Council of the Law Society of New South Wales v XX

[2025] NSWCA 4

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Council of the Law Society of New South Wales v XX [2025] NSWCA 4

Hearing dates:

On the papers

Date of orders:

04 February 2025

Decision date:

04 February 2025

Before:

Bell CJ; Payne JA; Stern JA

Decision:

1. Declare that the Respondent is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (the Roll).

2. Order that the name of the Respondent be removed from the Roll.

3.        Order that the Respondent pay the Applicant’s costs of, and incidental to, these proceedings.

4.        Subject to order 8, an order that the Respondent be referred to by the pseudonym (XX) in these orders and the reasons for judgment.

5. Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act), and subject to the exceptions set out in Orders 9 to 14 below, on the basis of the ground in s 8(1)(c) of the Suppression Act the publication of information tending to reveal the identity of the Respondent in a manner which identifies the Respondent as the person who is alleged to have engaged in the conduct, the subject of these proceedings, is prohibited.

6.       The Respondent’s former law practices be referred to by the pseudonyms XX Law and YY Lawyers in the public version of any orders or judgments in this Court.

7. Pursuant to s 11 of the Suppression Act, Orders 4 to 6 inclusive apply throughout the Commonwealth.

8.       Orders 4 to 7 inclusive apply until the expiration of 18 months after the Respondent’s release to parole from his current custodial sentence in District Court proceedings 2019/00048381 and 2019/00363260.

9.       Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of any information to any Court or Tribunal.

10.     Orders 4 to 7 inclusive do not prevent any Court or Tribunal from making an order that information, whether or not it tends to reveal the identity of the Respondent, may be published (or, for the avoidance of doubt, disclosed).

11.      Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information to the New South Wales Police, or to the Australian Federal Police.

12.      Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes:

a.        the Council of the Law Society of New South Wales and or the Law Society of New South Wales investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Respondent or any law practice, legal practitioner or former legal practitioner with which the Respondent has been associated, including but not limited to claims on the Fidelity Fund (being the fidelity scheme administered by the Law Society of New South Wales);

b.        the Council of the Law Society of New South Wales and/or the Law Society of New South Wales seeking legal advice in relation to the Respondent and/or matters, allegations, claims or complaints against or involving the Respondent or any law practice, legal practitioner or former legal practitioner with which the Respondent has been associated, including but not limited to claims on the Fidelity Fund;

c.        the Council of the Law Society of New South Wales instituting and/or carrying on legal proceedings against or involving the Respondent in any Court or Tribunal; and/or

d.        the exercise of the receiver’s functions in relation to the law practice known as XX Law and/or the law practice known as YY Lawyers, whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver.

13.   Orders 4 to 7 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of:

a.        information about the suspension, or status, of the Respondent’s practising certificate by the Council of the Law Society of New South Wales;

b.        information concerning claims which may be made against the Fidelity Fund in relation to the Respondent, XX Law or YY Lawyers, or any other law practice with which the Respondent has been associated including but not limited to information inviting any person who considers they have a claim to make one; and/or

c.        information concerning the receivership and/or management of XX Law or YY Lawyers, including but not limited to information concerning the appointment of any receiver and/or manager to XX Law or YY Lawyers,

          whether such publication or disclosure is, or has been, made before or after the making of these orders.

14.   Orders 4 to 7 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of any information:

a.        by the Council of the Law Society of New South Wales and/or the Law Society of New South Wales, the receiver of XX Law or the receiver of YY Lawyers, the manager of XX Law or the manager of YY Lawyers to any client, former client or purported client of the Respondent, XX Law, YY Lawyers or any other law practice, legal practitioner or former legal practitioner with which the Respondent has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or

b.        by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Respondent or not), or to assist with any investigation or proceeding concerning the Respondent, whether such publication or disclosure is, or has been, made before or after the making of these orders.

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of offences relating to misappropriation of trust funds – where Respondent engaged in, or represented that he was entitled to engage in, legal practice following the suspension of his practising certificate and the issue of Supreme Court injunctions restraining him from legal practice

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8, 10, 11

Crimes Act 1900 (NSW) s 192E(1)(b)

Evidence Act 1995 (NSW) s 91

Legal Profession Uniform Law (NSW) ss 10, 11, 22, 135, 138, 264

Supreme Court Act 1970 (NSW) ss 22, 23

Cases Cited:

Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32

Budniak v NSW Trustee and Guardian [2019] NSWSC 237

Council of the Law Society of New South Wales v Croke [2024] NSWCA 195

Council of the Law Society of New South Wales v Duncan [2024] NSWCA 147

Council of the Law Society of New South Wales v Green [2022] NSWCA 257

Council of the Law Society of New South Wales v Li [2024] NSWCA 218

Council of the Law Society of New South Wales v Parente [2019] NSWCA 33

Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192

Council of the Law Society of New South Wales v XX [2019] NSWSC 874

Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141

Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163

Council of the Law Society of NSW v XX (No 2) [2019] NSWSC 1079

Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407

Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; (2009) 258 ALR 768

Council of the New South Wales Bar Association v Perry [2007] NSWCA 111

Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40

Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135

Council of the NSW Bar Association v Rollinson [2024] NSWCA 84

Hilton v Legal Profession Admission Board [2017] NSWCA 232

New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284

Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258

Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470

R v XX [2020] NSWDC 771

Category:

Principal judgment

Parties:

Council of the Law Society of New South Wales (Applicant)
XX (Respondent)

Representation:

Counsel:
B Tronson with C Hamilton-Jewell (Applicant)
P Lange (Respondent)

Solicitors:
Council of the Law Society of New South Wales (Applicant)

File Number(s):

2024/280713

Publication restriction:

See orders 4 to 14

JUDGMENT

1. THE COURT: By Summons filed on 31 July 2024, the Council of the Law Society of New South Wales (the Law Society) seeks:

1. a declaration that the Respondent is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Supreme Court of New South Wales (the Roll), pursuant to s 22 of the Legal Profession Uniform Law (NSW) (Uniform Law);

2. an order that the Respondent’s name be removed from the Roll; and

3. an order that the Respondent pay the Law Society’s costs of the proceedings

and various orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act).

2. As noted in Council of the Law Society of New South Wales v Croke [2024] NSWCA 195 at [2] (Croke) and Council of the Law Society of New South Wales v Li [2024] NSWCA 218 at [2] (Li), relief of the kind sought in prayers 1 and 2 of the Summons lies within this Court’s inherent jurisdiction, as preserved by ss 22 and 23 of the Supreme Court Act 1970 (NSW) and s 264 of the Uniform Law.

3. As will be set out in greater detail below, the Respondent’s practising certificate was suspended by the Law Society on 17 January 2019, following an investigation by the Law Society in which it was determined that, prior to 3 December 2018, the Respondent had misappropriated client trust funds in the sum of $1,580,000.

4. In February 2019, the Respondent was charged with one count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (Crimes Act).

5. Notwithstanding the suspension of his practising certificate and his having been charged with a serious offence, the Respondent continued to carry on practice as a solicitor in circumstances described more fully below.

6. Following an application by the Law Society in the Supreme Court of New South Wales, interim injunctions (the Interim Injunctions) restraining the Respondent from continuing to engage, or purporting to engage, in legal practice were ordered on 11 June 2019 (Council of the Law Society of New South Wales v XX [2019] NSWSC 874) but, again, the Respondent continued to practice not only without authority but in defiance of the Court’s orders.

7. Final injunctions were ordered on 20 August 2019 (the Final Injunctions): Council of the Law Society of NSW v XX (No 2) [2019] NSWSC 1079. In further breathtaking defiance of the Court’s orders, however, the Respondent continued to purport to engage in legal practice until early November 2019. So much was admitted by the Respondent to the Law Society.

8. On 19 November 2019, the Respondent was arrested and charged with nine further counts of obtaining a financial advantage by deception.

9. On 18 December 2020, the Respondent was convicted, following a plea of guilty, of five counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), with a further five counts being taken into account on a Form 1 certificate. The Respondent was sentenced by Abadee DCJ (the sentencing judge) to 8 years’ imprisonment, commencing on 19 November 2019 and expiring on 18 November 2027, with a non-parole period of 4 years and 9 months expiring on 18 August 2024: R v XX [2020] NSWDC 771 (ROS). In fact, on 18 February 2024, the Respondent was released from custody on a home detention order. He has not made an application for a practising certificate since the Law Society suspended his practising certificate, on 17 January 2019: see below at [23].

10. Each of the counts in respect of which the Respondent was convicted related to the misappropriation of client trust monies or purported trust monies and occurred within a 14 month period between February 2018 and May 2019. The funds obtained by the Respondent totalled $4,436,763.57, or $3,248,208.81 once repayments were taken into account.

11. The Law Society relies on eight grounds in support of the relief sought in its Summons. It contends that ground 1 and each of grounds 2 to 8, taken individually or cumulatively, demonstrate that the Respondent is not a fit and proper person to remain on the Roll. The grounds can be summarised as follows:

1. Ground 1 – the Respondent’s criminal convictions.

2. Grounds 2 and 3 – the Respondent’s dealing with trust monies before 3 December 2018 in breach of s 135 or s 138 of the Uniform Law.

3. Grounds 4 and 5 – the Respondent’s unauthorised legal practice following the suspension of his practising certificate but prior to the grant of the Interim Injunctions on 11 June 2019, in breach of ss 10(1) and 11(1) of the Uniform Law.

4. Grounds 6 to 8 – the Respondent’s unauthorised legal practice after the grant of the Interim Injunctions on 11 June 2019 and Final Injunctions on 20 August 2019, in breach of ss 10(1) and 11(1) of the Uniform Law.

12. The Law Society also sought, by prayers 4-14 of its Summons, several non-publication and suppression orders in relation to the proceedings which largely mirror orders previously made in the Respondent’s criminal proceedings in the District Court and injunctive proceedings in the Supreme Court and which had, as their basis, a concern supported by expert evidence that the Respondent’s suicidal ideation which was tied up with his bipolar condition would or was likely to be triggered if his name were disclosed in association with his criminal conduct and picked up in the media.

13. Interim consent orders were made pursuant to s 10 of the Suppression Act by the Court of Appeal Registrar on 31 July 2024 prohibiting the disclosure of information tending to reveal the identity of the Respondent in connection with these proceedings and ordering that the Respondent be referred to as “XX” in the Court until the first available hearing before a judge.

14. On 20 February 2024, the Respondent advised the Law Society through his legal representative that he consented to the orders sought in a draft summons and the filing of a tender bundle by the Law Society and the reading of the affidavits that had been relied upon in the various injunction hearings in 2019. By way of submissions filed on 21 October 2024, the Respondent expressed his consent to all orders sought by the Law Society in its Summons but expressed a wish to be heard in the event that the Court did not propose to make those orders.

15. Notwithstanding the Respondent’s consent to the relief sought, this Court must be independently satisfied that he is not presently fit to practise and is likely to be unfit in the indefinite future such that the removal of his name from the Roll is appropriate: Council of the Law Society of New South Wales v Duncan [2024] NSWCA 147 at [3] (citing Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [9], Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [33], [45] and Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]).

16. Additionally, in Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; (2009) 258 ALR 768 at [16] (Einfeld), it was observed that where “a member of the profession so conducts him or herself as to bring disrepute on to the profession, the administration of justice and the legal system, procedures … should be unquestionably complete in examination of relevant conduct” and that this was “an aspect of protecting the public and fostering the public interest by maintaining full accountability of those in the profession and involved in the administration of justice.”

17. It is thus necessary to provide some further details as to the nature and extent of the conduct which has rendered the Respondent unfit to practice and which, in our view, plainly warrants his removal from the Roll.

18. In relation to ground 1 concerning the Respondent’s criminal convictions, given that the Respondent consented to the Law Society tendering the remarks on sentence after being informed that they may not be admissible to prove the truth of their content without his consent, the Court is not precluded by s 91 of the Evidence Act 1995 (NSW) from relying on those remarks: Li at [18] citing Croke at [9] and Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]-[56]. Extracts of those remarks at [36] below speak to the length and scale of the Respondent’s offending.

19. In support of grounds 4-8 concerning the Respondent’s unauthorised legal practice, the Law Society relies on affidavits read and exhibits tendered in the proceedings concerning both the Interim Injunctions and Final Injunctions. On the basis of the Respondent’s consent to the orders sought and the filing of the tender bundle (see [14] above), the Law Society seeks leave, to the extent it is required, to rely on those materials in the present proceedings: Budniak v NSW Trustee and Guardian [2019] NSWSC 237 at [33]. Such leave is granted.

Factual background

20. The Respondent was a principal of an incorporated legal practice, XX Law. He was also operating the business of a second incorporated legal practice, YY Lawyers. The principal of YY Lawyers was his former wife’s sister.

21. Following an investigation conducted by an investigator employed by the Law Society, on 3 December 2018 a report (the 3 December Report) was provided to the Law Society in which a trust investigator stated his opinion that the Respondent had misappropriated trust money in relation to two clients in September and October 2018 in the sum of $1,580,000. That conduct was described by the investigator in the Executive Summary to the 3 December Report as follows:

“In two property purchase matters … [XX] misappropriated the combined sum of $380,270.65 in Trust Money. Pursuant to the direction of [XX], the clients … paid $250,252 & $130,018.65 respectively for settlement money and stamp duty to an account under the control of [XX] … in July 2018, which is not a law practice general trust account. This trust money was then withdrawn from the account in the form of two payments of $650,000 on 6 July 2018 & $85,000 on 27 July 2018 that were not paid to the law practice general trust account. After protracted settlement negotiations the vendor’s solicitor rescinded the contract and as a consequence the deposit was forfeited. On 31^st August 2018, the vendor’s solicitor (the deposit holder) paid the deposit money on both matters to the vendor without settlement preceding on either of the conveyancing matters. Since late September 2018, [XX] has been repaying [the clients] their trust money plus interest in instalments, as well as the amount of their deposit on the purchase.

On 11 October 2018, [XX] misappropriated $1,200,000 from the CBA trust bank account belonging to [another client]. The trust money was paid to a personal account of [XX] … and on the same day of the transfer … [XX] used the trust money for his own purposes by effecting 30 payments from his personal account which left the balance of the account at $1,045.27 Cr as at the close of business on that day. [The client] confirmed to me that she did not authorise the payment of her $1,200,000 from the trust bank account. As at 23 November 2018, [XX] had not returned any of this trust money to the law practice trust account. [XX] has not repaid any of this trust money to the client, as at the date of this report.”

Only one of the matters addressed in the 3 December Report was also the subject of the offences for which the Respondent was convicted on 18 December 2020 (see [9] above).

22. On 11 December 2018, the Law Society suspended the Respondent’s practising certificate (the Interim Suspension). The Respondent consented to the Interim Suspension and notified the Law Society of further matters in addition to those identified in the 3 December Report. The Law Society later appointed managers to XX Law and YY Lawyers.

23. On 17 January 2019, the Council suspended the Respondent’s practising certificate until 30 June 2019 (the Ongoing Suspension). Notwithstanding the Ongoing Suspension, the Respondent commenced work with another legal practice in January 2019. On 9 April 2019, the Law Society was notified by the Receiver of XX Law and YY Lawyers that there had been a transfer of a number of clients from XX Law to that other legal practice and that the Respondent was involved in those matters.

24. On 11 June 2019, following an application by the Law Society, the Interim Injunctions were ordered in the Supreme Court restraining the Respondent from acting or receiving any money or from operating or opening a bank account or from representing or doing anything that stated or implied that he was entitled to practice as a legal practitioner or to engage in legal practice: Council of the Law Society of New South Wales v XX [2019] NSWSC 874.

25. On 20 August 2019, the Final Injunctions were ordered by Bellew J restraining the Respondent from engaging in legal practice: Council of the Law Society of NSW v XX (No 2) [2019] NSWSC 1079.

26. Bellew J found, by reference to Affidavit evidence that was also before this Court, that the Respondent had, in contravention of ss 10 and 11 of the Uniform Law, corresponded with a client, Mr T, who had first engaged XX Law in August 2018, in respect of both a negligence action against Mr T’s former lawyers and a proposal for the development of a property in March 2019, after the Respondent’s practising certificate was suspended in circumstances where the Respondent knew that this was the case and had held himself out to be a legal practitioner who was entitled to practice: at [15]-[17].

27. His Honour went on to find that the Respondent had also, between January and June 2019, continued to correspond with a client, Mr P, who had first engaged the Respondent in August 2018, in relation to a default judgment entered against Mr P in the Local Court. Bellew J found that in that correspondence, the Respondent continuously represented that he was the holder of a practising certificate in circumstances where his Honour was satisfied that the Respondent knew that was not the case. His Honour also found that the Respondent had issued the client with an invoice for professional fees incurred in connection with the proceedings, purporting to have been issued by the other legal practice referred to in [23], and directed the client to pay fees into an account which the Respondent represented was that firm’s trust account: at [18]-[22]. The Respondent’s misappropriation of trust money in respect of Mr P was the subject of one of the offences in respect of which the Respondent was sentenced on 18 December 2020.

28. Notwithstanding the Interim Injunctions and Final Injunctions, the Respondent continued to purport to engage in legal practice until early November 2019. On 5 November 2019, the Respondent, through his legal representative, provided the Law Society with a Schedule of matters in relation to which the Respondent had continued to undertake legal work. That Schedule included two matters in relation to a client, Mr M, and also a matter in relation to a client, Mr C.

29. Between 23 June 2019 and 31 October 2019, the Respondent made representations to clients of XX Law, Mr and Mrs M, that he was engaged in negotiations with their former solicitors in relation to a negligence action brought by Mr M against those solicitors, that he was engaged in negotiations concerning bankruptcy proceedings commenced by Mr M, that orders had been made and communications received from and sent to the District Court in relation to the negligence action and the then Federal Circuit Court in relation to the bankruptcy proceedings, that Mr M had received judgment in his favour in the negligence proceedings, that the bankruptcy proceedings against Mr M had been dismissed or otherwise discontinued in his favour and that the Respondent had taken steps to progress or defend both proceedings, including by appearing in court on behalf of Mr M. The Respondent also purported to take instructions from Mr M in relation to the negligence claim and the bankruptcy proceedings. Notably, the representations made by the Respondent included providing Mr and Mrs M with a document that purported to be a sealed order of the District Court. The District Court had no records of any documents sent by the Respondent to the client.

30. At no stage between June 2019 and 5 November 2019 did the Respondent disclose to Mr M the true state of the negligence or bankruptcy proceedings, nor did he engage in negotiations with Mr M’s former solicitors or appear in court on behalf of Mr M.

31. Between 12 June 2019 and 19 September 2019, the Respondent made representations to Mr C that he was taking steps in relation to the preparation of a shareholder agreement for Mr C and that he was able to provide Mr C with advice in relation to a director penalty notice that he had been issued. The Respondent also purported to take instructions from Mr C in relation to the director penalty notice and the liquidation of a company.

32. Between 9 July 2019 and 19 September 2019, the Respondent made representations to Mr I, who was a client of XX Law, that he was taking steps to progress court proceedings on behalf of Mr I, including by submitting materials to the District Court, that he was negotiating with the Department of Public Prosecutions (DPP) in connection with the proceedings on behalf of Mr I, that he was taking steps in connection with a warrant for the arrest of Mr I that had been issued in the proceeding and that the warrant for Mr I’s arrest had been revoked on certain conditions. Those representations included sending documents purporting to be orders made by Judge Clare of the District Court in Brisbane revoking a warrant issued for the client’s arrest and a document purporting to be an expert report made in relation to those proceedings. The Respondent also purported to take instructions from Mr I in relation to his travel arrangements to and from Australia for the purpose of providing that information to the Court and in relation to the warrant that had been issued for Mr I’s arrest.

33. During this period of time, the Respondent did not in fact engage in negotiations with the DPP concerning the proceedings against Mr I, did not disclose to Mr I the true state of those proceedings or take any steps or have any communications with the Court in relation to the proceeding against Mr I.

34. As set out at [9] above, on 18 December 2020, the Respondent was convicted and sentenced in relation to five counts of obtaining a financial advantage by deception, with a further five counts being taken into account on a Form 1 certificate. The following “Brief Summary” of the offending was set out in a Statement of Agreed Facts adduced by the Crown on sentence:

“…In 2018, XX Law and XX were engaged by several clients to handle their affairs. These related to the sale and purchase of property; wills and probate; family law proceedings etc. While handling their matters, XX directed his clients to make payments into a variety of business bank accounts controlled by him, which he called his ‘Trust Account’. Clients though were unaware that they were not making deposits into the actual [XX Law] Trust Account. They were also unaware [XX] immediately spent or transferred the money deposited into the ‘Trust Accounts’ out of the account for other purposes.

[XX] on many occasions, was unable to pay his clients and fulfil his obligations to them; including failing to pay other parties, breaching settlement agreements and causing the forfeiture of trust deposits. It was only because [XX] had either received other client funds into his account or he transferred funds from other accounts that he was able to pay his clients. On occasions after clients demanded the return of their money [XX] made attempts to repay them from moneys in other accounts. On other occasions [XX] made no attempt to repay his clients.”

35. It was also agreed that, since April 2019, the Respondent has been treated for Bipolar I Disorder and was, on several occasions, admitted to Gordon Private Hospital in relation to his mental health problems.

36. The sentencing judge said the following as to the Respondent’s offending:

1. The Respondent “defrauded a large number of clients”: at ROS [1];

2. The amount misappropriated ($4,436,763.57, or $3,248,208.81 once repayments were taken into account) was “a substantial amount of money from anyone’s perspective”: at ROS [58];

3. The “period of offending … was not insubstantial”: at ROS [59];

4. The “methods of evasion deployed” by the Respondent involved intermingling the Respondent’s monies with those of clients and recycling those funds between different accounts with some clients being “inveigled to transfer cash to him following representations of the benefits that might accrue to them”: at ROS [60];

5. “some of the victims were placed in circumstances involving some financial or other personal vulnerability or distress”: at ROS [62];

6. The Respondent did “not specifically identify the purposes for which he applied the misappropriated monies” and “[h]is motivation, such as it could be divined, may generally be regarded as being not purely of greed, but more financial need to redress the financial consequences of bad decisions contributed to by the disorder [Bipolar 1]”: at ROS [101];

7. Notwithstanding his Bipolar 1 diagnosis, the Respondent’s “ability to engage with a number of clients and receive and transfer large amounts of money do not betoken cognitive incapacity”: at ROS [102]; and

8. The Respondent “generally had time to think about his wrongdoing and the consequences of his wrongdoing” and his offending was not “impulsive, or spontaneous and attributable only to his mental disorder”: at ROS [105].

Consideration

37. The Law Society submits that, having regard to the Respondent’s convictions and conduct, severally and cumulatively, he is not a fit and proper person to remain on the Roll and is permanently, or at least indefinitely, unfit to engage in legal practice.

38. Although the fact of a criminal conviction may not always disqualify a person from legal practice, the defects of character and the disgrace flowing from the conviction may be incompatible with continued practice: Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [62] (Green); Council of the NSW Bar Association v Rollinson [2024] NSWCA 84 at [31] (Rollinson).

39. In seminal observations made in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20], Spigelman CJ said the following as to the need for the legal profession to exhibit the highest standards of integrity:

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

40. As explained in Li at [22]-[23], the appropriate maintenance of trust accounts is critical to upholding confidence in the legal profession and the misappropriation of any sum of money by a lawyer is a gross violation of the oath or affirmation which every new lawyer makes on admission to practice, namely to “truly and honestly conduct” themselves in the practice of a lawyer of the Supreme Court of New South Wales: see also Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 at [118] and Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258 at [21]. In Li at [24], Bell CJ added that:

“Such dishonourable conduct harms the reputation of lawyers practising in this State and undermines public confidence in the legal profession: Croke at [13]. As such, the damage done by the Respondent’s acts extended well beyond the clients and principals of the firm by which he was employed. The relief sought by the Law Society is entirely justified.”

41. It was said by this Court in Green at [65] that “the ordinary consequence of misappropriation of trust funds by a practitioner is removal from the roll”. In Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141 at [28] it was held that an amount of just over $400,000 was a “substantial” sum to have been misappropriated. The amounts of money misappropriated by the Respondent in the present case are significantly in excess of this amount and run into the millions of dollars.

42. The Law Society submits that to the extent that the sentencing judge found that the Respondent’s psychiatric condition was causally connected with the misappropriation of trust money which was the subject of his offending (at ROS [101]), there was no evidence that he has recovered, or will recover, and, in light of the protective nature of the Court’s disciplinary jurisdiction, the persistence of the Respondent’s psychiatric condition supports the conclusion that he is presently unfit to remain on the Roll. But even putting that consideration to one side, misappropriation of the scale and extent of that perpetrated by the Respondent would by itself warrant removal from the Roll.

43. As has been seen, that disgraceful conduct was compounded by the Respondent’s brazen disregard of his suspension from practice by the Law Society and his contempt of on multiple occasions for serious orders of this Court restraining his continuation of practice.

44. In Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [63], the Court held that it was appropriate to remove a barrister from the Roll who had, without holding a practising certificate, held himself out as being a barrister on the basis that:

“…The courts and the public could not repose any confidence in a person who is prepared to betray the trust expected from those who practise the law. Both the public and the profession should be protected by ensuring that the opponent can no longer hold himself out as a legal practitioner of this Court: see New South Wales Bar Association v Hamman [1999] NSWCA 404.”

See also Council of the New South Wales Bar Association v Perry [2007] NSWCA 111 and Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407.

45. More recently, in Rollinson, this Court held in relation to a barrister who had failed to renew his practising certificate but continued to provide various legal services that his “repeated and wilful contraventions of the Court’s injunctions, over a lengthy period spanning several months” demonstrated “decisively that he lacks one of the ‘essential requirements for being a fit and proper person to be a legal practitioner’, namely ‘preparedness to comply with the law’” and that this warranted the removal of his name from the Roll: at [44]. It is axiomatic that a legal practitioner must be prepared to comply with the law: Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 at [181].

46. The conduct of the Respondent in the present case was of a far more egregious kind than that engaged in by Mr Rollinson, serious though that conduct was. The Respondent's conduct involved engagement with multiple clients when either without a practising certificate and also when restrained from doing so, deceit of those clients both as to what the Respondent was doing and achieving for them, his lack of his entitlement to be acting for them and that he was in fact suspended from practice and subject of court orders restraining him from purporting to do so. Still more disgraceful was his evident fabrication, in at least one case, of court documents which purported to have emanated from the District Court and been stamped accordingly: see [29] above.

47. This is a plain case for the making of the declaration sought in prayer 1 of the Summons and the removal of the Respondent’s name from the Roll as sought in prayer 2. Costs should follow the event.

Non-publication and suppression orders

48. There remains for consideration that aspect of the Summons by which the Law Society seeks, with the Respondent’s support, suppression of the Respondent’s name and related orders preventing any disclosure of information that would identify the Respondent’s connection with the matters that led to his conviction and imprisonment and his removal from the Roll.

49. As noted above, the Respondent has had the benefit of orders made pursuant to s 7(1) of the Suppression Act in effect and, subject to certain exceptions, preventing the publication of his name in connection with the conduct that led to his suspension from practice and the criminal charges to which he pleaded guilty. Such orders were made by Davies J in March 2021 with similar orders being made in the District Court of New South Wales in 2023 (replacing earlier orders): Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192. As a result of those and similar earlier orders the various judgments of this Court and the District Court have referred to the Respondent and the law practices with which he was associated in anonymised form.

50. The basis for those exceptional orders related to the Respondent’s fragile mental condition and, in particular, a suicidal ideation which, according to expert evidence of two psychiatrists as well as the Respondent’s treating doctor, would be materially exacerbated were the Respondent’s name to be published. The evidence (which was also before this Court on the Law Society’s application) was that this susceptibility would exist not only during the Respondent’s incarceration but also, at least for a time, following his release to the community upon parole. In the event, Davies J made orders under the Suppression Act to continue for 18 months from the time of the Respondent’s release to parole at which point it would be open and up to the Respondent to move for an extension of any suppression orders. The District Court’s orders are in conformity and coterminous with those made by Davies J. In making his orders, Davies J held the following (at [34]):

“… the Court should prevent any publication of the defendant’s identity for a reasonable period after he is actually released to parole rather than the date he is eligible for it, as the Law Society contended. I have accepted that the psychiatric evidence is that such release is a stressor for the defendant, and there is a small prospect of media interest at the time of his release. I consider that allowing a period of 18 months from the date of his release to parole before any restriction is lifted means that the order will not operate for longer than is reasonably necessary. I cannot be satisfied on the present evidence that it is reasonably necessary for the order to operate beyond that time. An 18 month period will give the defendant sufficient time to adjust to parole and to move for an extension of the order if it transpires that his psychiatric condition then requires it.”

51. Given that the Law Society supported the continuation or application of a like regime, no additional evidence was led as to the Respondent’s current psychiatric condition following his release from prison although the medical evidence that had been before Davies J was also before this Court on the present application.  The Respondent’s indication that he wished to be heard in the event that this Court did not make the orders sought by the Law Society suggests that he may well have wished to lead up updating evidence as to the effect of his name being disclosed in this judgment on his mental state.

51. Given that the expert evidence that had been led before Davies J extended to the Respondent’s likely vulnerability to self-harm even after his release from incarceration, when taking in combination with the fact that the Law Society itself propounds the continuation of a similar regime which will expire within a relatively short period (subject to any application by the Respondent to extend it), we consider that the regime of non-publication and related orders sought by the Law Society should be ordered with the exception of proposed order 6 to the extent that it referred to “[t]he Respondent’s family members, where referred to as such, location”. No reference is made in this judgment to any of the names of the Respondent’s family or to his or their location, such that any order including reference to family members and location would be otiose.

52. As such, in addition to the three orders set out in the first paragraph of these reasons, we would make the following additional orders:

“4    Subject to order 8, an order that the Respondent be referred to by the pseudonym (XX) in these orders and the reasons for judgment.

5 Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act), and subject to the exceptions set out in Orders 9 to 14 below, on the basis of the ground in s 8(1)(c) of the Suppression Act the publication of information tending to reveal the identity of the Respondent in a manner which identifies the Respondent as the person who is alleged to have engaged in the conduct, the subject of these proceedings, is prohibited.

6    The Respondent’s former law practices be referred to by the pseudonyms XX Law and YY Lawyers in the public version of any orders or judgments in this Court.

7 Pursuant to s 11 of the Suppression Act, Orders 4 to 6 inclusive apply throughout the Commonwealth.

8    Orders 4 to 7 inclusive apply until the expiration of 18 months after the Respondent’s release to parole from his current custodial sentence in District Court proceedings 2019/00048381 and 2019/00363260.

9    Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of any information to any Court or Tribunal.

10    Orders 4 to 7 inclusive do not prevent any Court or Tribunal from making an order that information, whether or not it tends to reveal the identity of the Respondent, may be published (or, for the avoidance of doubt, disclosed).

11    Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information to the New South Wales Police, or to the Australian Federal Police.

12    Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes:

a.   the Council of the Law Society of New South Wales and or the Law Society of New South Wales investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Respondent or any law practice, legal practitioner or former legal practitioner with which the Respondent has been associated, including but not limited to claims on the Fidelity Fund (being the fidelity scheme administered by the Law Society of New South Wales);

b.    the Council of the Law Society of New South Wales and/or the Law Society of New South Wales seeking legal advice in relation to the Respondent and/or matters, allegations, claims or complaints against or involving the Respondent or any law practice, legal practitioner or former legal practitioner with which the Respondent has been associated, including but not limited to claims on the Fidelity Fund;

c.    the Council of the Law Society of New South Wales instituting and/or carrying on legal proceedings against or involving the Respondent in any Court or Tribunal; and/or

d.    the exercise of the receiver’s functions in relation to the law practice known as XX Law and/or the law practice known as YY Lawyers, whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver.

13    Orders 4 to 7 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of:

a.    information about the suspension, or status, of the Respondent’s practising certificate by the Council of the Law Society of New South Wales;

b.    information concerning claims which may be made against the Fidelity Fund in relation to the Respondent, XX Law or YY Lawyers, or any other law practice with which the Respondent has been associated including but not limited to information inviting any person who considers they have a claim to make one; and/or

c.    information concerning the receivership and/or management of XX Law and/or YY Lawyers, including but not limited to information concerning the appointment of any receiver and/or manager to XX Law and/or YY Lawyers,

whether such publication or disclosure is, or has been, made before or after the making of these orders.

14    Orders 4 to 7 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of any information:

a.    by the Council of the Law Society of New South Wales and/or the Law Society of New South Wales, the receiver of XX Law or the receiver of YY Lawyers, the manager of XX Law or the manager of YY Lawyers to any client, former client or purported client of the Respondent, XX Law, YY Lawyers or any other law practice, legal practitioner or former legal practitioner with which the Respondent has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or

b.    by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Respondent or not), or to assist with any investigation or proceeding concerning the Respondent, whether such publication or disclosure is, or has been, made before or after the making of these orders.”

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Decision last updated: 04 February 2025