Condon v Legal Practitioners Conduct Board - [2004] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CONDON v LEGAL PRACTITIONERS CONDUCT BOARD
Judgment of The Full Court
(The Honourable Justice Mullighan, The Honourable Justice Gray and The Honourable Justice Vanstone)
8 July 2004
PROFESSIONS AND TRADES - LAWYERS - MISCONDUCT, UNFITNESS AND DISCIPLINE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
Appeal against decision of the Legal Practitioners Disciplinary Tribunal ("the Tribunal") - the practitioner was charged by the Legal Practitioners Conduct Board with unprofessional conduct relating to the practitioner's billing practices and appropriation of monies from trust accounts - the practitioner was found guilty of unprofessional conduct by the Tribunal - the practitioner appeals against the Tribunal's finding that some respects of the unprofessional conduct were fraudulent and dishonest - whether the Tribunal correctly applied the test of fraud and dishonesty - whether the Tribunal correctly applied the appropriate onus of proof - whether the Tribunal erred in failing to direct itself to the standard of proof when considering each charge - whether the Tribunal failed to have sufficient regard to the ill-health of the practitioner - appeal dismissed.
Legal Practitioners Act 1981 (SA) 41(1), (2), (3), (4), referred to.
Peters v R (1998) 151 ALR 51; Rajagopalan v Medical Board of South Australia (unreported, 2 February 1998, S6667), applied.
R v Balnaves (2000) 77 SASR 433; Glenmont Investments Pty Ltd v O'Loughlin & Ors (No 2) (2000) 79 SASR 185; The Law Society of South Australia v Jordan (1998) 198 LSJS 434; Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149, considered.

CONDON v LEGAL PRACTITIONERS CONDUCT BOARD
[2004] SASC 197
Full Court: Mullighan, Gray and Vanstone JJ

MULLIGHAN J The appellant was found guilty by the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) of unprofessional conduct in various respects over a period from August 1995 to the end of 1998. The Legal Practitioners Conduct Board (“the Board”), which presented the charges against the appellant before the Tribunal, has instituted disciplinary proceedings against him in this Court. The Tribunal found that in some respects the unprofessional conduct of the appellant was fraudulent and dishonest and the appellant appeals against these findings. There are two other grounds of appeal which will be mentioned in due course.
At the request of the appellant we heard the appeal and deferred consideration of the disciplinary proceedings.
The Board laid charges of unprofessional conduct against the appellant before the Tribunal in 2001 and presented amended charges on 22^nd March 2002. The charges relate to his conduct in matters concerning the estate of the late Mrs Lohe, Mrs Grant and Ms Golding. There was delay in the Tribunal completing the hearing of the charges due to ill health of the appellant. The decision of the Tribunal was given on 20 August 2003.
Background
The appellant is a legal practitioner and is aged 55 years. He was admitted to practice in 1971. He carried on practice in legal firms as an employee and as a principal. He commenced practice on his own account as a sole practitioner in 1985. He had an extensive practice in personal injury motor accident cases and undertook other types of work from time to time. It is sufficient to say that he developed a general practice and at times relevant to matters raised in this appeal he employed solicitors to undertake legal work in the practice. The appellant was responsible for the trust account in his firm. He ceased to practice on his own account in September 1997 and since that time has been employed as a solicitor by a large firm of solicitors.
He told the Tribunal that throughout his practising life he had used what were described as “reference bills”. When money of a client was withdrawn from the trust account and paid into the firm’s office account on account of fees and disbursements, a bill was prepared setting out the name and particulars of the client and the amount transferred. That bill was not sent to the client, who had no knowledge that the moneys had been appropriated in that way and for that purpose.
6 The appellant told the Tribunal that such a practice had been adopted by legal firms in which he had been employed as a young practitioner and also as a principal. Whatever may have been the extent of this practice in the legal profession many years ago, it was expressly prohibited by s 41(1) of the Legal Practitioners Act 1981 (“the Act”) which came into operation on 1 March 1982. S 41 provides:
“41.(1)A person cannot bring an action for the recovery of legal costs or appropriate money in or towards satisfaction of a claim for legal costs unless a bill specifying the total amount of those costs, and describing the legal work to which the costs relate, has been delivered to the person liable to the costs either personally, or by post addressed to the person at the person’s last known place of business or residence.
(2)The person liable to legal costs may at any time within six months after delivery of a bill of costs under subsection (1) request the person claiming to be entitled to the costs to provide a statement showing in detail how the amount of the costs to which the bill relates is made up.
(3)A person of whom a request is made under subsection (2) must comply with the request.
Maximum penalty: $750.
(4)Where the defendant to an action for the recovery of legal costs has made a request of the plaintiff under subsection (2), and the plaintiff has not complied with the request, the court must, at the request of the defendant, stay the action until the plaintiff has complied with the request.”
The purpose of these provisions is clear. A client of a legal practitioner is entitled to know when his money has been appropriated for legal costs and disbursements, the amount so appropriated and the nature of the work undertaken. The client is entitled to query the amount of the bill and seek taxation of the costs.
The appellant ceased to practice on his own account after an inspection and audit by the Law Society. The matters which are the subject of this appeal occurred during the period from 1996 to 1997.
The Tribunal found that at relevant times the appellant experienced serious financial difficulties. He had significant debt and was supervised by his bank. His accounts were under the control of the assessment management section of his bank. He suffered ill health, having various stages of depression. He also had some personal problems which need not be mentioned for present purposes.
In 1987 the Law Society carried out an inspection of the appellant’s trust account and informed him that his practice of using reference bills was not permitted. He acknowledged to the Law Society that he could not use this practice and advised that he had put steps in place to correct the practice. In 1994 another inspection of his trust account revealed that the reference bills practice was continuing. His attention was drawn to s 41(1) and he acknowledged that the practice was not permissible. The Tribunal found that within two years he reverted to the same practice of using reference bills even though he had been informed, and acknowledged, that it was in breach of s 41(1).
After the Law Society carried out the inspection, an administrator of the appellant’s practice was appointed.
The charges
There were a number of charges laid by the Board against the appellant but this appeal is only concerned with findings of fraud and dishonesty made by the Tribunal in relation to three matters handled by the appellant.
The factual basis for the charges relating to these matters may be mentioned briefly as there is no challenge to the findings of fact made by the Tribunal with respect to each of them.
The first matter
The appellant acted as the solicitor for Mr Dohler who is the executor of the estate of his aunt, the late Mrs Lohe, who died on 30 May 1990.
The only significant asset in the estate was a house property at Prospect of the value of about $96,000 and furniture of the value of about $10,000. The late Mrs Lohe left all of that property to her sister, Mrs Dohler. Probate of the will was granted on 10 October 1990. Following the grant of probate, the house property was registered in the name of the executor. Mrs Dohler was a reluctant beneficiary and was unwilling to accept the transfer of the house property. It appears that the appellant’s firm had attended to the grant of probate and had caused the executor to be the registered proprietor of the house property. The appellant was not required to undertake any further work at that time.
His file was closed in 1991. One of his employed solicitors sent to the executor a trust account statement and a bill of costs which had been paid from monies held in trust. Thereafter no fees were incurred by the executor.
On 19 September 1997 the appellant wrote to Mr Dohler and sent him another trust account statement and a bill for fees of $3,000. In his letter he informed Mr Dohler that he was merging his practice with the firm where he subsequently became employed. He mentioned that he was holding a small amount of money which should be distributed to the beneficiaries. The bill was in brief terms and was a lump sum amount. The Tribunal found that on 13 May 1996 the appellant had withdrawn $500 for monies held in his trust account with respect to the estate, which account was claimed to be legal fees due to him by the executor. On 16 May 1996 the appellant withdrew a further sum of $500 from monies held in his trust account with respect to the estate for costs claimed to be due to him. On 23 January 1997 the appellant withdrew $2,000 from the same trust monies for costs. He did not on any of these occasions render a bill of costs to the executor. With respect to withdrawals, the appellant raised internal interim bills which have been referred to as reference bills. Regarding the withdrawal of $2,000, the appellant raised a reference bill. The appellant was not entitled to any of these monies and the executor was not aware of the appropriations. The Board alleged that the appellant fraudulently misappropriated these monies. Subsequently those amounts were repaid to the executor.
Mr Dohler sought legal advice. In March 1998 the appellant sent to Mr Dohler’s solicitors a cheque of his employer for $8,725.96 consisting of $5,725.96 from a fixed term deposit and $3,000 which was described as “a refund of incorrect fees”. I mention the source of these monies shortly.
Mrs Grant is the daughter of Mrs Dohler. In 1993 Mrs Dohler executed a power of attorney to Mrs Grant who was also appointed as her guardian. The appellant was aware of these matters and he attended at the offices of the Guardianship Board with Mrs Grant in 1996.
The property at Prospect was sold in July 1996 for $97,500. The amount of $90,778.99 was paid into the appellant’s trust account on 20 August 1996 and the trust account ledger was opened in the name of Mrs Grant as she was Mrs Lohe’s guardian. Further sums amounting to $8,095 were paid into the trust account from the sale of the furniture in the estate of the late Mrs Lohe which was arranged by Mrs Grant. The amounts were withdrawn from the trust account, which I mention shortly, leaving a balance of $5,445 which was placed in the bank on 12 March 1997 on a term deposit. Neither Mrs Grant nor the executor gave instructions for that deposit.
I mention the withdrawals. When the proceeds of the sale of the house were paid into the trust account, the appellant appropriated $1,500 to himself for fees. On 6 September 1996 he withdrew $500 from the trust account for fees. On 19 September 1996 he withdrew a further sum of $1,500 from the trust account for fees. The charges against the appellant with respect to these transactions are that he appropriated these amounts from his trust account for costs without delivering a bill of costs to Mrs Grant contrary to s 41(1). There was no allegation of fraud and none of those monies has been repaid.
On 7 November 1996 the appellant withdrew $2,000 from the trust account relating to Mrs Grant which he applied to his costs. The Board charged the appellant with fraudulently misappropriating this amount. The total of the amounts withdrawn was $5,500. The appellant did not send accounts to Mrs Grant for these amounts although accounts were prepared and titled “interim accounts”. On 18 September 1997 the appellant sent a composite account for the total amount of $5,500 to Mrs Grant. On 2 January 1997 $2,765 was repaid to the appellant by the bank from the term deposit which he did not pay into his trust account but into his firm account. The Board alleged that the appellant fraudulently misappropriated this amount which was later repaid. On 22 September 1997 the appellant sent to Mrs Grant another detailed account for fees amounting to $8,250. The two accounts of 18 September 1997 and 22 September 1997 are in identical terms except for the amount charged.
On 23 January 1997 the appellant appropriated $2,000 from the trust account in relation to the estate of Mrs Lohe and paid that amount into his firm account for legal fees. He did not render a bill of costs to the executor and, as has been mentioned, no legal work had been done by him with respect to the estate since 1991. He was not entitled to those fees. The Board charged him with fraudulently misappropriating those monies. The appellant subsequently repaid that amount to the executor.
The Tribunal found all of these charges proved. As has been seen, five of them required findings of fraud which were made. The total amount involved in these charges is $7,750. The other three charges which alleged a breach of s 41(1) involved $3,500.
I now turn to other aspects of the appellant’s conduct of the estate of Mrs Lohe. On 10 February 1997 the appellant appropriated to his own use $20,218.68 from the monies deposited in the fixed deposit at the bank. The appellant told the Tribunal that he was not in financial difficulty when he appropriated these amounts and that he did so as a loan with the knowledge and approval of Mrs Grant, given during a discussion between him, Mrs Grant and a Mrs Spencer. The two women denied that there was any such discussion and Mrs Grant denied having given her consent and approval. They also said that there was no discussion about the appellant borrowing the monies. The Tribunal accepted their evidence and rejected the evidence of the appellant.
The appellant prepared a memorandum of mortgage with respect to these amounts over a boat mooring owned by him, which was already subject to a mortgage. He said that he borrowed the monies to repay a debt to another client. He was being pressed to repay that debt. He paid interest on the amounts which he appropriated but as Mrs Grant was unaware of the alleged loan, there had not been any agreement as to the payment, or rate, of interest. He told the Tribunal that he intended to register the mortgage. The reason for the appropriation is simply that he was short of money. The amount appropriated was paid to the other client and therefore was effectively lost as the debt was unsecured.
On 18 June 1997 the appellant withdrew a further amount of $20,015 from the monies on deposit with the bank. The appellant required these funds to pay a pressing income tax liability. No security was provided to Mrs Grant for this amount, which the appellant claimed to be a loan. These monies were paid to discharge the income tax liability. The Tribunal rejected the appellant’s evidence that Mrs Grant had agreed to the loan and found that she did not know of, or consent to, the taking of the money.
The appellant repaid both of these amounts following an audit of his trust account by the Law Society. According to the appellant, he borrowed monies from a friend to repay the total amount.
The Tribunal found that the appellant had a conflict of interest in these transactions as he had borrowed money for his own purposes from the trust funds which he controlled. The Tribunal found that the appropriations were fraudulent. The Tribunal found that there was no evidence that the boat mooring offered sufficient security. As Mrs Grant was not aware of the appropriation, she did not have the opportunity to take independent advice.
The second matter
Ms Golding was a resident of the United Kingdom. In November 1993, while on holiday in South Australia, she was involved in a motor vehicle accident and sustained injuries. The appellant acted for her in presenting a claim for damages.
A solicitor employed by the appellant, S, who had the conduct of the matter, wrote to Ms Golding informing her of an offer which had been made by the State Government Insurance Commission in settlement of her claim. At that point of time the estimate of the appellant’s costs was $4,750. Ms Golding was informed by S that she would receive a little over $50,000 after costs had been paid if she accepted the offer. The offer was accepted. On 12 February 1997 S sent to Ms Golding a bill for costs in the sum of $4,750 which was described as “a final account”. At that time S did not envisage that there would be any further legal work to be done. The amount to be paid by the insurer was $56,645.89 inclusive of costs and disbursements which amounted to $244 in legal disbursements and $921.65 in medical disbursements. On 17 February 1997 S wrote to Mrs Grant and again informed her that she would receive an excess of $50,000.
S left the appellant’s practice on extended leave in March 1997. The amount due in settlement was received by the appellant and deposited in his trust account on 25 March 1997. A memorandum on the file dated 12 February 1997, prepared by S, sets out, inter alia, that when the settlement monies were received, the amount of $4,750 should be paid to the appellant’s firm and after payment of the disbursements, which have been mentioned, the balances of the monies received should be paid to Mrs Grant. The amount due by the Commission in settlement was sent to the appellant and he paid it into his trust account on 26 March 1997.
The appellant became involved in finalising the matter. On 26 March 1997 he authorised $6,000 to be withdrawn from his trust account on account of legal costs. On 3 April 1997 a reference bill was prepared for $1,800 and that amount was withdrawn from the trust account on the same day. The appellant told the Tribunal that he was not aware that S had sent a final account to Ms Golding, although the account which was sent to her was expressed in those terms. He said that he made an estimate of what amount was reasonable when the $6,000 was withdrawn. He told the Tribunal that when he withdrew $1,800 he regarded his earlier estimate of $6,000 to be totally inadequate. When these amounts were withdrawn from the trust account, the appellant prepared reference bills which were not sent to the client, which was in breach of s 41(2). He denied seeing correspondence on the file to Ms Golding as to the final account. His evidence was rejected by the Tribunal.
The insurer paid to the appellant $56,762.94 in settlement of the claim. The reason for the slightly higher amount than that agreed is irrelevant for present purposes.
The Board alleged that the appellant fraudulently misappropriated from monies held by her in his trust account the sum of $1,250 being the difference between $6,000, which was the sum withdrawn from the trust account, and $4,750 being the amount of the final bill, as well as the sum of $1,800, which has been mentioned.

The Tribunal found that these withdrawals from the trust account were fraudulent conduct on the part of the appellant. He challenges that finding on this appeal.
The Tribunal made the following further findings:
“34.After a consideration of all of the matters set out in these Reasons the Tribunal has found a consistent pattern in the practitioner’s conduct. Over the period from August 1995 to the end of 1998 the practitioner has failed to keep his clients properly informed. He has taken liberties with the way in which he has appropriated money from his trust account without rendering bills. He has appropriated money to which the Tribunal has found he is not entitled and he has been unable to provide the Tribunal with any satisfactory explanation for these misappropriations. He has previously been warned on two occasions by the Law Society in relation to his method of using “reference bills”. The Tribunal has found his conduct in relation to various appropriations has been fraudulent.
35.The Tribunal has taken into account the mental depression from which the practitioner suffered. It has taken into account the effect that this depression has had on the practitioner himself, his family and his work. The Tribunal has also taken into account the effects of the excess consumption of alcohol on his general well-being. It is the Tribunal’s view that unfortunately the practitioner’s financial circumstances caused him to depart from the normal standards of professional practice and caused him to act dishonestly.”
The grounds of this appeal are:
1The Tribunal erred in finding fraud and dishonesty on the part of the appellant, with respect to the appropriations which I have mentioned, where such a finding was made.
2The Tribunal erred in not determining, and then applying, the appropriate test of fraud and dishonesty.
3 The Tribunal erred in not determining, and then applying, the appropriate onus of proof.
4The Tribunal erred in having insufficient regard to the ill health of the appellant and the medical evidence relating to it when evaluating the evidence of alleged fraud.
5The findings of fraudulent conduct with regard to the matters which I have mentioned are unsafe.
Ground 3 refers to “onus” of proof but it should be “standard of proof”.
As has been seen, there are two types of conduct which the Tribunal found to be fraudulent and dishonest. The first is the use of reference bills and the appropriation for costs of monies from the trust account. The second is the appropriation of the two large amounts of money from the trust account by the appellant for his own personal use.
As to fraud, the Tribunal said:
“The Board contends that fraud or dishonesty is made out if there is an intention to create a situation in which one person puts the money of another person at risk or prejudicially affects that person in relation to a lawful right, interest, opportunity or advantage, knowing that he has no right to do so. Furthermore the Board suggests that in proving fraud or dishonesty it does not have to establish that the accused person intended to deprive the owner of property permanently. The Tribunal finds that since the decision of the High Court in R v Peters (sic) (1998) 151 ALR 51 it is not necessary to prove as a separate element of dishonesty that the person accused realised that his conduct was dishonest by the standards of ordinary honest people.”
In Peters v R (1998) 151 ALR 51 the High Court was concerned with the criminal offence of conspiracy to defraud. Toohey and Gaudron JJ (with whom Kirby J agreed) considered cases relating to dishonesty and the fraud in the context of various offences and concluded:
“In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.”
See also McHugh J (with whom Gummow J agreed) at 73-74. The Full Court applied this test in R v Balnaves (2000) 77 SASR 433 when considering elements of the crime of fraudulent conversion. It is appropriate to do so in the present context when considering whether the conduct of the appellant when appropriating the various amounts was fraudulent. It is not necessary to prove as a separate element of dishonesty that the person accused of fraud realised that his conduct was dishonest by the standards of ordinary decent people: Peters and Glenmont Investments Pty Ltd v O’Loughlin & Ors (No 2) (2000) 79 SASR 185 at 232. It is submitted on behalf of the appellants that this test is not appropriate for the appropriations where reference bills were used because it could not be established that the appellant intended to keep the money, knowing that he had no right to do so.
It is convenient to consider all of the grounds of appeal together. The Tribunal accepted the test advanced by the Board, which it regarded as in accordance with the decision in Peters. In my view, the Tribunal did adopt a correct test and applied it appropriately. The taking of a client’s money from a trust account by a solicitor, illegally for the solicitor’s own use without the knowledge or consent of the client, will almost invariably amount to fraudulent and dishonest conduct. It is difficult to envisage circumstances in which it would not. Furthermore, the appellant was well aware that this conduct was illegal pursuant to s 41 of the Act. As has been seen, the appellant appropriated monies from the trust account relating to the estate of the late Mrs Lohe on 9 May 1996, 12 May 1996 and 19 August 1996. In about five months he had appropriated $3,000 to which he was not entitled. The first two appropriations occurred three days apart and no legal work had been undertaken. The appellation of fraud and dishonesty must be given to these transactions unless there is some contrary explanation. The appellant had an explanation which I mention shortly.
I mention again that in 1996 the appellant appropriated from the trust account in relation to Mrs Grant, as the guardian of Mrs Dohler, $1,500 on 20 August 1996, $500 on 6 September 1996 and $1,500 on 19 September 1996, making a total of $3,500. It will be remembered that the proceeds of the sale of the house which Mrs Dohler inherited from Mrs Lohe were paid into the appellant’s trust account on 20 August 1996. Within one month, $3,500 was withdrawn and reference bills were raised. Fraud was not alleged with respect to those withdrawals, presumably because the appellant could justify that fees were due to him. Nevertheless he committed offences contrary to s 41 of the Act.
The last three appropriations using reference bills in respect of which fraud was charged, and found by the Tribunal, involved $6,750. The last two of them occurred about three weeks apart. There was no suggestion that the appellant was entitled to any of these monies for costs.
In my view, the test of fraud and dishonesty which has been mentioned, when applied to these transactions where fraud was alleged, requires the finding of fraudulent misappropriation to be made. The appropriations were made from trust monies without justification and without the knowledge of the clients.
I accept the submission of Mr Schapel, who appeared for the Board, that the Tribunal applied the correct test and, although it did not mention the test in each instance when it found a fraudulent misappropriation proved, there is no reason to suggest that it did not have the correct test in mind in each instance. The Tribunal could not have come to any other conclusion than that the conduct was dishonest by the standards of ordinary decent people and was therefore fraudulent.
Mr Barrett QC, who appeared for the appellant, submitted that medical evidence before the Tribunal should have prevented a finding of fraud and dishonesty. It is necessary to briefly summarise this evidence. The appellant consulted Dr Bassett, who referred him to Dr Ford. The appellant consulted Dr Ford, a psychiatrist, in February 1998 who thereafter treated him. He had not sought psychiatric assistance during the period when this conduct occurred or otherwise. Dr Ford found that the appellant had suffered a major depressive disorder of moderate intensity for about four to five years. He developed alcohol dependence as a response to his difficulties with depression. His response to treatment was good, but difficulty in monitoring his mental state arose during the hearings before the Tribunal. He suffered suicidal ideas and was frequently admitted to a psychiatric clinic.
There were complaints against the appellant as to the delay in responding to clients and the Board which are not the subject of this appeal. According to Dr Ford, these difficulties arose from his psychiatric condition. His alcohol consumption increased in 1995 and 1996 and occurred during the day. The closure of his legal firm in 1997 exacerbated his earlier financial pressures. There were tragedies in his family which need not be mentioned, but which affected his emotional and mental well being.
Dr Ford explained in a report to the appellant’s solicitors that his depressive illness led to the development of alcohol dependence which resulted in occasional errors of omission in the conduct of his practice. When he ceased practice on his own account an administrator was appointed. Dr Ford expressed the view that the appellant had responded effectively with psychotherapy, anti-depressant medication and medication to avert alcohol abuse. His depressive illness improved and his alcohol consumption decreased.
Dr Hundertmark is also a psychiatrist and has seen the appellant intermittently since August 1997. He also diagnosed the appellant as having a major depressive illness, which he said had existed for about two years. He expressed the view that this illness often interferes with the ability to concentrate and make appropriate decisions.
It may be seen that the appellant suffered serious psychiatric illness, probably during the period when he misappropriated the monies from his trust account, which are the subject of the charges heard and determined by the Tribunal.
When Dr Ford gave evidence before the Tribunal he said that the consumption of alcohol had affected the appellant considerably. He said that a neuropsychological examination of the appellant by Dr Reid was conducted and on 5 May 1998 it was reported that his immediate attention span was intact, he had some mild but significant impairment of his ability to learn new tasks and he demonstrated some difficulty in his ability to monitor what he was thinking and doing and to shift his mental set or line of thought. When Dr Hundertmark gave evidence at the Tribunal he said that he had seen the appellant four times since May 2001 and he did not exhibit any of the symptoms observed by Dr Reid. At this time he was in hospital and not intoxicated. According to Dr Ford, the amount of alcohol consumed by the appellant each working day would have compromised his ability to function. He said that the appellant had difficulty in paying his income tax in 1994 and 1995 and had a large overdraft which caused stress.
The Tribunal observed that the appellant, when giving evidence, appeared at times to have changes of mood and difficulty in understanding or wanting to understand some of the questions which he was asked. Dr Hundertmark expressed the opinion that this may be part of the depressive illness suffered by the appellant or of a secondary anxiety component which could have interfered with his performance before the Tribunal.
I have mentioned the findings of the Tribunal as to the state of health of the appellant and that it was his financial position which caused him to depart from the normal standards of professional practice and to act dishonestly.
Having considered the evidence of Dr Ford and Dr Hundertmark, including their written reports, these findings by the Tribunal were inevitable. There was no suggestion in their evidence that the appellant misappropriated the monies from the trust account due to his mental state or alcoholism, or that for some reason he did not appreciate what he was doing on each occasion.
The same must be said about the two substantial misappropriations from the trust account relating to Mrs Grant. Having accepted the evidence of Mrs Grant and Mrs Spencer, and rejected the evidence of the appellant, a finding of fraud and dishonesty was inevitable. The monies were appropriated for his own use without the knowledge and consent of Mrs Grant and although the appellant may have regarded them as loans, they were nonetheless fraudulent misappropriations and the findings of the Tribunal were correct.
I now turn to the finding of fraud in relation to the misappropriation of monies from the trust account relating to Mrs Golding. It will be remembered that these appropriations amounted to a total sum of $3,050 and occurred about one week apart. The appellant claimed that he had not seen the letter to Mrs Golding and the final bill of costs when he appropriated these monies. However, he saw the file and he must have seen the bill of costs to have concluded that $4,750 was totally inadequate as he claimed. The Board submitted that, as Mrs Golding was aware of the amount of costs to be deducted from the settlement monies, an honest practitioner would not have increased the fees without reference to the client. The assertion by the appellant to the Tribunal that the amount of $4,750 was inadequate and consequently $6,000 was appropriated, is not supported by his making the second appropriation about a week later.
The Tribunal rejected the appellant’s evidence that he did not see the letter and bill of costs prepared by S. There is nothing in the medical evidence which bears upon the issue of fraud and dishonesty in relation to these transactions.
The ground of appeal as to standard of proof must fail. The Tribunal said that it had acted upon the basis that the standard of proof in matters of this nature is on the balance of probabilities “but having regard to the gravity of the conduct alleged”. This test was held to be correct by this Court in Rajagopalan v Medical Board of South Australia (unreported, 2 February 1998, S6667); see also The Law Society of South Australia v Jordan (1998) 198 LSJS 434; Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149. The complaint is not that the Tribunal adopted an incorrect standard of proof but that it did not direct itself to that test specifically when considering each of the charges alleging fraud.
I reject this submission. It was not necessary for the Tribunal to refer to the standard of proof when discussing each charge. Having rejected the appellant’s explanation, findings of dishonesty and fraud were clearly established even though conduct of that nature is “serious and grave” and requires proof by precise evidence and careful scrutiny: Rajagopalan at 9 and cases therein referred to.
I would dismiss the appeal.
GRAY J I agree that this appeal should be dismissed. I agree with the reasons of Mullighan J.
VANSTONE J I concur with the decision of Mullighan J.