Council of the Law Society of NSW v De Veau

[2012] NSWADT 102

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Council of the Law Society of NSW v De Veau [2012] NSWADT 102

Decision date:

17 February 2012

Jurisdiction:

Legal Services Division

Before:

G Mullane, Judicial Member
M Riordan, Judicial Member
C Bennett, Non-Judicial Member

Decision:

1) The Tribunal hereby prohibits any law practice (unless with approval under Section 17 Legal Profession Act 2004) from employing or paying Michelle De Veau in connection with the legal practice engaged in by the law practice.

2) The Respondent must pay the costs of the Law Society of these proceedings as agreed or as assessed under the Legal Profession Act 2004.

Catchwords:

Legal Practice - Lay Associate - Fraud on Legal Practice - Prohibition of any law practice employing or paying the person

Legislation Cited:

Legal Profession Act 2004

Category:

Principal judgment

Parties:

Council of the Law Society of NSW (Applicant)
Michelle De Veau ( Respondent)

File Number(s):

112013

LEGAL SERVICES DIVISION

G Mullane - Judicial Member, M Riordan - Judicial Member, and C Bennett - Non-Judicial Member

REASONS FOR DECISION

INTRODUCTION

1. This was a hearing of proceedings under the Legal Profession Act 2004 ("the Act") commenced by the application of the Law Society of New South Wales filed on 10 May 2011.

1. The respondent, until her redundancy in February 2010, was working for a law practice in Lithgow, New South Wales and was a "lay associate" within the definition in s 7 of the Act.

ORDER SOUGHT

1. The applicant seeks the following orders in its application:

1. An order under section 18(2) Legal Profession Act 2004 ("The Act") prohibiting (without approval under s 17 of the Act) any law practice from employing or paying the respondent Michelle De Veau in connection with the legal practice engaged in by the law practice.

2. An order pursuant to section 20(3) of the Act that the respondent is to pay the Society's costs of these proceedings.

1. The applicant alleges in the application that the grounds for the application are "the respondent has been guilty of conduct which, if the respondent were an Australian legal practitioner would have constituted unsatisfactory professional conduct or professional misconduct and the conduct complained of is detailed in particulars in the application.

THE RESPONDENT'S POSITION

1. The respondent has not appeared before us today. The matter was listed previously on 6 July 2011, 3 September 2011, 2 November 2011 and 7 December 2011 and the respondent did not appear on any of those occasions.

1. There is an affidavit of Colin Basil Allchurch establishing service on the respondent of the application. That was on 9 June 2011 and she has filed no Reply.

1. There is an affidavit of service by Lois Yvonne Allchurch regarding service on the respondent on 15 December 2011 of notice of the hearing at 10.00 am today.

1. We are satisfied that the respondent has been aware of the proceedings throughout and has been aware of the hearing today since the service on her on 15 December of notice of the hearing.

1. The respondent has been called three times outside the hearing room and there is no answer by her or on her behalf. We are satisfied that the respondent does not oppose the application. She has not disputed any of the evidence that has been offered by the applicant.

THE EVIDENCE

1. The evidence before us comprises:

(1)   the affidavit of Colin Basil Allchurch, sworn 10 June 2011;

(2)   the affidavit of Lois Yvonne Allchurch, sworn 16 December 2011;

(3)   the application for original decision filed on 10 May 2011;

(4)   the affidavit of Anne Marie Ford, filed on 10 May 2011; and

(5)   the affidavit of John Joseph Michalski, sworn on 18 March 2011.

1. There is also a concession that has been made today by Mr Pierotti on behalf of the applicant that the respondent has repaid $165,000 to the law practice.

RELEVANT LAW

1. Subsection (18)(2) of the Act provides:

(2) On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any law practice from employing or paying in connection with the legal practice engaged in by the law practice a specified person to whom this section applies, if:

(a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with that legal practice, or

(b) the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.

1. Subsection (18)(3) of the Act also provides:

(3) An order under this section may apply to a specified law practice or specified class of law practices or may apply to law practices generally.

THE CONDUCT THE SUBJECT OF THE COMPLAINT

1. The respondent, while office manager at the law practice, defrauded the law practice in the period from 2003 to 2010 on more than 100 occasions. She, by internet transfer, transferred money from the office account of the law practice on the pretence of paying expenses of the practice but instead transferred the funds to accounts of her own. She did that without authority from the law practice. The total of funds involved appears to be approximately $350,000.

1. In the period from 2008 to 2010 she also defrauded the law practice of funds on numerous occasions by using a credit card of the law practice to pay personal expenses without the authority of the law practice and the total of the amounts involved exceeded $60,000.

1. Details of those transactions, both in respect of the internet transfers and the use of the credit card, are in the particulars of the application and proved by the affidavit of Mr Michalski.

1. It is conceded by the applicant that when the respondent's superannuation entitlements were paid to her in December 2010 she repaid the legal practice $165,000.

CONCLUSIONS

1. The Tribunal is satisfied that the proved fraudulent conduct of the respondent would, if she were a legal practitioner, constitute professional misconduct and the Tribunal is also satisfied that the respondent is not a fit and proper person to be employed or paid in connection with any legal practice.

1. The evidence is that the respondent does not intend to take up any further employment or involvement with a law practice.

COSTS

1. Section 20 of the Act gives the Tribunal power to order the respondent to pay the applicant's costs of the proceedings and the Tribunal is satisfied, given the nature of the proceedings and of the conduct that has been found proved, that the respondent should pay the Law Society's costs.

ORDERS

1. The orders therefore are:

1. The Tribunal hereby prohibits any law practice (unless with approval under s 17 of the Legal Profession Act 2004) from employing or paying Michelle De Veau in connection with the legal practice engaged in by the law practice;

2. The respondent must pay the costs of the Law Society of these proceedings, as agreed, or as assessed under the Legal Profession Act 2004.

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Decision last updated: 28 May 2012