first instance in November 2000, and on 4 May 2001 the Tribunal ordered that the appellant’s name be removed from the roll of Legal Practitioners and that he pay the costs of the Law Society.

4 On 16 May 2001 the appellant lodged an appeal from that decision, which was heard by an appeal panel on 30 November 2001.

5 That appeal panel published its decision on 7 March 2003. It held that the Tribunal at first instance had erred in law in a number of respects. It granted leave to the appellant to extend the appeal to the questions of fact identified in the Notice of Appeal and to a full review on the merits.

6 This panel, differently constituted, has heard the appeal on those questions of fact and on the merits, and this is the statement of its decision and reasons.

7 There is no suggestion that the appellant is in any way to blame for the inordinate delay in bringing these proceedings to finality. A large part, but not all, has been the result of the Law Society’s waiting for the decision of the High Court in Barwick. Insofar as delay has been occasioned within this Tribunal we regret it, and apologise for it. One result, however, is that in reaching our conclusion we must address the question of the appellant's fitness to practice, not only at the time of the events which are the subject of the information, but also at the present time.

8 At the hearing before this panel no further evidence was tendered. As we understood him, counsel for the appellant stated that his case was based on the evidence given before the Tribunal at first instance, and, to a large extent, on the facts as found by the Tribunal. Except for one matter, we have therefore set out our findings in the same order as those of the Tribunal, which are organised by reference to the particulars of the complaint. References in these reasons “AB” are to pages in the Appeal Books.

9 In order to understand the context in which most, if not all, the other offences found against the solicitor were committed, it is necessary first to deal with the state of his books of account. There was no objection raised at any time to the form of the complaint, and it is clear that there were two requirements of S. 62 that were involved. The solicitor did not contest the facts relating to the breaches, except so far as the extent of his wilfulness might be involved.

10 The particulars in the complaint were as follows:

“ The solicitor breached S. 62 of the Act in that he failed to write up or balance his books of account over long periods during which time it would not be possible to establish the true position concerning trust monies held on behalf of his clients nor were the accounts kept in a manner that enabled them to be conveniently and properly audited.

1. The trust bank account was opened on 7th April 1993.

2. The cashbook and bank reconciliation to 30th April 1993 was completed on 17th October 1994.

3. From 30th April 1993 up to 31st December 1993 the cashbook and bank reconciliation were completed and balanced between 31st December 1993 and 31st October 1994.

4. The entries for the period from 1st January 1994 to 30th June 1994 were made and the records balanced between 1st November 1994 and 10th November 1994.

5. The entries for the period from 1st July 1994 to 31st October 1994 were made and the records balanced between 17th November 1994 and 30th November 1994, and the period from 1st November 1994 to 30th November 1994 was completed on 6 December 1994.

6. At the date of the appointment of the receiver on 10th March 1995 the accounting records had not been balanced subsequent to 30th November 1994.

7. The regulations required a trial balance statement of all trust account ledger accounts to be prepared within 21 days of the end of each named month.

8. In the periods described in paragraphs numbered 2- 6 above, inclusive, by virtue of the trial balance statement not being prepared within the prescribed time, such trust account records as were maintained by the solicitor failed to disclose all times the true position in relation to money received by the solicitor on behalf of other persons, including the clients named herein.

9. In the periods described in paragraphs numbered 2 - 6 above, inclusive, by virtue of the trial balance statement not being prepared within the prescribed time, the accounting records maintained by the solicitor, including the records relating to the clients named herein, were not kept in a manner that enabled them to be conveniently and properly audited during the times delineated in paragraphs numbered 2 - 6 above, inclusive..

11 In his reply to the receiver's report, on 16 October 1995, the solicitor said, in effect,

“ These breaches are admitted, with the explanations given above. I submit that these were not wilful breaches but only due to my inexperience and the pressures of work. I did not intend to cause, nor did I actually cause, any harm or loss to any person in my actions."

12 In his affidavit sworn on 14 February 1998 he stated,

“ I concede that in the periods July 1994 - October 1994 and January 1995 - March 1995 my records were not kept properly and in accordance with the criteria prescribed by section 62."

13 In fact, an examination of the particulars and the evidence makes it clear that non-compliance extended over a much larger period than is covered by that concession. For example, the cashbook and bank reconciliation in respect of the period to 30 April 1993 was not completed until 17 October 1994. When the receiver was appointed, the records had not been balanced for a period that included December 1994 as well as January to March 1995. In the light of the material in the receiver's report and his own explanations, we find that non-compliance as detailed in the particulars is demonstrated on the evidence.

14 The affidavit continued:

“ In retrospect during the time I conducted my own practice, I was aware of and attempted to comply with the various prescriptions of the Act and the trust and similar regulations but I found this difficult having regard to the manner in which I practised and with difficulties in managing and employing suitable staff.”

15 He went on to detail his appreciation of his unsuitability for managing his practice, his depression, the difficulties involved in changing to a computerised system, his employment of a part-time bookkeeper, and the help that he received from the Law Society's trust account inspectors.

16 He concluded,

“Mistakes were made but these were not made with the intention or within the expectation that any client would suffer loss.

No doubt due to the delay in reconstituting the accounts onto the computer the Society decided to move to cancel my practising certificate and appoint a receiver."

17 We accept that there is no evidence that the solicitor intended to cause any loss to any client by his failure to set up and maintain his trust records in accordance with the law. But it is also clear from his own evidence that he knew what his obligations were. We find it necessary to return later in these reasons to his sworn evidence about that knowledge. Over the whole of the time covered by the particulars he knew that his records were not being kept in the manner required by the law. We are satisfied that the breaches were wilful. By S. 62(4) they amounted to professional misconduct.

18 Nor is it the whole truth to say that he did not cause any actual harm or loss to any person by his actions. As he stated in his affidavit, following the receiver’s report he was notified of claims on the Fidelity Fund by persons associated with the Francica claim. The evidence available to the Law Society did not enable it to prove that the circumstances giving rise to that claim amounted to the offences alleged in part B of the Particulars. Nevertheless, the Fidelity Fund admitted the claims made against it, and paid out $14,728.51. By February 1998 the solicitor had paid that sum to the Fidelity Fund, but it is misleading to say that no loss was caused when there has been a successful claim on the Fidelity Fund. The loss is mitigated by the repayment, but that does not mean that it had not occurred.

19 Further, as will be seen, on a number of occasions he received money for costs and disbursements, and paid them into his office account. At the time the receiver was appointed he had not paid the disbursements to the people entitled to them. At that time he was depriving them of money that was theirs. He paid it to them later, when the receiver’s investigations uncovered his failure. But that does not make it true to say that no one suffered any loss by his undoubted default.

Towler Estate (Wilful breach of S. 61(2); Prepare false document)

20 The receiver’s report discloses the following facts, which were not disputed.

21 On 19 April 1993 the solicitor received instructions from Mr John Pulella to act for him as executor of the Will of Daisy Victoria Towler deceased. He obtained probate of the will on 13 April 1994. He opened a trust Cash Management Account on 29 April 1994, into which monies of the estate were paid. Some expenses were paid from that account, in accordance with directions from Mr Pulella.

22 On 4 June 1994 Mr Pulella signed an authority, directing the solicitor to deduct from that account his costs and disbursements of $3,650.00, which the solicitor withdrew on 6 June 1994.

23 Meanwhile, on 1 June 1994, the sum of $5,244.52, being money belonging to the estate, was deposited into the solicitor's trust account, and was credited to the trust ledger account of the estate.

24 On 29 September 1994 the solicitor withdrew the sum of $5,244.52 from that trust ledger account, and deposited it to his office account. It is conceded that this disbursement was not in accordance with any direction of Mr Pulella.

25 The solicitor's file contained a draft Memorandum of Costs and Disbursements, dated 28/8/94, which included the following, "To our costs of and incidental to acting in relation to the above matter from our last account to you. $5,000.00. Disbursements. Miscellaneous expenses $300.00. Total Costs and Disbursements $5,300.00."

26 The file also contained a diary note, dated 28/8/94, which read, "T/A John- he said O.K. to be paid bal. of t/a/c monies of $5,300 for all extra work. ” There was then an illegible word, and the symbol ¼ with a circle around it.

27 In his affidavit the solicitor conceded that “the dealings with respect to the costs transfer of the "second" amount of costs was done recklessly, carelessly and without checking the file but believing at that time that I was entitled to the costs as rendered."

28 With respect to the documents in the file he deposed, "These notes represent matters I intended to raise with Mr. Pulella. The note was simply left in the papers. I have never represented that the conversation actually occurred nor have I ever sought to justify my action by the contents of the note."

29 The report of the receiver stated, "The file indicates that the solicitor could not possibly have carried out work from the date of the first bill of 6th June 1994 to 28th August 1994 at a cost of $5,000.00." In cross-examination the solicitor conceded that there was no significant work done in the estate after 4 June 1994.

30 Also in cross-examination the solicitor agreed that the fraction ¼ in a circle on a diary note would normally mean that the attendance had taken one-quarter of an hour, and would be kept for costing purposes, but insisted that it did not have that meaning in this case. He said that it was an estimate of the time such a conversation would have taken. He denied that he had deliberately prepared the false diary note to cover his tracks.

31 He insisted that he was not intending to charge for work done since sending the first bill, in June 1994. He simply saw from the trial balance that the money was in the account, and thought that he was entitled to it. He said that he had forgotten about the earlier bill, and made a mistake.

32 There are a number of inconsistencies in his evidence about his reasons for preparing a second bill. Other matters that we think are significant are that the amount of $5,000.00 bears no relationship to the value of work done for which he had been entitled to charge. (His original Bill had been for profit costs of $3,600.00) Disbursements had already been paid out of the Cash Management account, with proper authority. The sum of $300 was not commensurate with any reasonable estimate of disbursements. (In the first bill disbursements had been for miscellaneous items such as photocopying, postage, etc $50.) In the diary note the words “all extra work” are underlined, and are reflected in the draft memorandum in the hand written words "additional to our last account to you", which is inconsistent with his evidence that he thought that he was taking money for costs previously rendered. We do not accept that he had forgotten about the draft bill and diary note when he withdrew the money about a month later.

33 In summary we do not accept the explanations given by the solicitor about his reasons for disbursing this money from the trust account, and in our opinion the solicitor was not being truthful when he gave evidence about them.

34 The solicitor concedes that he contravened S. 61(2). He denies that his contravention was wilful. We are satisfied that the circumstances surrounding the contravention, particularly the false diary entry, the draft bill for unjustified costs, and the coincidence of the amount in the trust account with the amount unjustifiably charged in the draft bill, (even though it was never sent), make it quite clear that the contravention was in fact wilful. By S. 61(8) that wilful contravention is professional misconduct.

35 We are also satisfied that in preparing the diary note the solicitor was also guilty of preparing a false document, knowing it to be false. That conduct is also professional misconduct.

36 The false diary note was never published, nor was the associated unjustified bill of costs ever sent to the executor. Nevertheless there arises a compelling inference that at the time he took the money from trust he intended to appropriate to himself money that was not his. There is no evidence that had the matter not been discovered he ever intended to pay it back.

37 After the appointment of the receiver, and a demand made by the executor, the amount taken from trust was repaid with interest on 3 March 1995. In the final result, the Estate did not lose any money, and no one was in fact deceived by the false diary entry. Nevertheless, for a period of six months the solicitor had the use of money that was not his, and the estate did not have the protection afforded by S. 61(5).

Messrs Tan (Wilful breach of S. 61(1)).

38 The solicitor acted for Messrs Tan in respect of the purchase of a home unit and an associated mortgage. On 2 August 1993 he wrote to his clients and requested a bank cheque in the sum of $1,200.00 on account of costs and disbursements and $12,594.00 payable to the Office of State Revenue for stamp duty. Two bank cheques as requested were received from the clients, one in the sum of $1,200.00 payable to Portale Solicitors and the other in the sum of $12,594.00 payable to the Office of State Revenue. The cheques, totalling $13,794, were deposited to the solicitor's general account on 10 August 1993. The trial balance of the general ledger at 31 August 1993 shows that the total sum of $13,794.00 was credited to the capital account of the solicitor.

39 The deposit slip covering the deposit to the Office account shows the details for the cheque in the sum of $1,200.00. The details in respect of the second cheque in the sum of $12,594.00 have been deleted.

40 The stamp duty was paid from the Office account on 8 October 1993 in the sum of $12,594.00

41 In his affidavit the solicitor admitted that the cheque for stamp duty had been paid into his office account, whereas it should have been held as money in transit and paid directly to the Office Of State Revenue. He said that the payment was made mistakenly.

42 In cross-examination, however, he asserted that at the time that he paid the money into his bank account he did not fully understand that he was acting in breach of the Act. He claimed that he was naive and not experienced in these matters.

43 We do not believe that explanation. He had been an employed solicitor for six years, and had undertaken a course that dealt with trust accounting before embarking on practice on his own account. In fact, in other matters both before and afterwards he complied with the provisions of S.61. In paragraph 26(b) of his own affidavit (AB 493) he swore that he was aware of and attempted to comply with the various prescriptions of the Act and the trust and similar regulations. Those provisions are not arcane or peripheral. They are at the centre and forefront of any solicitor’s understanding of Trust Accounting. They are not mere matters of regulation. They give statutory force to what would follow from a solicitor’s fiduciary obligation in any event, namely to protect from any chance of loss moneys that the solicitor is holding on behalf of the client, and to ensure that the solicitor does not obtain any benefit from the relationship to which he or she is not entitled.

44 In further cross-examination the solicitor gave a confused, confusing and unconvincing explanation for the alterations made on the deposit slip. He denied that he had done it to conceal what had happened. As he pointed out, there was no point in attempting to do that because the transaction had already been entered into the accounting system. He was not clear about when he had made the alterations. It was something of a short time, maybe a month after the deposit. Nevertheless, the alteration points towards a realisation by him that there had been a non-compliance with the law. The inept attempt to hide the smoking gun does not suppress the smell of cordite.

45 We are satisfied to the requisite standard that at the time that he paid the money into his general account he knew that he was acting in breach of S. 61. His contravention was therefore wilful, and professional misconduct: (S. 61(8)).

46 The money was eventually paid to the proper recipient, and neither the client nor anyone else suffered any loss. Nor is there any evidence of an intention to defraud. Again, however, for some time the solicitor had the use of money that was not his, and the client was deprived of the protection of S. 61(5).

Cesar Petersen (Wilful breach of S. 61(1))

47 The solicitor acted for Mr Petersen in relation to a claim made against him by the GIO for damage to a motor vehicle. The claim was settled in the sum of $5,500.00, which amount was paid by the client to the solicitor in cash on 26 August 1993. The solicitor deposited the amount to his office account on that same date. On 20 September 1993 the solicitor drew a cheque on his office account in the sum of $5,500.00 in favour of the GIO, which he forwarded in settlement of the claim.

48 In his affidavit the solicitor admitted the facts, and said that his failure to pay the money into his trust account was "a mistake and an oversight". In cross-examination he said that he meant by that to suggest an explanation similar to that given in the previous matter. The events occurred at about the same time. However, he could not make clear whether he knew about his obligation, but forgot to comply with it, or did not know which money he was or was not obliged to pay into trust.

49 We would make the same comments as in respect of the Tan matter. We are satisfied that the breach was wilful. It constituted professional misconduct. Neither the client nor any other person suffered any loss. The solicitor had the use of the money for a short time.

Tonkin (Wilful breach of S. 61(2); Endeavouring to mislead client)

50 Mr Tonkin was a client with whom the solicitor had an arrangement for payment of his profit costs by vouchers drawn on the Sydney Trade Exchange (“STX”). The solicitor was not cross-examined about the significance of this, but the facts are plainly set out in the report of the administrator (AB 095 – 100) and responded to by the solicitor at pages 5 & 6 of his response to the report. (AB 613, 614). On 18 February 1994 he wrote to the client “to confirm your advice for the receipt of $1500 on account of future costs and disbursements. As in the past the transfer will be made using Sydney Trade Exchange vouchers”.

51 The solicitor admitted the facts stated at pages 48 & 49 of the report (AB 097-098). Those admitted facts are that the solicitor received from the client and paid into the trust account the sum of $1,000.00 on 25 January 1994 and $1,000.00 on 8 April 1994. Those funds were for the payment of counsel's fees. Counsel was paid $380.00 on 2 February 1994 and $690.00 on 14 April 1994, leaving a balance in the trust account of $930.00. On 15 July 1994 the solicitor drew a cheque for $930.00 on his trust account and deposited it to his office account. He had no authority from the client to do so. Breach of the section is admitted, but the solicitor claimed that it was not wilful.

52 On the same date as the payment the solicitor raised a bill of costs for $930.00, with no detail of the work in respect of which it was claimed. The amount was shown as paid. There is no evidence that the bill was sent to the client.

53 In his evidence the solicitor said that at the time he thought that he was entitled to the money for his costs.

54 On 10 August 1994, less than a month later, a letter was written to the client enclosing accounts received from counsel. The letter stated, “Note that we hold $930.00 for you in our trust account. The total of the two bills comes to $1,810.00 therefore the difference is $880.00. At your earliest convenience forward us a cheque for this amount." There was of course no sum of $930.00 in the trust account at that time.

55 The solicitor acknowledged that the letter was factually incorrect, but says that it was written by his employed solicitor, Mr Jafari, and that he was not aware at the time that it was sent in those terms. On its face the letter purports to have been sent by Mr Jafari, and there is no evidence that it was shown to the solicitor before it was sent. We are therefore not satisfied that the solicitor attempted to mislead the client by sending it.

56 The letter is, however, not consistent with the evidence given by the solicitor in cross-examination that his reason for thinking that he was entitled to costs was because Mr Jafari told him so. There was no mention in Mr Jafari’s letter of any outstanding amount for costs.

57 Also, during his cross-examination, he claimed that at the time he thought that once you bill a client, those costs could be banked into general. He was then asked, "And that you were then free to pay the disbursements which the client had paid via the bill when and if you chose?” He responded, “No, I could pay those later, as soon as possible later.” He later conceded that even in early 1994 he understood that it was wrong to put into his general account money given to him for specific disbursements and take as much time as he wanted to pay those disbursements. Asked why he did not pay counsel’s fees with the money he had been given he repeated that he thought that they were his costs. He did not give evidence of any satisfactory factual basis for forming that belief. Nor did he give any explanation why fees due were not to be dealt with by way of STX voucher, as arranged with the client.

58 Without any checking of the file, he raised a bill for the exact amount that he was transferring from trust, which he explained by saying that it was “for completeness”. We do not believe that evidence. We are persuaded by the surrounding circumstances that when he transferred that money he was at the very least recklessly careless whether it was a breach of his duty or not. The breach was wilful, and constituted professional misconduct.

59 The fees due to counsel were subsequently paid, partly from the solicitor’s moneys, but the solicitor had the use of them until payment. The client did not suffer any loss.

Ellis S & J (Misleading third parties)

60 The solicitor acted for Mr & Mrs Ellis in connection with their purchase of a property at Toongabbie. The purchase was to be financed by a loan from the St George Bank. There was a dispute about the form of the original contract, and the solicitor did work in connection with negotiating a fresh contract, with more favourable terms about the deposit, reducing it to $6,500.00, of which $500.00 had already been paid to the agent.

61 On 30 September 1994 the purchasers paid $800.00 to the solicitor, which was credited to the trust account, and on 11 October 1994 they paid the sum of $12,000.00, which was described as “on account of deposit”. That also was credited to their trust account balance. By 25 October 1994 the balance had been reduced to $12,583.00 by disbursements, and on that date the solicitor transferred $3,000.00 to his office account, for his costs in connection with the dispute, leaving a balance in trust of $9,583.00. A further payment of $5,000.00 was made from the trust account to the clients on 16 December 1994, for reasons that do not appear from the evidence, leaving a balance of $4,583.00.

62 On 20 December 1994 the solicitor received a fax from an officer of St George Bank called “Jane”, requesting confirmation that the purchasers had paid $7,000.00 deposit. The solicitor endorsed on the fax an instruction to his staff, “fax her a copy of Receipt #83 fr. Trust -$12,000- “. At that date the balance in that account was only $4,583.00. Confirmation of final approval of the loan by the Bank was sent to the clients and to the solicitor on 3 January 1995.

63 There were subsequent deposits to the trust account, by or on behalf of the clients, and the balance of deposit of $6,000.00 was subsequently paid on 27 January 1995.

64 The inference that arises from those facts, in the absence of explanation, is obvious, namely that the solicitor made a false statement to the Bank in order to ensure that the client would receive approval of the loan and the matter would proceed, after all the work that had been done.

65 The first explanation given by the solicitor was that in his reply to the receiver’s report, dated 16 October 1995. (AB 614, 726). That explanation was, "The reference to the $12,000 (paid by the clients on 11 October 1994) being “ on account of deposit" should in fact have been “ on account of settlement moneys""……… “ The file note referred to on page 62 was in connection with the $12,000 paid by the clients on 11th October 1994. I did not tell St George bank that $12,000 deposit had been paid, only that I had received that amount in trust."

66 In his affidavit sworn on 12 February 1998 the solicitor deposed, "I say if the Tribunal finds it has jurisdiction to deal with this matter that the representation to the St George bank was actually and factually correct and was not intended to mislead the bank or anyone else. The trust deposit receipt was sent as evidence of the deposit of funds. Part of those funds were subsequently deposited with the bank itself."

67 A statement to the bank that $12,000.00 had been paid into trust would have been factually correct, though possibly misleading without the further statement that about $7,500.00 had already been paid out of it. On its own it would not have been useful information for the bank in the light of the decision that it was obviously about to make. As a response to a request for confirmation that a deposit of $7,000.00 had been paid it was obviously misleading.

68 In his evidence (AB 725) the solicitor agreed that at that point he knew that the deposit had not been paid. He said that after the fax he told the bank that there was not $7,000.00 in the trust account. He claimed that that conversation was not included in his affidavit because his solicitor had not put it in. There is also no file note relating to it.

69 In further evidence he said, "No, by way of response I rang them back and I told them the situation. No, there has been no deposit, there has been no exchange except for a $500 holding deposit… I said I did receive at one point $12,000 in my trust account but that has been paid $5000 for the client to deposit at St George and some other disbursements… But I told her already that most of the moneys in the trust account had been disbursed.”

70 When asked about any other conversation with the bank about the transactions he responded, "I didn't tell them about the transactions in the trust account because that is confidential."

71 There was no evidence, oral or documentary, from the Bank. All that we could infer from that is that neither the Bank officer’s recollection nor the Bank’s records would have confirmed or controverted the solicitor’s evidence about the conversation. The absence of any contemporaneous file note, and of any reference to the content of the conversation in his response to the Report or in his affidavit gives his evidence about it all the marks of recent invention. In those circumstances, and in the light of the comments that we make later about the solicitor’s credit generally, we do not accept his evidence.

72 We find that his causing to be faxed the copy of the trust account receipt was indeed an attempt by the solicitor to mislead the Bank into accepting that the deposit had been paid, as a result of which it approved the loan. That conduct was professional misconduct. In the events that subsequently happened, the deposit was paid, and the Bank suffered no loss.

Bouradas (Wilful breach of S. 61(1))

73 While he was employed by Lyons & Lyons the solicitor acted for Mrs Bouradas in relation to a claim made against her by MLC about a mortgage. She was granted legal aid in relation to the litigation. The matter was completed while he was there, except for a final report and the assessment of party and party costs, which MLC had been persuaded to agree to pay.

74 When he went into practice on his own account he received instructions from Mrs Bouradas to complete the matter, and obtained a transfer of legal aid. He informed the Legal Aid Commission that he was authorised by Lyons & Lyons to submit an account in full on completion of the matter, and then by arrangement with that firm to attend to payment of their outstanding costs and disbursements.

75 MLC agreed to an assessment of party and party costs at $3,000.00

76 In a letter dated 8 December 1993, the Legal Aid Commission wrote to the solicitor as follows

“I confirm that the commission has no objection to the settlement of the outstanding question regarding party/party costs in the amount of $3000. Accordingly you are requested to contact Mr Rosser in order to finalise arrangements in relation to settlement of this issue. Please forward the amount to the Commission or retain the amount in your trust account pending finalisation of the accounting in the matter.”

77 The solicitor received from MLC a cheque for $3,000.00, dated 5 January 1994. On 6 January 1994 he deposited the cheque to the credit of an account with the Commonwealth bank in the name of Oliveri and Kwok Holdings Pty Ltd, a company in which he had an interest.

78 In his file, the solicitor raised a bill of costs addressed to the Commission in the sum of $3,000.00, for costs, with no disbursements. His file also contained a file note which read,

“T/A LAC – said $3000 c/d could be banked in general account for payment of account c/d.”

79 In his reply to the Receiver’s report, in October 1995, the solicitor had written,

“ On 6th January 1994, the day after I received the $3000 cheque, I rang the legal officer at the Legal Aid Commission ("the Commission") to advise that I had received the funds and to inquire as to what I could do with same. I was told that I could immediately apply the funds to reduction of my fees, and I did so.

I made a file note of the conversation and recall that I had it on the same day that I banked the funds. I do not recall the name of the commission's solicitor who was handling the matter.”

80 However, in a letter dated 18 January 1994, the Legal Aid Commission wrote,

“I note that the outstanding matter of costs has now been finalised. I confirm it would therefore be appropriate to render your Bill of Costs for assessment by the Commission. I note your correspondence of 17th November, 1993 which advises that you have arranged with Lyons and Lyons, solicitors that you will render the full Bill of Costs in the matter and will arrange to account to them for outstanding costs and disbursements.

When received the $3000.00 costs from MLC should be held in your trust account pending further direction from the commission."

81 The solicitor later submitted a Bill of Costs to the Legal Aid Commission for assessment. The Bill claimed profit costs of $10,245.11 and disbursements of $1,015. The Commission allowed profit costs at 80% of the amount claimed, being $8,196.09, and so informed the solicitor in a letter dated 19 September 1994. The letter also stated,

"You are authorised to retain the $3,000 costs held by you towards your costs and disbursements."

82 In his reply to the administrator’s report the solicitor said,

"I did not read the Commission's letter dated 18 January 1994, as I simply placed it in the file and did not notice the comments regarding the holding of the funds pending further directions from the commission.

Whilst on the surface it does appear that my file note is not consistent with the Commission's letter, it should be noted that my conversation took place some two weeks before I received the letter, and that in any case the Commission subsequently authorised me to retain the funds as per (the letter dated 19 September 1994).”

83 In cross-examination the solicitor insisted that he had received authorisation by phone before he banked the cheque. He could not remember the name of the officer. His file note did not identify the officer. He could not remember whether the officer was male or female.

84 When confronted with the letter of 18 January 1994, telling him to hold the money in his trust account, he at first responded,

“A. That's correct. I thought that letter was wrong and it was an error, but I ignored it."

85 It was suggested to him that he might have been expected to contact the Commission to point out that the letter was wrong, as he had already authority “from Mrs X or Mr Y to put the money in my general account.” He responded,

“A. Yes, I eventually got round to doing that.
Q. When did you do that?

A. Before the next letter came. I said to them----

Q. Who did you speak to?

A. I think it was Catherine Ridge.

------------

Q. When did you speak to Catherine Ridge about the confusion?

A. Before her next letter.

Q. Her next letter being the one of 19 September 1994?

A. Yes.”

86 The Legal Aid Commission’s file was tendered. Neither in that file nor in his own file could the solicitor point to any note of such a conversation with Catherine Ridge. There is a file note in the Commission’s file of a telephone conversation between Catherine Ridge and the solicitor on 16 September 1994, which records that she advised him of the assessment of his costs, of the need to advise about S. 46, that she would advise and requisition a cheque, and then recorded, “Has $3,000 in trust. Authorised him to use that. Send cheque for balance.”

87 We would make the comment that the whole story of his noting that the letter was wrong and having a conversation to correct it is hardly consistent with his earlier answer that he ignored it. Be that as it may be, it is certainly contrary to what he had said in his response to the Administrator’s report, namely, that he did not read the letter and placed it in the file and did not notice the comment about holding the funds pending further directions.

88 It is inherently improbable that, after written instructions had been given in December that the monies should be held in trust, instructions which reflected the legal relationships then involved, an officer of the Commission would give, on the telephone, authority to do otherwise, without making a contemporaneous note on the file.

89 It is also improbable that within two weeks of such a conversation, the Commission should again give explicit written instructions to hold the funds in trust.

90 The Bill of Costs that the solicitor raised in his file for $3,000.00 was an improbable document, in the light of the fact that he later assessed costs at over $10,000.00, and it made no mention of the substantial disbursements that had been incurred.

91 In that state of the evidence, it is hardly a criticism of the Law Society’s case that it did not call an officer of the Commission to give evidence. Which officer? The solicitor could not say. The Law Society tendered the Commission’s file, which contained only material inconsistent with the solicitor’s story.

92 We note, incidentally, that in his affidavit of 12 February 1998, when dealing with this complaint, the solicitor deposed

“ I say that, at the time I transferred the $3,000 from the trust account to my office account I believed and say the fact is that the legal aid Commission had authorised this transfer."

93 In fact, the money never was in his trust account, and was not transferred from it to general, but was paid into the account of a company in which the solicitor had an interest.

94 We simply do not believe the solicitor’s evidence. With full realisation of the gravity of such a finding, we are convinced that there was no conversation with an officer of the Commission authorising the solicitor to appropriate the money. The Bill of costs and the file note were part of a deliberate scheme to mislead.

95 We find that there was a breach of S. 61(1), that it was wilful, and that it constituted professional misconduct. There was no loss occasioned to any client or other person, and the solicitor later became entitled to the money.

Walton (Wilful Breach S 61(2); Prepare false document)

96 The solicitor acted for Mr Walton in respect of the purchase of a property at Woollahra. The client paid the sum of $900.00 to the solicitor on account of disbursements. Costs were to be paid by STX voucher. The transaction was settled on 16 September 1994.

97 The solicitor initially prepared a Bill of Costs dated 13 September 1994 in the sum of $2,200.00 for costs, and $322.00 for disbursements, totalling $2,522.00. He subsequently prepared a bill dated 16 September 1994, made up of $1,700.00 for costs and $328.00 for disbursements, totalling $2,028.00.

98 Sums of $198.00 and $130.00 were transferred out of trust to cover the disbursements, leaving an amount of $572.00 in trust.

99 On 6 October 1994 that sum of $572.00 was transferred to the office account. The solicitor raised a Bill of Costs dated 5 October 1994, headed “Re your purchase – 30 View St, Woollahra” itemised, “To our costs (additional) $500.00, Disbursements Miscellaneous expenses $72.00, Total Costs and Disbursements $572.00.”

100 The administrator stated in her report,

“The original bill is in the file and apparently was not sent to Mr Walton.

There is no indication that there was any further work done or any further moneys due to Mr Portale after the purchase was settled on 16 September 1994.

There is a file note written by Mr Portale dated 5th October 1994 which states as follows:-

“T/A Henry – OK to apply t/a/c funds towards o/s c/d today”

101 On the one hand, she then calculated that the sum of $900.00 was due to Mr Walton, but on the basis that $2,028.00 had been paid through STX. On the other hand, she stated that

“The Bill of Costs in the sum of $2,028.00 was not brought to account in the Debtor's Ledger, nor was the payment of the Bill made through the Sydney Trade Exchange."

102 After settlement a Memorandum of Costs and Disbursements was sent to the client together with the report on settlement dated 19 September 1994. We assume that it would have been a Bill for $2,028.00.

103 There is annexed to the report of the administrator a copy of the combined Office and Trust Ledger Account of Mr Walton. There is no entry there of any payment of $2028.00.

104 In his reply to the report the solicitor stated

“The reduction shown in the second bill (dated 16th September 1994) was due to the client insisting on a discount, which my employed solicitor, Marcus Jafari (who was handling the matter) told me the client was demanding.

The bill dated 16 October 1994 was in respect of a proposed purchase, the subject of per Annexure “J1” and “J2” hereto.

The file note of the conversation on 5th October 1994 was written by me after Marcus Jaffari had related to me a phone conversation he had with the client. I did not myself speak to the client on that day. I do not believe I owe the client anything.”

105 Annexure J1 to his reply is a copy of a letter from Norton Smith and Co dated 21 June 1995 about the sale of a property at Grafton Street Bondi Junction to Mr Walton. Annexure J2 appears to be a copy of a Ledger account in the name of Mr Walton on which no financial transactions had taken place. There are not sufficient details upon it to enable it to be identified with any particular transaction.

106 In his affidavit of 12 February 1998 the solicitor deposed,

“(b)… I say that I had actual authority by the client directly represented by the file note dated 5 October 1994 to transfer funds from the trust account to my office account in respect of costs. I say that I had the client's actual authority and I deny that this authority or the note of it was false or that it represented a breach of section 61 of the Legal Profession Act.

(c) The record of the conversation in the file I believe to be a correct record of a conversation between the former client Mr Walton and my then employed solicitor or a member of my staff.”

107 In cross-examination the solicitor adhered to his evidence that there had been two transactions, and that the $572.00 remaining in trust related to costs and disbursements on the proposed purchase at Bondi Junction. He acknowledged that the heading on the Bill he prepared was not consistent with that evidence, and that $72.00 for disbursements could not be demonstrated. He claimed that it was an estimate. He could not be sure whether the conversation recorded in the file note was with Mr Jaffari or a secretary.

108 There was no evidence from Mr Walton or Mr Jaffari. Despite the suspicions to which the matters raised in cross-examination rightly give rise, it is possible that there was a second transaction, and that the client could have agreed to allow the balance in trust to be used for costs in connection with it. In the absence of direct evidence to the contrary, we are not satisfied to the requisite standard that this particular breach is made out. A case might have been made for some other offence or offences in connection with this particular transaction, but the solicitor was not charged with any.

Mr & Mrs G Tan (Wilful Breach S 61(1))

109 The solicitor acted for Mr and Mrs Tan in a dispute concerning a lease. On 18 August 1993 he sent to the clients a Bill in the sum of $6,879.50, made up of $3,875.00 for profit costs, $374.50.disbursements and $2,630.00 for barristers’ fees. At that time counsel had not been paid.

110 The clients had paid the sum of $2,000.00 in advance on 28 June 1993. That sum was transferred from the trust account to general account on 23 August 1993. Between 1 September 1993 and 3 March 1994 the clients paid an additional sum of $6,879.50 in five instalments. Each of those instalments were deposited directly to the general account of the solicitor. The solicitor had no instructions or authority to deposit the funds to his general account.

111 At the date of the Administrator’s report, counsel had not been paid. In his reply to the report, and in his affidavit, the solicitor admitted the facts, but did not admit that his conduct was a breach of S. 61. He stated that all monies due to counsel were paid, the final instalment being paid on 10 July 1995. He was not cross-examined in detail about this transaction, as he had dealt with his understanding of his obligations under this section in connection with other complaints.

112 We find that the failure to comply with S. 61(1) was wilful, and was professional misconduct. No loss was occasioned to the client or any other person, but the solicitor had for a time the use of money to which he was not entitled.

S. Khoury (Wilful Breach S. 61(1))

113 The solicitor acted for Mr Khoury in a workers compensation claim, which was determined by an award in favour of the client made by the Compensation Court on 21 April 1994.

114 The insurer agreed to pay party and party costs totalling $6,734.00. That amount included $1,126.00 which was due to the client, $1,133.00 which was due to counsel, and $1,800.00 which was due to another firm of solicitors from whom Mr Portale had taken over conduct of the claim.

115 On 22 July 1994 the solicitor received a cheque from the insurer for $6,734.00. He deposited it to his office account. He had no instructions or authority to do so. He did not pay the $1,126.00 to the client until 30 January 1995. He did not pay the $1,133.00 to counsel until 12 January 1995. He did not pay the $1,800.00 to the other solicitors until 2 March 1995.

116 In his reply to the report the solicitor admitted the facts, except the allegation that he did not have authority to deposit the funds to his general account. He stated that “No breach of S. 61 is admitted”. He did not then, nor did he ever, condescend upon particulars of any authority that he might claim to have possessed. Even in a common law pleading such a statement of non-admission would be treated as evasive. But common law traverses have no place in a practitioner’s response to a report setting out particulars of professional misconduct. The practitioner is under an obligation to give a full, frank and truthful response.

117 In his affidavit he deposed,

“(a) I admit that funds were received by me in respect of costs and disbursements which included monies advanced by the client and due to the client’s former solicitors. I admit that these funds were paid into my office account and that some time later funds were paid to the client and to the former solicitors. At the time of the deposit I was not informed that the payment also represented disbursements.

(b) I do not admit that this represents a breach of section 61 of the Legal Profession Act.”

118 With respect to that last sworn refusal to admit a breach of the Act we note that the receiver was appointed in March 1995, the solicitor responded to her report in October 1995, and his affidavit was sworn in February 1998. Even if we were to accept that his knowledge of his obligations with respect to clients’ monies was deficient while he was in practice (which we do not), we would find it even more incredible that he still did not recognise them nearly three years later, during all which time these proceedings were pending.

119 We think that a far more likely explanation is that even then, and still, the solicitor has failed to admit and fully to face up to the seriousness of his conduct.

120 The breach of the section is clearly proven. We find that it was wilful. It constituted professional misconduct. No loss was occasioned to the client or to any other person, but the solicitor had the use of money to which he was not entitled for a substantial period of time.

Hanna (Preferring own interests)

121 The solicitor acted for Mr Hanna in criminal proceedings. He employed local solicitors as his agent to appear on a number of occasions at Liverpool court. Their fees were $370.00. He briefed counsel to appear on the hearing, his fees amounting to $1,050.00. The solicitor requested progressive payments from the client. The client made 4 payments, which totalled $1,300.00. As they were received, the solicitor deposited them to his office account.

122 In August 1994 the client instructed other solicitors, and Mr Portale rendered a final bill for $2,565.00, which included $1,000.00 for profit costs, the fees due to counsel and the agents, and some internal disbursements. After deduction of the costs already paid, the amount due was $1,265.00. The client made no further payments. In the result, at the date of the receiver’s report, all the monies received from the client had been allocated to profit costs, while counsel and the agents remained unpaid.

123 In his reply to the report, the solicitor said,

”I overlooked the payment of these disbursements. I did not have the carriage of this matter.

Counsel’s fees have been paid, as per Annexure “K” hereto, and I have now paid my agent’s fees, as per Annexure “L” hereto.”

124 The annexures show that the agents were paid $370.00 on 17 July 1995, and counsel’s fees, reduced by him to $700.00 for reasons which do not appear in the evidence, were paid on 10 July 1995.

125 In his affidavit the solicitor deposed,

“I do not consider that this matter is properly referred to the tribunal. If the tribunal finds that it is, I say:-

(a) that the counsel's and agent’s fees have been paid by me after the appointment of the receiver.

(b) that in the circumstances the action complained of does not represent misconduct on my part.

126 The funds received by the solicitor for counsel’s fees and agent’s fees were not paid to him in order that he might use them for as long as he might wish. For as long as they were unpaid he was using money that was not his, and which belonged to them. In cross-examination he seemed to persist in his contention that he had done no wrong. The fact that they were paid after the receiver was appointed, as we have already said, does not alter the fact that at the date of the appointment he was preferring his own financial benefit to the obligation to pay the moneys to those to whom it belonged. On any view, that is disgraceful conduct, amounting to professional misconduct.

C & E Chadaeng (Wilful breach S. 61(1))

127 The following allegations made in the information were admitted.

-The solicitor acted for Mr & Mrs Chadaeng in respect of a proposed purchase of property at Canley Heights.

-The solicitor, on or before 23 April 1993, received from Mr & Mrs Chaedang $500 in cash.

-The $500 was not deposited to the solicitor’s trust account.

-On 23 April 1993 the solicitor rendered Mr & Mrs Chadaeng a bill in the sum of $500 which included $165 for a building inspector’s report.

-At the time that the bill was sent, the fee for the building inspection report had not been paid and was not paid until 23 July 1993.

-The solicitor acted for Mr & Mrs Chadaeng in respect of a purchase from Chahine of property known as 312 Brennan St Smithfield.

-On 8 April 1993 Mr & Mrs Chadaeng paid the solicitor $200 in cash on account of costs and disbursements.

-The solicitor did not bank this amount into his trust account.

-The solicitor rendered a bill of costs dated 26 May 1993 which gave credit for the sum of $200 paid on 30 April 1993, claimed interim profit costs of $200 and claimed disbursements of $850. The client paid the balance due on this bill on or about 27 May 1993. Of the disbursements totalling $850, an amount of $242.90 was paid from the general account on 30 April 1993. No other disbursements were paid until a survey report was paid on 21 January 1994 in the sum of $295. The solicitor failed to pay the sum of $366.20 either in payment of the balance of disbursements claimed in his bill or by way of refund to Mr and Mrs Chadaeng.

128 In answer to the allegation that the $500 was not deposited to the solicitor’s trust account, and that the solicitor had no instructions or authority to deposit funds other than into his trust account, he answered in his reply to the complaint, dated 11 September 2000,

“Particular 3 is not admitted on the question of authority. The solicitor says he was entitled to pay the cash with his office account (sic) as the money was on account of costs and disbursements.”

129 However, in his reply to the Receiver’s report, dated 16 October 1995, he had stated,

“The failure to bank the monies to either general or trust was an error. The client suffered no prejudice.

The delay in paying the builder’s account was an oversight.

The client was given credit for the $200.00 cash received by way of paying the bill of the same amount.

I believe I have in fact paid for the pest and building reports referred to on page 113.”

130 There was no cross-examination directed specifically to this matter. The solicitor’s so called belief that he was entitled to pay money directly into his office account so long as he had rendered an account to the client (even when it included sums for disbursements) was dealt with in connection with other matters. The failure to comply with S. 61(1) is clear. We are satisfied that the failure was wilful. It constituted professional misconduct. The solicitor had the use of money to which he was not entitled for a considerable time, and there was a failure to account for $366.20.

M A & J C Freixas (Wilful Breach S. 61(1))

131 The following allegations in the complaint were admitted by the reply

-The solicitor acted for Mr and Mrs Freixas in respect of the purchase of property at 16 Fowler Street Leichardt.

-On 3 August 1993, the solicitor received the sum of $2,375 in cash from Mr and Mrs Freixas for the payment of stamp duty. This amount was banked into his general account. The solicitor had no instructions or authority to deposit the funds to his general account.

-Stamp duty was not paid by the solicitor until 27 August 1993, when a cheque was drawn on the office account in the sum of $2,377.

132 The reply admitted a breach of section 61, “ on the basis that the deposit was careless."

133 In his affidavit of 12 February 1998 the solicitor deposed,

“I concede that the cash for the stamp duty should have been paid into my trust account, was mistakenly and carelessly paid into my office account which was used to fund the payment of the stamp duty on the contract. The wrong deposit book was used."

134 The solicitor was not cross-examined about this allegation. In the light of the evidence about the general standard of his bookkeeping it is possible that a mistake was made. We are not satisfied to the requisite standard that the breach was wilful. It constituted, however, unsatisfactory professional conduct. The client did not suffer any loss, but the solicitor had the use of money to which he was not entitled for a little over three weeks.

Immigration Matters (Sharing Receipts with Unqualified Person. S. 119(1))

135 The solicitor was a registered immigration agent. A room in his office suite was occupied by one Abelardo Miranda, known as “Abel”. Mr Miranda described himself as an “Immigration Consultant”, although he was not a registered agent. He was not an employee of the solicitor.

136 The receiver’s report detailed a number of financial transactions in the solicitor’s records relating to what appeared to be immigration matters.

137 The first related to the solicitor’s acting for a Mr Yutisri, a restaurant proprietor, who wanted to sponsor a Thai chef to work in his restaurant on a temporary resident basis. His file note to open the file directed his staff to then give the matter to “Abel”, and requested Abel to attend to the matter urgently.

138 Mr Miranda then conducted correspondence with the Department on the solicitor’s letterhead, signing correspondence under the firm name “per A Miranda.”

139 Subsequently, the solicitor received $2,000.00 for costs and disbursements, of which $400.00 was paid to Mr Miranda on 5 November 1993, by cheque payable to cash.

140 The report then detailed a number of instances where amounts were paid into the office account from various sources, and were credited to various clients. There were no files held by the solicitor in relation to those clients. The receiver also received correspondence from the Department of Immigration concerning clients in respect of whom the solicitor had no files, and no ledger entries.

141 The accounts showed that various amounts were paid to Mr Miranda by cheques payable to cash, sometimes receipted on the butt by Mr Miranda. Omitting those reported as being for filing fees the clients and amounts paid were as follows;

Kim 5 November 1993 $200

Igmat 18 November 1993 $240

19 November 1993 $370

Habis 18 November 1993 $240

Manese 18 November 1993 $240

Alba 18 November 1993 $240

Antonio 19 November 1993 $370

142 In his response to the report the solicitor claimed that he had never authorised Mr Miranda to sign any correspondence in his name. He said that Mr Miranda would raise his own file, and send it to the solicitor to do the necessary work. The files were returned to Mr Miranda. He claimed that the amounts paid in respect of Kim and Manese were for “administrative assistance”. “They definitely were not commission.” The amounts in respect of Igmat, Habis, Alba and Antonio, he claimed, Mr Miranda received on his own behalf, without any reference to him.

143 Another amount that he said was received by Mr Miranda on his own account and without reference to him was that of Manese, referred to at p.120, para 2 of the report. (AB 169). A sum of $1,000.00 was received from the client on 28 October 1993, and was deposited to the office account. We suppose that a deposit could be made to his office account without his knowledge. But a filing fee was paid to the Department of Immigration by office account cheque dated 3 November 1993. It stretches credulity to accept that cheques could be drawn on his office account without his knowledge. These questions were not addressed in cross-examination, however, probably because of a change in the solicitor’s strategy at the hearing at first instance.

144 In his affidavit (AB 493) he deposed that from time to time he had potential clients referred by Mr Miranda, and they instructed him (Portale) to act in respect of immigration matters. So far as he could recall most were of Filipino origin.

145 He said,

(a) “From time to time I would pay Mr Miranda a fee representing the time he spent in translating work and assisting the clients who were not bilingual complete various immigration forms.

(b) During the relevant period I was a registered immigration agent.

(c) I do not believe that I shared receipts with Mr Miranda and I deny that there is any evidence of improper conduct on my part.”

146 In cross-examination, however, he conceded that he and Mr Miranda were in fact involved in a profit sharing agreement. He said that he had only recently discovered that fact, on advice from his solicitors. He said that at the time he did not know that it was wrong, but that he now knew that it was. When asked whether Mr Miranda was an employee, he prevaricated about the meaning of the word. (It was the word he had used in his own affidavit.) His claim that Mr Miranda was paid for translating services was demonstrated to be wrong, because two of the clients were not Filipino.

147 In re-examination it was made clear that clients paid money for fees in immigration matters, some of which he gave to Mr Miranda. He said, “Well, he had to support himself. He can’t work for free.”

148 It is obvious that the advice he received from his solicitors was well founded. There was no chance that the Tribunal would accept that he had not been sharing receipts. That is so obvious that we doubt that even the appellant himself ever believed it, and that at all times he knew that he was sharing receipts.

149 Before this panel, however, for the first time, the objection was taken that the legislation in force at the time (November 1993) did not prohibit the sharing of receipts in these circumstances. That legislation was S. 119 of the Legal Profession Act 1987, which provided that it is professional misconduct for a solicitor to share with another person the receipts “of a business of the kind usually carried on by a solicitor” unless the other person holds a practising certificate or the Law Society has consented.

150 The Migration Act 1958 (Cth) makes a distinction between “immigration assistance” (S. 276), and “immigration legal assistance” (S. 277). There is no evidence that the work being done for these immigration clients was immigration legal assistance.

151 By S. 280(1), “Subject to this section, a person who is not a registered agent must not give immigration assistance.”

152 By S. 280(3) “This section does not prohibit a lawyer from giving immigration legal assistance.”

153 It follows that, unless it is immigration legal assistance, a lawyer may not give immigration assistance merely by force of being a solicitor. The giving of immigration assistance is not “business of the kind usually conducted by a solicitor”. Mr Portale was carrying it on, insofar as it was he and not Mr Miranda who was doing so, by virtue of his registration as a migration agent, not by virtue of his practising as a solicitor. We therefore uphold the objection, and this particular complaint is dismissed.

154 The incidents are significant, however, because of the light that the evidence about them casts on the solicitor’s credit.

Appropriate Order

155 In summary therefore, the solicitor was in practice on his own account for slightly less than two years. Over a substantial part of that time he was guilty of professional misconduct in that in two respects he did not keep proper books of account.

156 There have been proven 11 instances of professional misconduct in that relatively short period of time. They were: 6 instances of wilful failure to pay money into trust (Tan, Petersen, Bouradas, Mr & Mrs Tan, Khoury and Chadaeng), 2 instances of wilfully withdrawing money from trust without authority (Towler, Tonkin), 1 case of preparing a false document (Towler), 1 of misleading a third party (Ellis) and one of preferring his own interest (Hanna). There was one instance of unsatisfactory professional conduct in a failure to pay money into trust (Freixas).

157 In his second affidavit, sworn on 17 November 2000, the solicitor referred to his endeavours to explain his conduct in his previous affidavit. He continued,

“My explanations do not purport to justify or excuse what I have done. My conduct has been unjustifiable and inexcusable.

I recognise the serious nature of the complaints and I recognise that my conduct was deficient and below the recognised standards.”

158 In mitigation, it was submitted on his behalf that he had admitted to all but a few of the offences alleged against him. That is not quite an accurate summary. He admitted, in general, the incontrovertible physical facts, but as is set out in the detailed findings above, he usually sought to avoid the consequences by some such excuse as that:

-it was not wilful (Failure to keep proper books, Tonkin, Mr & Mrs Tan, Khoury;

-it was only carelessness (Towler, Bouradas, Hanna, Freixas)

-I was naïve and inexperienced (Tan, Petersen, Chadaeng).

159 A full and frank admission of an offence will often be an important consideration in mitigation of penalty, particularly when striking off is not really an issue. It is not necessary to consider its real relevance in this case, however, because that is not an accurate description of the solicitor’s response.

160 Even had his explanations been accepted, it would still have been right for him to admit that his conduct was unjustifiable and inexcusable. In the light of our findings, it is obvious that, overall, and apart from statutory provisions, it was disgraceful, as that concept is used in Allinson v General Council of Medical Education and Registration [1894] QBD 750.

161 The solicitor does not seek a return of a full practising certificate. He asks that he be allowed to return to practice under supervision.

162 We note the long period of time for which the solicitor has now been excluded from practice. He has completed courses of further study, including in Legal Ethics and Trust Accounting. He has performed volunteer community assistance work at the Welfare Rights Centre and the Marrickville Legal Centre.

163 He has incurred large expenses, exceeding $100,000, in meeting the costs of the receiver and in legal fees, as well as meeting his obligation to repay the Fidelity Fund and the various disbursements that were outstanding at the time the receiver was appointed. Fees owing to him at the time the receiver was appointed have not been recovered. (There is no evidence about how he managed to deal with such large sums while working mainly as a taxi cab driver). He has been shamed in the eyes of his family and community.

164 There are also tendered ten written references, two being from family members, one from a barrister who has known the solicitor for ten years, and seven from solicitors who have known and dealt with him for periods between 4 and 13 years. The force of many of them is lessened by the repetition in each of a verbal formula along the following lines,

“He has told me that his failure to keep proper accounts and records was his own fault and now recognises that he was too lax, disorganised and engaged in improper conduct.

He has told me that he had no real excuse for not paying his bills on time or paying himself before he paid other people, except that his records were in a mess.

He recognises that he was too young and immature to have commenced practice by himself when he did and feels that he should have remained working with a more experienced practitioner for longer.

In my opinion Mr Portale has learned much from his mistakes, the hard way. I note that he has not worked as a solicitor for more than six years.”

165 In the light of the findings that we have made, that statement does not fully set out the extent to which the solicitor’s conduct fell short of proper standards. The statement by his former employer, Lyons & Lyons, that, “I have always found him to be honest, trustworthy and reliable” is also difficult to reconcile with the correspondence about the Bouradas matter, set out at pp 95 to 98 of the receiver’s report (AB 144-147).

166 We have already noted, when dealing with each complaint, that, except in the Towler Estate matter (para 38 above), there was no evidence that the solicitor ever set out deliberately to cause loss to any client or any other person, and we are also aware that eventually all monies due to any client or other person have been paid.

167 All those considerations are however outweighed by the findings that we have been forced to make about the solicitor’s honesty.

168 The tribunal at first instance had the benefit of observing the solicitor in the witness box. We did not have that advantage. We do not take into account the comments made about the solicitor’s credibility in the tribunal’s reasons. We have had to form our own view of the solicitor’s credibility from the internal evidence of the documents and from the written transcript of evidence. We have applied the standard of proof prescribed in Briginshaw v Briginshaw (1938) 60 CLR 336.

169 In addition to the findings that he prepared a false document, (para 37), and misled a third party, (paras 77, 78), we have also concluded that on a number of occasions we have been unable to accept his evidence. Those occasions were:

-S. 62 paras 19, 20
-Towler paras 34, 35

-Tan paras 46, 47

-Petersen paras 52, 53

-Ellis para 77

-Bouradas para 101

-Khoury paras 128,129

-Immigration matters para 162.

170 In all the circumstances we are satisfied that the appellant is not a fit and proper person to be allowed to practise as a solicitor, even under supervision. We are satisfied that the only proper order for us to make is that his name be struck off the roll. We so order. We order the appellant to pay the costs of the Law Society.