Council of the Law Society of NSW v Fitzsimons - [2012] NSWADT 285

Administrative Decisions Tribunal

New South Wales

Case Title: Council of the Law Society of NSW v Fitzsimons

Medium Neutral Citation: [2012] NSWADT 285

Decision Date: 11 September 2012

Jurisdiction: Legal Services Division

Before: Hon G Mullane, Judicial Member
S Hale, Judicial Member
E Hayes, Non-Judicial Member

Decision:
1.The name of Christopher Ronald Fitzsimons is to be removed from the Roll of Local Lawyers.
2.The Respondent Christopher Ronald Fitzsimons must pay the costs of the Law Society of or incidental to the proceedings commenced by each of its Applications filed 16 July 2009 and 17 August 2012.

Catchwords: Solicitor - Disciplinary proceedings - Misappropriation - Breach of Statutory provisions regulating to Trust Accounts

Legislation Cited: Legal Profession Act 1987 Sections 61 & 62;
Legal Profession Act 2004 Sections 254, 257, 260 & 264;
Legal Profession Regulation 2005;
Crimes Act 1900 NSW Sections 178A & 300

Category: Principal judgment

Parties: Council of the Law Society of NSW (Applicant)
Christopher Ronald Fitzsimons (Respondent)

Representation

- Counsel: Counsel
J S Gleeson, (Applicant)
K J Pierce, (Respondent)

- Solicitors: C Groenewegen,Council of the Law Society of NSW (Applicant)
Lyons & Lyons (Respondent)

File Number(s): 092017 and 122019

REASONS

INTRODUCTION

This was a consolidated hearing of two disciplinary proceedings against the Respondent commenced by the Law Society. Proceedings numbered 092017 were commenced by the Application filed on 15 July 2009. At the hearing on 11 September, 2012, the Tribunal granted leave to the Applicant to rely on the Amended Application filed that day.
The proceedings numbered 122019 were commenced by an Application filed on 17 August 2012.
In both Applications the Applicant seeks that the name of the Respondent be removed from the Roll of Local Lawyers. The Applicant also seeks costs.
On 11 September 2012 at the start of the hearing the Respondent was represented by counsel and an instructing solicitor. Counsel raised preliminary applications. One was an argument that because the Respondent had been prosecuted, convicted, sentenced to imprisonment and served his time for conduct comprising some of the grounds in these proceedings, the Law Society was estopped from relying upon those grounds in these disciplinary proceedings. That objection was subsequently withdrawn.
The second application was for a stay of these proceedings as, it was agued, they are "an abuse of process" because:
·there was a finding of the Supreme Court of NSW in prior proceedings by the Prothonotary of NSW against the Respondent that it was not established that the Respondent was not a fit and proper person to engage in legal practice;
·the grounds relied upon by the Prothonotary comprised 8 convictions of the Respondent for misappropriation of trust funds received on behalf of clients and 3 convictions for making false instruments with the intention of using them to have another person accept them as genuine and because of that acceptance, act to that other person's own prejudice;
·the Law Society was aware of those proceedings well before the hearing of those proceedings; and
·it was open to the Law Society to participate in those proceedings and offer evidence in them, but it did not do so.
After submissions the Tribunal declined the application because:
·the Tribunal was not persuaded that it has power to make an order staying proceedings as an abuse of process; and,
·in any event, the Tribunal was not persuaded, that Law Society's conduct of these proceedings or its failure to be involved in the proceedings in the Supreme Court brought by the Prothonatory, involve any abuse of process.
The Tribunal was also not persuaded by argument on behalf of the Respondent that there was any prejudice to the Respondent or any other valid reason to defer the hearing of either application before the Tribunal until the decision of the Legal Services Division of the Administrative Decisions Tribunal in proceedings by the Law Society against the Respondent's wife.
After the Tribunal had announced its decision in relation to those issues, leave was granted by the Tribunal to the Law Society to substitute the Amended Application for the first Application. The Amendment was to omit various grounds and to seek an order that the Respondent pay its costs of the proceedings.
Shortly before 12.40pm on 11 September 2012, Counsel for the Respondent announced that there would be no cross-examination of any of the Applicant's witnesses. The luncheon adjournment was then taken until 1.45pm. When the hearing resumed at that time, the solicitor for the Respondent announced that his client had withdrawn and left the Court. He said that the solicitor and Counsel for the Respondent could not continue to appear in the proceedings. There was a short adjournment and at 1.50pm when the Tribunal resumed, leave was granted to the solicitor and Barrister for the Respondent to withdraw.
The Hearing continued in the absence of the Respondent or any legal representative for him. At 3.40pm the Tribunal announced its orders for the name of the Respondent to be removed from the Roll of Local Lawyers and for the Respondent to pay the costs of the Law Society of or incidental to the proceedings commenced by each of its Applications.

BACKGROUND

The Respondent was admitted as a Solicitor of the Supreme Court of NSW on 5 December 1969. The conduct, the subject of most of the grounds in the first application is misappropriation of trust funds and other conduct in relation to trust money and trust records alleged to have occurred between June 2001 and 27 February 2006 (inclusive).
In late November 2005 the Respondent was informed that there had been a complaint to the Law Society regarding alleged misappropriation by him of money from a Deceased Estate client.
On 21 December 2005 the Supreme Court appointed a Receiver and Manager of the Respondent's practice. That day the Law Society suspended the Respondent's practising certificate.
On 30 December 2005 the Respondent consulted Dr Rowe, a Psychiatrist. The Respondent was admitted to Northside Clinic as an in-patient on 3 January 2006. He was discharged on 18 January 2006.
The Respondent became aware of the Supreme Court Order in January or February 2006.
In June 2006 the Respondent's Tabcorp betting facility was suspended.
On 12 December 2008 the Respondent was arrested by police and charged with 8 counts of fraudulent misappropriation and 3 counts of using false instruments. The Respondent pleaded guilty to the charges in the District Court and was given a custodial sentence by Syme DCJ on 17 December 2009. He was then in prison until September 2010.
Based upon the conduct of the Respondent the subject of the 11 convictions, in 2010 the Prothonotary of the Supreme Court of NSW initiated proceedings in the Supreme Court seeking to have the name of the Respondent removed from the roll. The Respondent argued that the conduct was attributable to Bipolar Disorder and addictions to alcohol and gambling and that he had since overcome his addictions and with treatment and medication controlled the Bipolar Disorder. On 23 March 2012 the Court made a finding that the conduct was professional misconduct and the Respondent was not a fit and proper person to engage in legal practice at the time of the conduct, but found that it was not satisfied that he was still not a fit and proper person to engage in legal practice and therefore refused to order his name be removed from the roll.
Investigations by the Law Society had by then given rise to extensive other allegations of professional misconduct by the Respondent in the period 2001 to 2005 inclusive resulting in commencement of the proceedings in file 092017 in the Legal Services Division of the Tribunal in July 2009.
The Law Society also took proceedings in the Legal Services Division of the Tribunal against the Respondent's wife, who worked with him in his office. In those proceedings the Law Society alleged misappropriation of trust money by her. The Respondent gave evidence for his wife in the hearing of those proceedings. His evidence was that it was he who misappropriated that money; not his wife.
In Application 122019 by the Law Society against the Respondent filed 17 August the grounds alleged are mainly about false or misleading evidence given by the Respondent, or submissions made by him, in proceedings in the District Court, the Supreme Court, In the Tribunal hearing of the application against his wife and in these proceedings.

THE GROUNDS

Some of the Grounds originally relied upon in the Application of 15 July 2009 were not pressed at the hearing. The following are the general descriptions of Grounds still relied upon in the amended application filed 11 September 2012:
Misappropriations of Trust monies;
Breaches of Section 254 of the Legal Profession Act 2004;
Breaches of Section 257 of the Legal Profession Act 2004;
Breaches of Section 260 of the Legal Profession Act 2004;
Breaches of Section 264 of the Legal Profession Act 2004;
Wilful breaches of Section 62 of the Legal Profession Act 1987;
Breach of orders made by the Supreme Court on 21 December 2005;
Borrowing from clients in breach of Rule 12 of the Revised Professional Conduct and Practice Rules;
Making false entries in the official trust account cash book and/or trust ledger; and
Intermingling trust monies with monies belonging to him and other persons.
In his Reply filed 30 April 2012 the Respondent did not dispute any of the particulars of the grounds in the Application filed 15 July 2009, which include particulars of all of the grounds relied upon in the application of filed 11 September 2012.
The Grounds alleged in Application 122019 filed 17 August 2012 are as follows:
1.Misleading the District Court in the matter of R v Christopher Ronald Fitzsimons District Court of NSW matter number 2009/11/0787 ["The District Court proceedings"];
2.Misleading the Supreme Court in the matter of Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons Supreme Court of NSW matter number 265686/2010 reported at [2012] NSWSC 260 ["the Prothonotary's proceedings"];
3.Swearing an affidavit on 28 January 2012 in the matter of Council of the Law Society of New South Wales v Maria Angela Fitzsimons Administrative Decisions Tribunal Legal Services Division matter number 090218 ["M A Fitzsimons proceedings"] which the Lawyer knew or ought to have known was false;
4.Swearing an affidavit on 27 May 2012 in the M A Fitzsimons proceedings which the Lawyer knew or ought to have known was false;
5.Misleading or attempting to mislead the Administrative Decisions Tribunal in evidence given under oath in the M A Fitzsimons proceedings on 24 April 2012;
6.Swearing an affidavit on 13 June 2012 in the matter of Council of the Law Society of New South Wales v Christopher Ronald Fitzsimons Administrative Decisions Tribunal Legal Services Division matter number 090217 ["C R Fitzsimons proceedings"] which the Lawyer knew or ought to have known was false;
7.Swearing an affidavit made on 17 February 2006 in the matter of The Law Society of New South Wales v Christopher Ronald Fitzsimons Supreme Court Proceedings matter number 16024 of 2005 ["the Receivership Proceedings"] which the Lawyer knew or ought to have known was false.
In his Reply filed on the day of the hearing (11 September 2012) to the application filed 17 August 2012 the Respondent admitted or did not dispute most of the particulars of the grounds in the Application.

THE EVIDENCE

The evidence comprised:
A1)Affidavit filed 9 July 2009 of Raymond John Collins, Solicitor and Manager of the Professional Standards Department of the Law Society of NSW.
A2)Affidavit filed 7 July 2009 of Leo Gore, Trust Account Inspector.
A3)Affidavit filed 1 July 2009 of Jean Sayer
A4)Affidavit filed 17 August 2012 of Anne-Maree Foord
A5)Affidavit filed 24 May 2012 of Murray Raymond Hamer
A6)Affidavit filed 8 June 2012 of Sastia Pesic (pages 539 - 543 of cross-examination bundle)
A7)Affidavit filed 17 July 2012 of Adam Gelfe (pages 544-5 of cross-examination bundle)
A8)Affidavit filed 10 July 2012 Anne Marie Siddon (pages 652 - 653 of cross-examination bundle)
A9)A9.1 page 40 of cross-examination bundle - affidavit of the Respondent of 17 February 2006 paras 3, 9 and 12
A9.2pages 230 - 233 of cross-examination bundle - affidavit of the Respondent of 27 January 2011 - paras 3, 4 and 19
A9.3pages 362 - 370 of cross-examination bundle - affidavit of the Respondent of 28 January 2012- paras 2, 7, 19, 20, 23, 28 and first of 38
A9.4pages 514 - 519 of cross-examination bundle- affidavit of the Respondent of 27 May 2012 - paras 5, 8, 17, 18 and 24
A9.5pages 566 - 569 of cross-examination bundle - affidavit of the Respondent of 13 June 2012- first sentence para 2, 6, 10, 13
A9.6pages 639 - 640 of cross-examination bundle -- affidavit of the Respondent of 11 July 2011 para 2
A9.7Page 483 - 506 of Transcript of examination-in-chief of Respondent at ADT hearing on 24 April 2012
(Page 142 line 30 to 145 line 28
Page 146 -line 15 to Page 164 line 22.)
R1)Affidavit of Respondent of 29 October 2010 - pages 599 - 600 of cross-examination bundle;
R2)Affidavit of Respondent sworn 13 June 2012
R3)Affidavit of Respondent sworn 27 January 2011
R4)Affidavit of Respondent sworn 11 May 2011 - also annexing Dr Carrie's report - pages 601 - 614 of cross-examination bundle
R5)Affidavit of Respondent sworn 25 May 2011 - pages 615 - 626 of cross-examination bundle
R6)Affidavit of Respondent sworn 11 July 2011 - pages 639 - 640 of cross-examination bundle - annexing Dr Westmore's report
R7)Affidavit of Respondent worn 29 August 2011 - pages 642 - 645 of cross-examination bundle
R8)Judgment of Syme DCJ of 17 December 2009
R9)Supreme Court Judgment of Adams J of 23 March 2012
R10)Second Supreme Court Judgment of Adams J re whether to impose condition on any practising certificate of the Respondent.

STATUTORY PROVISIONS RELIED UPON BY THE APPLICANT

Sections 61 and 62 of the Legal Profession Act 1987 ("the 1987 Act") applied at all material times prior to 1 October 2005 and provided:
61 Money received by solicitor on behalf of another
(1) A solicitor who, in the course of practising as a solicitor in this State, receives money on behalf of another person:
(a) must pay the money, within the time prescribed by the regulations, into a general Trust Account in New South Wales at an approved financial institution and must hold the money in accordance with the regulations relating to trust money, or
(b) if the person on whose behalf the money is received directs that it be paid or delivered to a third party free of the solicitor's control, must ensure that the money is paid or delivered:
(i) before the end of the next working day or, if that is not practicable, as soon as practicable after the next working day, or
(ii) no later than the day allowed by the solicitor's authority or instructions (if that day is later than the day allowed under subparagraph (i)), or
(c) if the person on whose behalf the money is received directs that it be paid otherwise than into a general Trust Account or to a third party, must pay the money as directed and (if the money is to be held under the direct or indirect control of the solicitor) must hold the money in accordance with the regulations relating to controlled money.
(2) In any of those three cases, the solicitor must hold the money exclusively for, and must disburse the money in accordance with the directions of, the person on whose behalf it is held.
(3) This section:
(a) does not prevent a solicitor from depositing money with the Law Society in compliance with section 64, but this section continues to apply to any money so deposited that is repaid to the solicitor, and
(b) does not prevent a solicitor from withdrawing or receiving, from trust money or controlled money:
(i) reimbursement for disbursements paid by the solicitor, or
ii) money for disbursements to be paid by the solicitor, or
iii) money due, or to accrue due, to the solicitor for costs,
so long as the procedure prescribed by the regulations is followed, and
(c) does not affect any enforceable lien or claim that a solicitor has to any money, and
(d) does not prevent a solicitor from exercising a general retaining lien for unpaid costs and disbursements in respect of money in a Trust Account or a controlled money account (other than money received subject to an express direction by the client with respect to the purposes for which the money is to be applied), and
(e) does not prevent a solicitor from holding, or disposing of, a cheque or other negotiable instrument payable to a third party if the solicitor does so on behalf of a client and in accordance with directions given by the client, and
(f) does not affect an authority that a solicitor has and that, apart from this section, is irrevocable.
(4) A lien referred to in subsection (3) (d):
(a) may not be exercised for an amount in excess of the sum of the costs and disbursements unpaid, and
(b) may not be exercised unless the solicitor has delivered a bill of costs and disbursements to the client on whose behalf the money is held.
(5) Money received by a solicitor on behalf of another person:
(a)is not available for payment to a creditor of the solicitor, and
(b) is not liable to be taken in execution of any judgment, order or other process of any court or tribunal at the instance of a creditor of the solicitor, unless the creditor is the person on whose behalf the money is held by the solicitor.
(6) If a Crown Solicitor's Trust Account is established as prescribed by the regulations, this section applies to money received by the Crown Solicitor from a person for whom, or a body for which, the Crown Solicitor acts.
(7) If a Trust Account kept by a solicitor is, as authorised by or under the regulations, operated on by a person other than the solicitor, section 53 of the Trustee Act1925 does not apply to the person in relation to the operation on the Trust Account.
(8) It is professional misconduct for a solicitor to wilfully contravene subsection (1) or (2).
(9) In this section:
"approved financial institution" means a bank, building society or credit union that has an agreement with the trustees of the Public Purpose Fund relating to the payment of interest on general Trust Accounts (as referred to in section 69E).
"controlled money" means money required to be dealt with in accordance with subsection (1) (c) that, while under the direct or indirect control of the solicitor by whom or on whose behalf it is received, is for the time being held otherwise than in a general Trust Account at an approved financial institution.
"trust money" means money required to be dealt with in accordance with subsection (1) (a).
(10) A reference in subsection (1) to a third party does not include a reference to an associate of a solicitor.
62 Keeping of accounts
(1) A solicitor shall keep:
(a) in the case of trust money (within the meaning of section 61)-accounting records, or
(b) in the case of money other than trust money-such accounting records or other records (if any) as may be required by the regulations, that disclose at all times the true position in relation to money received by the solicitor on behalf of another person.
(2) The accounting records referred to in subsection (1) shall be kept in a manner that enables them to be conveniently and properly audited.
(3) Without limiting the generality of subsection (2), the accounting records referred to in subsection (1) shall, if the regulations so require, be kept in such manner as the regulations prescribe.
(4) A wilful contravention of subsection (1), (2) or (3) is professional misconduct.

Section 178A of the Crimes Act 1900 (NSW) provided at the time of the 8 alleged misappropriations by the Respondent to which the Respondent pleaded guilty and for which he was convicted and sentenced by the District Court on 17 December 2009:
178A Fraudulent misappropriation of moneys collected or received
Whosoever having collected or received any money or valuable security upon terms requiring him or her to deliver or account for or pay to any person the whole or any part of:
(a) such money or valuable security or the proceeds thereof, or
(b) any balance of such money, valuable security, or proceeds thereof after any authorised deductions or payments have been made thereout,
fraudulently misappropriates to his or her own use or the use of any other person or fraudulently omits to account for or pay the whole or any part of such money, valuable security, or proceeds, or the whole or any part of such balance in violation of the terms on which he or she collected or received such money or valuable security, shall be liable to imprisonment for seven years.
For the purposes of this section any such money, valuable security, or proceeds thereof, or any balance thereout shall be deemed to be the property of the person who authorised the collection or receipt of tile money or valuable security or from whom the money or valuable security was received notwithstanding that the accused may have been authorised to make any deduction thereout on his or her own behalf, or any payment thereout to another person, or to mix such money, valuable security, or proceeds thereof, or such balance with his or her own moneys.
Section 300 of the Crimes Act 1900 NSW provided at the time of the 3 offences under the section to which the Respondent pleaded guilty and was sentenced by the District Court on 17 December 2009:
300 Making or using false instruments
(1) A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person:
a) to accept the instrument as genuine, and
(b) because of that acceptance, to do or not do some act to that other person's, or to another person's, prejudice.
is liable to imprisonment for 10 years.
(2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person:
(a) to accept the instrument as genuine, and
(b) because of that acceptance, to do or not do some act to that other person's, or to another person's, prejudice,
is liable to imprisonment for 10 years.
The relevant provisions of the Legal Profession Act 2004 ("the 2004 Act") have applied on and since 1 October 2005. Section 254 of the Legal Profession Act 2004 provides:
254 Certain trust money to be deposited in general Trust Account
(1) Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general Trust Account of the practice unless:
(a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or
(b) the money is controlled money, or
(c) the money is transit money, or
(d) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person.
Maximum penalty: 100 penalty units.
(2) Subject to section 258A, a law practice that has received money that is the subject of a written direction mentioned in subsection (1) (a) must deal with the money in accordance with the direction:
(a) within the period (if any) specified in the direction, or
(b) subject to paragraph (a), as soon as practicable after it is received.
Maximum penalty: 100 penalty units.
(3) The law practice must keep a written direction mentioned in subsection (1) (a) for the period prescribed by the regulations.
Maximum penalty: 50 penalty units.
(5) A person is an "appropriate person" for the purposes of this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money.
Section 257 of the Legal Profession Act 2004 provides:
257 Transit money
(1) Subject to section 258A, a law practice that has received transit money must pay or deliver the money as required by the instructions relating to the money:
(a) within the period (if any) specified in the instructions, or
(b) subject to paragraph (a), as soon as practicable after it is received.
Maximum penalty: 50 penalty units.
(2) The law practice must account for the money as required by the regulations.
Maximum penalty: 50 penalty units.
Section 260 of the Legal Profession Act 2004 provides:
260 Intermixing money
(1) A law practice must not, otherwise than as permitted by subsection (2), mix trust money with other money.
Maximum penalty: 100 penalty units.
(2) A law practice is permitted to mix trust money with other money to the extent only that is authorised by the Law Society Council and in accordance with any conditions imposed by the Law Society Council in relation to the authorisation.
Section 264 of the Legal Profession Act 2004 provides:
264 Keeping trust records
(1) A law practice must keep in permanent form trust records in relation to trust money received by the practice.
Maximum penalty: 100 penalty units.
(2) The law practice must keep the trust records:
(a) in accordance with the regulations, and
(b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person, and
(c) in a way that enables the trust records to be conveniently and properly investigated or externally examined, and
(d) for a period determined in accordance with the regulations.
Maximum penalty: 100 penalty units.
Subrule 12.1 of the Revised Professional Conduct and Practice Rules 1995 provides:
12.1A practitioner must not borrow any money, nor assist an associate to borrow any money from a person:
12.1.1 who is currently a client of the practitioner, or the practitioner's firm;
12.1.2 for whom the practitioner or the practitioner's firm has provided legal services, and who has indicated continuing reliance upon the advice of the practitioner, or the practitioner's firm in relation to the investment of money; or
12.1.3 who has sought from the practitioner, or the practitioner's firm, advice in respect of the investment of any money, or the management of the person's financial affairs.

UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT

The relevant provisions of the Legal Profession Act 2004 defining these concepts are as follows:
496Unsatisfactory professional conduct
For the purposes of this Act:
"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
497Professional misconduct
(1) For the purposes of this Act:
"professional misconduct" includes:
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
498Conduct capable of being unsatisfactory professional conduct or professional misconduct
(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,
(b) charging of excessive legal costs in connection with the practice of law,
(c) conduct in respect of which there is a conviction for:
(i) a serious offence, or
(ii) a tax offence, or
(iii) an offence involving dishonesty,
(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration,
(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,
(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),
(g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),
(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

ALLEGATIONS PROVED IN RESPECT OF GROUNDS IN AMENDED APPLICATION 092017

All of the particulars in the Grounds set out in the Amended Application 092017 were originally set out in the Application commencing those proceedings. That document was filed with the Tribunal in July 2009. The Respondent did not file any Reply to that Application and the particulars in it until 30 April 2012. That Reply did not deny or admit the particulars set out in relation to the various grounds. He did not admit even the facts in relation to the 8 counts of misappropriation and 3 counts of making and using false instruments to which he pleaded guilty in the District Court and was convicted and sentenced to 9 months imprisonment on 17 December, 2009 with 12 months parole.
In relation to the allegations that were the subject of the Criminal Proceedings in the District Court the Respondent claimed in his Reply there was an estoppel that prevented the Law Society from proceedings those grounds because they were the subject of criminal charges brought against the Respondent under the Crimes Act (NSW).
In relation to the remaining matters, the Respondent said: "The Respondent does not deny the facts and particulars set out in the Application and cannot comment upon or dispute them in any meaningful way as he has little or no recollection of the files and clients concerned." He then relies upon a diagnosis of suffering from Bi-polar Effective Disorder.
Ground 1: In June 2001 the Respondent misappropriated $130,000.00 of funds he held in trust for the Battye Estate. The file for the matter is missing. On 26 June 2001 the Respondent drew a cheque for $130,000.00 against trust funds held on behalf of the Estate and used those funds to purchase a bank cheque payable to the Commonwealth Bank. He deposited the bank cheque the same day into a joint account of the Respondent and his wife at the Commonwealth Bank at Chatswood ("the joint account").
The payment was falsely recorded in the trust ledger as a distribution to a beneficiary.
Ground 2: On 14 August 2001 the Respondent misappropriated $80,000.00 of trust funds he held on behalf of the Battye Estate by drawing a cheque against the funds held in the trust account of his law practice (the "official trust account") for that amount and then depositing the cheque in the "joint account".
The payment was falsely recorded in the trust ledger as a distribution to a beneficiary.
Ground 3: On 18 October 2001 the Respondent misappropriated $20,000.00 of trust funds held on behalf of the Battye Estate by drawing a cheque for that amount against the trust account and depositing those funds in the joint account.
The payment was falsely recorded in the trust ledger as a distribution to a beneficiary.
Ground 4: On 18 February 2002 the Respondent misappropriated $50,295.00 from trust funds he held on behalf of the Keg Estate. He drew a cheque on the official trust account and deposited that cheque the same day into a cash management account in his name with the Commonwealth Bank. On 4 March 2002 the funds from the account with interest amounted to $51,412.67. He withdrew that amount and closed the account. He falsely detailed in the trust ledger "Commonwealth Bank payment to client's A/c - B/Cheque". The solicitor failed to account to the executor of the Estate for the amount of $51.312.67 that he misappropriated. This was a misappropriation for which the Respondent was prosecuted. He pleaded guilty and was sentenced on 17 December 2009.
Ground 5: The Respondent wilfully breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the Keg Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 6: The Respondent intermingled the trust moneys of Keg Estate with moneys belonging to him and other persons.
Ground 7: Between 10 May 2002 and 1 June 2002 the Respondent misappropriated a total of $286,931.48 from the Estate of the Late M I Nettelbeck. He received the proceeds of a bank account ($3,798.59) on behalf of the Executrix. Those funds were trust funds. He wrote to the Executrix and told her he would hold the funds pending further instructions as to the method and time for payment to the beneficiaries. Instead, on 12 April 2002, he deposited those funds into the joint account. The whole of those funds was subsequently used by him and his wife by 26 April 2002. He misappropriated the trust monies of $3,798.59.
Ground 8: The Respondent wilfully breached Section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the Nettelbeck Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the Estate.
Ground 9: The Respondent intermingled the trust moneys of the Estate with moneys belonging to him and his wife.
Ground 10: On 13 May 2002 the Executrix, who was purchasing a property owned by the Estate and whose company was also the mortgagee of the property, provided the Respondent with a cheque for $111,351.00, which the Respondent had told her was the amount required for her to contribute (with other trust funds already held to which she was entitled) in order to acquire the property. Those funds were trust moneys. The Respondent did not deposit them to any trust account. He misappropriated them to an investment account in the joint names of himself and his wife at the Commonwealth Bank at Martin Place ("the direct investment account"). This and the misappropriation of $171,781.99 from the same Estate comprised one of the misappropriation charges to which the Respondent pleaded guilty in the District Court, was convicted and sentenced.
Ground 11: The Respondent wilfully breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the client's trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 12: The Respondent intermingled the client's trust moneys with moneys belonging to him and his wife.
Ground 13: For settlement of the sale of the property, the Respondent directed the drawing of a Trust Account cheque for $171,781.99 against trust funds in the estate of the father of the executrix (to which the executrix was beneficially entitled) payable to the Commonwealth Bank of Australia. On 10 May 2002 he deposited that into the joint investment account. The funds in the investment account were dissipated mainly by Netbank transfers to other accounts kept by the Respondent and his wife. The investment account was overdrawn by 6 August 2002. The Respondent misappropriated the $171,781.99. This and the preceding ground comprised one of the misappropriation charges to which the Respondent pleaded guilty in the District Court, was convicted and sentenced.
Ground 14: The Respondent again wilfully breached section 62 of the Act by failing to keep accounting records in relation to the client's trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 15: The Respondent intermingled the trust moneys of the client with moneys of him and his wife.
Ground 16: On 29 July 2003 the Respondent made false entries in the trust account records to the effect that:
·A deposit of $3,000 in cash credited to the trust account of another client, Ms Clarke was from Ms Clarke; and
·
·a cheque for $3,000 provided to a beneficiary in the Nettlebeck Estate, was drawn from trust money of Ms Clarke for "A J McKenzie- Debt payment Alice Clarke purchase".
Ground 17: The Respondent wilfully breached section 62 of the 1987 Act by failing before 1 October 2005 to keep accounting records in relation to the Nettelbank Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 18: On 26 August 2002 the Respondent misappropriated a total of a further $84,110.36 by drawing two cheques against the trust funds of Battye Estate, each in the sum of $42,055.18. He deposited one cheque to the credit of his Gold Mastercard account with the Commonwealth Bank and deposited the second cheque to his Visa Gold credit card with the same bank.
Again the Respondent made false entries in the official trust ledger in that the payment was falsely recorded in the ledger as a distribution to a beneficiary.
Ground 19: The Respondent wilfully and repeatedly made false entries in the official trust account cashbook and ledger in relation to the trust money of Battye Estate.
Ground 20: The Respondent wilfully and repeatedly breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the Battye Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 21: The Respondent wilfully breached section 264 of the 2004 Act on and after 1 October 2005 by failing to keep trust records in relation to the trust money of the Battye Estate in a way that at all times disclosed the true position, particularly in relation to the 4 payments from the trust money described above.
Ground 22: The Respondent made false entries in the trust account ledger. For each of the 5 cheques the Respondent drew against the trust funds of Battye Estate in the trust account, he falsely recorded in the trust account ledger that the cheque was a payment to a beneficiary of the estate and was in respect of the beneficiary's entitlement in the estate.
Ground 23: The Respondent intermingled trust moneys of Battye Estate with moneys belonging to him and other persons.
Ground 24: On 6 December 2002 the Respondent misappropriated trust funds of $65,817.17 that he held on behalf of the Executor of Skehan Estate. His file relating to the Estate has not been found. The solicitor had received into his Trust Account on 5 November 2002 the relevant amount. On 6 December 2002 he drew a cheque against the Trust Account for that amount which is shown as a distribution from the Estate to a beneficiary. The cheque was not paid to the Beneficiary concerned. It was deposited to the joint account. However, 19 months later on 6 July 2004 funds in the joint account were used to purchase bank cheques payable to the 5 beneficiaries to a total of $65,817.17; the amount misappropriated.

Ground 25: The Respondent intermingled trust moneys of Skehan Estate with money belonging to him and his wife.
Ground 26: By letter of 28 February 2003 the Respondent and his wife requested a loan of $60,000.00 from his client Metrotex International Ltd. The amount was lent by the client the same day. On 5 February 2004 a cheque for $63,936.06 was drawn on the joint account payable to Metrotex International Ltd and was paid to that company by way of repayment of the loan plus interest.
The conduct of the Respondent in borrowing from his client was a breach of Subrule 12.1 of the Revised Professional Conduct and Practice Rules 1995.
Ground 27: Ms Williams and another woman were clients of the Respondent in realising the assets of a deceased Estate. The sale of an Estate property at Dee Why was settled on 16 May 2003 and each of the two women was entitled to receive a distribution of $305,388.31 from the Estate. The funds from the sale had been deposited to the trust account and credited to the ledger for the clients.
The Respondent paid the other woman her full entitlement of $305,388.31. He drew two cheques in respect of the entitlements of Ms Williams. In accordance with her instructions, one was payable to her and in the sum of $205,388.31(to be sent to her) and the other was payable to the Commonwealth Bank and was for $100,000.00 (for an Interest Bearing Deposit).
On the same day the cheque for $100,000.00 was deposited to the joint account. By 4 June 2003 that account had a balance of only $23,167.74. The drawing of the cheque for $100,000.00 and deposit of it into the joint account was a misappropriation of $100,000.00 of trust moneys.
However, on 18 June 2003, a cheque for $100,583.33 was drawn on the joint account payable to Ms Williams, and it appears was paid to her.
Ground 28: On 28 June 2003 the Respondent misappropriated a sum of $6,200.00 from trust funds he held on behalf of the Estate of Larcombe. He drew a cheque for that amount from the trust account and deposited that cheque into the joint account. He showed it in the Trust Account ledger as "J. Ankin - Distribution".
Ground 29: On 16 October 2003 the Respondent misappropriated a further $15,00.00 of funds held in trust on behalf of the Larcombe Estate. He drew the trust account cheque and deposited it into the joint account. It showed in the ledger that it was: "Paid to CBA for J. Ankin".
Ground 30: On 14 November 2003 the Respondent misappropriated another $10,300.00 from the trust funds held on behalf of Larcombe Estate. He drew the cheque against the trust account and deposited the cheque in the joint account. He entered in the ledger the explanation: "J. Ankin - interim distribution".
Ground 31: The Respondent intermingled the Larcombe Estate trust money with monies belonging to him and his wife on each of these 3 occasions. The funds misappropriated were used to pay credit card debts of each of the Respondent and his wife and pay $5,300.00 to TAB Limited, apparently a debt of the Respondent. They were also used for other purposes not established by the investigations.
Ground 32: For the 3 cheques referred to above drawn against the trust money of Larcombe Estate, each time the Respondent made a false entry in the trust account ledger for the Estate purporting that the cheque was payable to a beneficiary of the Estate as part of that person's entitlement.
Ground 33: The Respondent wilfully breached section 62 of the 1987 Act prior to 1 October 2005 by failing to keep accounting records in relation to Larkim Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 34: The Respondent acted for Paradigma Products Pty Ltd on the sale of a property at Noosa Heads. On about 10 October 2003 he received from the purchaser a deposit of $60,500.00. Instead of depositing those trust funds into the Trust Account, he deposited the cheque to the joint account on 14 October 2003. Trust account receipt 8368 was issued to the Purchaser in respect of the payment of the deposit. But the receipt issued was not from the current receipt book relating to the official Trust Account. The receipt concerned was taken from a receipt book used in May 2001 and the receipts cash book for that period includes a notation: "368 not used". The receipt book current at the time of the transaction comprised receipts numbered 8601 to 8700 inclusive for the period 24 October 2003 to 23 March 2004.
The sum of $60,500.00 was used by the Respondent and his wife.
When the Purchaser consented to $25,000.00 of the deposit to be released, the Respondent caused a cheque to be drawn on the joint account for $25,000.00 and used it to pay the $25,000.00.
Thirty five thousand dollars of the funds paid to the vendor on settlement in fact came from a cheque drawn on the trust account against the ledger account of a different client holding funds provided for the payment of stamp duty.
The Respondent misappropriated the $60,500.00 of trust funds he held on behalf of Paradigma Products Pty Ltd.
Ground 35: The Respondent again wilfully breached section 62 of the 1987 Act by failing to keep accounting records in relation to Paradigma Products Pty Ltd trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 36: The Respondent made a false entry in the Trust Account receipts cash book.
Ground 37: In the trust ledger record of a client, Mr Freeman, the Respondent falsely recorded that a cheque for $35,000.00 drawn against that client's trust money on 24 November 2003 to pay the stamp duty for Paradigma Products Pty Ltd was for "CBA Chatswood - Duty and Establishment fees". The cheque was used towards providing funds to Paradigma Pty Ltd to replace funds of that company the Respondent had misappropriated. The drawing of that cheque overdrew the Freeman trust moneys by $42.50.
Ground 38: On 27 November 2003 the Respondent and his wife exchanged Contracts for the sale by them to Caymex Pty Ltd, of a property at Walsh Bay for $3,050,000.00. The deposit was payable by the Purchaser by two instalments of $152,500.00 each.
On 27 November the purchaser's solicitors sent the signed contract and a cheque for $152,500.00 payable to Richard Cooper Prestige Real Estate, the Agent on the sale.
The Respondent's wife had the conduct of the matter in the law practice. She wrote to the solicitors for the Purchaser on 28 November concerning the exchange and enclosed a trust account receipt "for the 5% deposit". She said: "I'll send you the Statutory Notice for the investment of the deposit in a couple of days and I confirm that it has been found that the Agent does not hold a Trust Account."
But the amount of $152,500.00 was not deposited into the trust account. There is no record of any trust account receipt having been issued from the receipt book in use for the official trust account. Instead, the cheque was deposited on 28 November 2003 to the direct investment account. Prior to the deposit the balance of that account was only $396.22. By 16 December, 2003, the balance of the account had been reduced to $18,492.51 by payments from that account not related in any way to the real estate transaction. By 6 January 2004 the balance of the account was reduced to $766.07.
The deposit of trust monies of $152,500.00 into the direct investment account instead of the official Trust Account was a breach of the requirement of Section 61 of the 1987 Act requiring that such funds be paid into the General Trust Account and held "in accordance with the Regulations relating to trust money".
Ground 39: The second instalment of the deposit on the sale of the Walsh Bay property ($152,500.00) was forwarded to the Respondent for the attention of his wife on 9 January 2004. The cheque was deposited to the direct investment account on 12 January 2004. The prior balance of the account was $766.07. By 22 January 2004, despite the recent deposit of $152,500.00, the balance of the account had been reduced to $81,966.07.
The whole of the deposit moneys of $305,000.00 were dissipated in payment of expenses of the Respondent and his wife before settlement of the sale.
The deposit of trust monies of $152,500.00 into the direct investment account instead of the official Trust Account was a breach of the requirement of Section 61 of the 1987 Act requiring that such funds be paid into the General Trust Account and held "in accordance with the Regulations relating to trust money".
Ground 40: On 13 March 2004 the Respondent received from the Commonwealth Bank trust funds on behalf of the Estates of Linda Kroll and Tilt Kroll, and deposited those funds into his trust account. On 15 April 2004 the Respondent misappropriated $50,000.00 of those trust funds by drawing a cheque for that amount and depositing those funds into the joint account. The trust ledger indicated that the payment was a payment to K. Pool as an interim distribution. The funds were used to pay personal expenses of the solicitor.
Ground 41: The Respondent intermingled the $50,000.00 trust money with moneys belonging to him and his wife.
Ground 42: On 22 April 2004 the Respondent drew a further cheque for $25,000.00 on the trust funds of the Estates. The entry in the ledger shows that this was a payment to K. Pool as "A/c transfer interim distribution". However, the amount was deposited on 23 April 2004 to an account in the names of the Respondent, his wife and his daughter with the Commonwealth Bank at Cairns (the "family account"). The Respondent misappropriated the sum of $25,000.00. The funds were used to pay personal expenses of the solicitor. This was one of the misappropriations for which the Respondent was charged and for which the Respondent pleaded guilty in the District Court, was convicted and sentenced.
On 10 May 2004 the sum of $75,000.00 was paid to Mrs M Pool for the Estates of Kroll from the joint account using funds covered by the receipt into the account of $75,000.00 from Peron Pty Ltd, which was subsequently returned to Peron Pty Ltd on 15 July 2004 from the same account.
Ground 43: The Respondent intermingled the $25,000.00 trust money of Kroll Estate with moneys belonging to him and his wife.
Ground 44: The Respondent made false entries in the "official trust account" cash book and ledger in respect of the banking of the amounts of $50,000.00 and $25,000.00.
Ground 45: The Respondent wilfully breached section 62 of the 1987 Act by failing in 2004 and up to 30 September 2005 to keep accounting records in relation to receipts and disbursements of trust moneys of the Krull Estates that disclosed at all times the true position in relation to that trust money he received on behalf of the client.
Ground 46: In relation to the cheques for $50,000.00 and $25,000.00 the Respondent made false entries in the trust account ledger recording that each was paid to K Poole and was by way of interim distribution by the estate to K Poole as beneficiary.
Ground 47: The Respondent misappropriated $98,000.00 in trust funds received on behalf of his client, Mr Fong. The Respondent was acting for Mr Fong on the sale of property at St Ives for $980,000.00. Contracts were exchanged and a deposit of $98,000.000 was received by the practice on about 11 May 2004. A Trust Account receipt was issued number 8122 dated 11 May 2004, and described the receipt as "Deposit moneys". The solicitor signed the receipt. The receipt was not from the current receipt book, in which the receipts are numbered 8717 to 8726. Also, the official receipts issued at that time showed the practice address as 73 Albert Avenue, Chatswood, but the receipt issued to the Purchaser showed the address of the practice as 71-73 Archer Street, Chatswood.
The cheque for the sum of $98,000.00 was not deposited to the official trust account. It was deposited to the family account on 12 May 2004 and the funds were used for expenses of the Respondent and his wife.
On 11 August 2004 the Respondent's wife prepared a statement for Mr Fong concerning the deposit. The statement shows the deposit as being disbursed as follows:
Costs in respect of Sale$ 1,794.50
Costs in respect of Family Law matters$ 2,866.00
Draft residential - agent's selling costs$ 15,782.00
Balance deposited to the account of Mr Fong$ 77,557.50
Total$98,000.00
The real estate agent was paid the sum of $15,782.00 by a cheque drawn on the account of the Respondent and his wife with the HSBC Bank Australia Ltd dated 3 September 2004. It was a cheque drawn on a personal account for moneys said to be held in trust.
The Receiver of the practice was unable to trace the payment of $77,557.50 to Mr Fong. The payment was not made from any of the bank accounts of which the Receiver has details.
Ground 48: The Respondent after 1 October 2005 wilfully breached section 264 of the 2004 Act by failing to keep trust records in relation to the trust money of Mr Fong in a way that at all times disclosed the true position.
Ground 49: The solicitor acted for the Executors of the Estate of the Late Frederick William Grover. The files have not been found. Property belonging to the estate was sold for $587,000.00. The balance of the deposit after deduction of interest was $44,278.58 and was received by the Respondent from the Agent on 3 June 2004. Instead of depositing those trust moneys into the trust account, the Respondent deposited those funds to the joint account. Those trust funds were used to pay credit card debts and other personal expenses of the solicitor. The Respondent misappropriated the sum of $44,278.58.
Ground 50: On 27 May 2004 the Respondent settled the sale by Ms Seddon of a property belonging to the Seddon Estate. The file has not been found. The amount of $788,120.85 in trust funds was received and deposited in the official Trust Account. Ms Seddon was paid her entitlement from the proceeds of sale on 28 May 2004 in the sum of $278,798.70. On 21 June 2004 there was $22,599.39 remaining in the Trust Account, and the Respondent drew a cheque on that amount. The Trust Account records show this as: "E. Seddon. Ref. of commission to CBA."
In fact the Trust Account cheque was drawn payable to the Commonwealth Bank and used to purchase a bank cheque payable to the Commonwealth Bank on 21 June 2004. The cheque was then deposited to the joint account. The Respondent misappropriated the sum of $22,599.39.
Before that cheque was deposited to the joint account, the balance of the joint account was only $3,631.29. The funds were used to cover payment of credit cards of the solicitor and the account was reduced to $2,160.68 by 29 June 2004.
Ground 51: On 28 May 2004 the Respondent drew a cheque for $7,000 on the trust moneys held for the Seddon Estate in the official trust account. He denoted it as a transfer in payment of his costs in Supreme Court proceedings and deposited the cheque into his general account. His costs for the Supreme Court proceedings had already been paid. He misappropriated the $7,000.00.
Ground 52: The Respondent also drew a cheque for $4,193.64 on the trust moneys held for the Seddon Estates in the official trust account. He denoted it as a transfer in payment of his costs in the Estate of Seddon and deposited the cheque into his general account. His costs billed for the estate were $2,450.00 less than the amount he took. He misappropriated the $2,450.00.
Ground 53: Later the Respondent similarly took a total of $1,587.39 from the trust monies for Seddon Estates to which he was not entitled. He misappropriated the $1,587,39.
Ground 54: The Respondent wilfully breached section 62 of the 1987 Act prior to 1 October 2005 by failing to keep accounting records in relation to the Seddon Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 55: The applicant alleged the Respondent wilfully breached section 260 of the 2004 Act by mixing Seddon Estates trust money with other money without authorisation from the Law Society. However, all of the transactions in evidence concerning the trust funds of the Seddon Estates occurred before the 2004 Act commenced to apply on 1 October 2005. This ground was not established.
Ground 56: In relation to the Estate of F W Grover, by 18 October 2004 the Respondent was holding trust moneys of $452,307.55 in the official trust account. The Respondent drew 3 cheques against those funds one each on 20 October 2004 ($20,000.00), 25 October 2004 ($5,659.50), and 29 October 2004 ($20,000.00).
The withdrawals were made without any documentation other than a withdrawal form. No details were given in the trust ledger of the Estate and the three amounts were added to the payments in the cash book for the month of October 2004 without details. The two payments of $20,000.00 were in fact deposited to the joint account on 20 October 2004 and 29 October 2004. Prior to those deposits, the balance of the joint account was $84.42.
Of the $45,659.50 taken, $17,326.00 was subsequently paid by bank transfer to the Respondent's general account to pay his American Express card account. Seven thousand dollars of the funds was transferred to the family account, and $12,000.00 was used for payments in respect of the Respondent's Virgin credit card. Six thousand dollars was withdrawn in cash.
The sum of $5,659.50 drawn on 25 October 2004 was deposited to the general account of the Respondent.
The Respondent misappropriated the $45,659.50.
Ground 57: On 1 November 2004 the Respondent misappropriated a further $6,000.00 from the funds held in trust for Grover Estate by withdrawing it from the trust account and showing it as payment of funds held on behalf of the Grover Estate and for "Payment to D Grover - interim distribution in the Estate Grover". In fact the cheque was cashed by the Respondent. He obtained the funds in $50.00 notes.
Ground 58: The Respondent misappropriated a further $24,000.00 from Grover Estate on 22 November 2004. He drew trust account cheque No. 001343 for $24,000.00 against the trust funds held on behalf of the Estate. In Trust Account records he describes the payment as being made to D Grover as "Interim distribution - Estate Grover". In fact, the Respondent deposited the money to the joint account. The then balance of the joint account funds were used for expenses of the Respondent and his wife including $10,000.00 to Virgin credit cards and $12,000.00 by transfer to the family account.
As at 22 November 2004, there was a total shortage in the trust funds held on behalf of the Grover Estate of $119,938.08.
Ground 59: The Respondent acted as the Executor of Harkess Estate. The file in relation to the matter has not been located. The solicitor received a cheque for $61,750.75 on or before 8 November 2004. The cheque was for funds owned by the Estate. It was trust moneys. The Respondent deposited the cheque to the joint account. The balance of the joint account prior to the deposit was $2,748.42, but after electronic transfers and payments were debited to the account, the account contained only $5,018.87 by 16 November 2004.
The Respondent misappropriated the sum of $61,750.75 being trust funds he received on behalf of the Estate. This was one of the misappropriations for which the Respondent was charged and to which the Respondent pleaded guilty in the District Court, was convicted and sentenced.
Ground 60: The Respondent wilfully breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the Harkess Estate trust money received and disbursed by him that at all times disclosed the true position.
Ground 61: The Respondent after 1 October 2005 wilfully breached section 264 of the 2004 Act by failing to keep trust records in relation to the trust money of Harkess Estate received and disbursed by him in a way that at all times disclosed the true position.

Ground 62: In December 2004 the Respondent had acted on settlement of some real estate transactions by Ms Wilson. He asked to borrow $600,000.00 from her from funds she had netted from her transactions. She agreed to that. He offered as security a first mortgage over a unit at Potts Point, owned by himself and his wife. He said it had a current value of $2.2 million dollars.
The file for the real estate transactions has not been located. The Respondent gave Ms Wilson a purported copy of the mortgage. The title reference is not that of any property at Potts Point. It is that of a storage cage owned by the solicitor and his wife in Kings Cross. The original mortgage has not been located. The mortgage was not registered. The Respondent received $476,034.94 by way of trust moneys on behalf of Ms Wilson from her real estate transactions. He also had her endorse payable to an account in the name of himself and his wife, the balance of the deposit from a sale being $69.148.40. He also obtained a further amount of $57,619.12 from Ms Wilson. The total of these amounts lent by Ms Wilson was $602,802.50.
The Respondent used $126,767.50 to make good deficiencies in respect of trust funds taken from the trust money of other clients and in payment of credit card accounts and other expenses of himself and his wife. The amount of $476,034.94 was deposited into the joint account of himself and his wife. By 14 February 2005 the balance of that account was only $36.32.
The Respondent breached Subrule 12.1 of the Revised Professional Conduct and Practice Rules 1995 by borrowing money from a client. He also did this by deceiving the client by use of a mortgage document which did not have the effect that he told her it had and did not provide the security that he told Ms Wilson it would provide.
Ground 63: While acting for the Grover Estate the Respondent purported to effect a final distribution to the Beneficiaries on 20 December 2004. But a balance of trust moneys remained in the trust ledger account in the sum of $54,051.52.
On 3 February 2005 a cheque was drawn on the official trust account for that sum for the purchase of a bank cheque payable to the Commonwealth Bank. Although the cheque was entered into the trust account cash payments records as a payment for the Estate, it was not debited to the trust ledger account of the Estate. The cheque was deposited on 3 February 2005 to the joint account. It was used as part of the payment of $264,000.00 payable by the Respondent to G & H Hancock in respect of funds the Respondent had misappropriated from them.
The Respondent misappropriated the trust funds of $54,051.52 received on behalf of the Grover Estate.
Ground 64: The respondent repeatedly made false entries in the official trust account cash book and ledger in relation to the Grover estate trust money.
Ground 65: The Respondent wilfully breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the Grover Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 66: The Respondent wilfully breached section 264 of the 2004 Act after 1 October 2005 by failing to keep trust records in relation to the trust money of the Grover Estate in a way that at all times disclosed the true position.
Ground 67: The Respondent repeatedly intermingled trust money of the Grover estate with monies belonging to him or to him and his wife.
Subsequently, on 12 August 2005, a cheque for $54,051.52 was drawn on the family account to purchase a bank cheque payable to Mr D F Grover. The funds to support this cheque came from the misappropriation of $175,000.00 from trust moneys held for the Estate of the Late P G Freeman, deposited on 12 August 2005 to the family account.
Ground 68: On 7 March 2005 the Respondent was holding substantial trust funds in the official trust account for G Hancock & Associates Pty Ltd. A cheque was drawn that day on the official trust account from the funds held on behalf of the company to purchase a bank cheque payable to the Commonwealth Bank of Australia in the sum of $594,000.00, described in the Trust Account records as "For settlement". But the cheque was not for settlement. It was deposited to the family account at Cairns the same day. The Respondent misappropriated the trust funds of $594,000.00.
Before the deposit to the family account the credit balance of the account was $1,920.38. On the same day, after the deposit, there were transfers from the account totalling $19,184.85 in payment of, among other things, motor vehicle payments and home loan payments.
The Respondent was subsequently able to settle the purchase by his client company, for which the funds should have been available, by misappropriating trust funds he held on behalf of Nuera Australia Pty Ltd.
Ground 69: The Respondent made false entries in the Trust Account Cash Book and Ledger.
Ground 70: The Respondent wilfully breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the G Hancock & Associates Pty Ltd trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client.
Ground 71: The Respondent intermingled the trust funds of G Hancock & Associates Pty Ltd with funds of himself, his wife and his daughter.
Ground 72: On about 6 April 2005 the Respondent requested a client, Ms Seddon, to lend him "up to $50,000.00". She lent him $20,000.00 and the cheque for those funds was deposited to the joint account on 6 April 2005. The conduct of the Respondent in borrowing from his client was a breach of Subrule 12.1 of the Revised Professional Conduct and Practice Rules 1995.
Ground 73: The Respondent acted for Nuera Australia Pty Ltd in respect of a claim against Mr Bain and Tex Force Australia Pty Ltd. On about 16 February 2005 costs were awarded against the client to Tex Force Australia Pty Ltd in the sum of $21,514.60.
At the request of the Respondent, his client delivered a cheque for that sum to his Chatswood office on 8 March 2005. The cheque was payable to the Respondent. Instead of depositing the trust funds to the Trust Account, the Respondent deposited the funds to the family account at the Commonwealth Bank in Cairns. It provided some of the funds used to settle the Hancock purchase.
Nearly three months later, on 30 May 2005, the Respondent drew a cheque for $21,514.60 from the joint account to pay Tex Force Australia Pty Ltd. The funds of the joint account to support the payment of this cheque came from misappropriation of trust moneys that the Respondent had held on behalf of the Freeman Estate. The Respondent misappropriated the amount of $21,514.60 in trust money given to him by his client on 8 March 2005.
Grounds 74, 75 & 76: In relation to the Estate of Nettelbeck, on 5 April 2005 the Respondent sent the Executrix a statement purporting to show receipts and payments in relation to trust monies in the estate. The document falsely stated that payments had been made in June 2002 to a beneficiary Ms Meekings ($3,000.00) and to the 3 charities that were the residual beneficiaries ($92,377.67 each). None of those beneficiaries had been paid. The Respondent knew that the statements in the document that the payments were made was false.
The Executrix, requested that he provide her with copies of the cheques and receipts relating to the payment of the distributions which he had said in his letter of 5 April 2005 had been made. The Respondent did not respond until 4 May 2005, and then enclosed forged copies of Trust Account cheques that purported to pay a total of $280,133.01 to the 3 charities and a forged receipt from each of the 3 charities, each purporting to acknowledge payment of $92,377.67.
Each of the copy cheques dated 3 June 2002 included an endorsement by the Respondent: "Bank cheque payee". The butts of the cheque book showed the relevant cheques (numbered 2023 to 2026) were: "Cancelled closed".
There were no moneys ever held in the official Trust Account of the solicitor in relation to the Nettelbeck Estate. The funds received from the Executor had been deposited to the direct investment account.
The 3 criminal charges against the Respondent under section 300 of the Crimes Act to which he pleaded guilty and was sentenced each related to one of the following false instruments: the false statement of receipts and payments, the forged copies of cheques and the forged receipts. The conduct giving rise to each of these 3 convictions is a ground relied upon by the Law Society.
The Executrix informed the Respondent in June 2005 that Ms Meekings had not received her legacy of $3,000.00. The solicitor wrote to Ms Meekings on 20 June 2005 enclosing a cheque in the sum of $3,000.00, which had been covered by a withdrawal on 20 June 2005 of $3,000.00 from the joint account.
Ground 77: The Respondent acted for Mr Freeman in relation to the Estate of his late wife. On 27 May 2005 the Respondent opened the "premium business account" in the name of the Estate. The only assets of the Estate were several bank accounts and property to be transferred to Mr Freeman. The Respondent received trust funds of $581,456.59 from the bank accounts and that was deposited to the "premium business account". Interest accumulated as well.
Between 27 May 2005 and 18 August 2005, the Respondent misappropriated the whole of the funds in that account ($582,665.79).
On 16 September 2005 the Respondent opened an account in his name with the Commonwealth Bank Chatswood titled "Christopher Ronald Fitzsimons Trust Account". It was not approved by the Law Society as a Trust Account and is referred to here as "the unofficial trust account".
On 31 October 2005 the Respondent paid Mr Freeman $581,929.05 by a cheque drawn on the unofficial Trust Account. The payment was purported to be satisfaction of the Estate entitlements in respect of the funds from the premium business account (including interest). The funds used in the unofficial Trust Account to meet the cheque given to Mr Freeman were in part trust funds of Haylen Estate that the Respondent had misappropriated.
Ground 78: Letters of Administration were granted to Ms Roberts on 14 September 2005 in relation to the Haylen Estate. The Respondent's file in relation to the matter has not been located. The Respondent received in October 2005 a total of $711,465.68 in collecting the assets of the Estate, including proceeds of sale from real estate.
$375.34 of the trust money was deposited to a Trust Account which was subsequently closed on 31 March 2005. A dividend of $258.90 received from IAG has not been traced. The remaining four amounts he received total $710,831.44 and were deposited to the "unofficial Trust Account" in October 2005. By 1 November 2005 subsequent transfers from those funds to the "joint account" came to $273,190.00.
The Respondent misappropriated various amounts from those funds by transferring them to the personal bank accounts of him and his wife. By 27 October 2005 the total amount remaining to the credit of the unofficial Trust Account in respect of the Estate was only $529,022.86. There was already a deficiency in the "unofficial Trust Account" of $181,808.60. The Respondent failed to deposit the trust moneys to the "official trust account". He misappropriated $710,831.44 trust moneys of the Estate.
In November and December 2005 the Respondent made a distribution of funds to the Beneficiaries, including the Administratrix. The funds came from the "unofficial Trust Account" and the source of $333,326.51 of the funds was misappropriated from funds in the "unofficial trust account" from the sale of a property by a client, Judith Fitzsimons.
The Respondent did not keep any accounting records in relation to the "unofficial Trust Account".
Ground 79: The Respondent wilfully breached section 254 of the 2004 Act by repeatedly failing to deposit trust monies he received on behalf of Haylen Estate into the official trust account.
Ground 80: The Respondent breached section 264 of the 2004 Act from 5 October 2005 by failing to keep trust records in relation to the trust money of the Haylen Estate in the "unofficial trust account".
Ground 81: The Respondent acted for Mr & Mrs Poole in respect of the purchase of a property at Brighton-le-Sands, which settled on 13 September 2005.
On 9 September 2005, Mr Poole provided the Respondent with cheques for settlement and also a bank cheque for $30,594.00 payable to the NSW Office of State Revenue for stamp duty. The Respondent did not pay the bank cheque to the NSW Office of State Revenue. He misappropriated those funds by depositing the cheque into the "family account". This was one of the misappropriations for which the Respondent was charged and to which the Respondent pleaded guilty in the District Court, was convicted and sentenced.
The funds were then used and by 18 October 2005 the balance of the account was $82.50.
A Title Search disclosed that the transfer had not been registered and the property was still registered in the name of the Vendors until 14 March 2006. On that date the stamp duty was paid and the Transfer registered.
Ground 82: The Respondent breached section 257 of the 2004 Act by failing to pay the trust money to the Office of State Revenue as required by the client as soon as practicable after the receipt of the money.
Ground 83: The practice acted for Ms Judith Fitzsimons in respect of the sale of a property at Winston Hills and purchase of a retirement home. The files for the sale and purchase have not been located.
On 28 October 2005 on settlement of both transactions, the Respondent received a cheque for $250,000.00 payable to Southern Cross Care, which were purchase moneys in respect of the client's placement in the retirement home. There was also a cheque for $83,326.51 payable to the Commonwealth Bank. The $83,326.51 was the remaining funds to which the client was entitled after deduction of costs and disbursements payable by her to the law practice. The total of those two cheques was $333,326.51. The Respondent did not deposit those cheques in the Trust Account. Instead he deposited them to the "unofficial Trust Account".
The funds were used for Netbank transfer by the Respondent and in payment of $581,929.05 to Mr Freeman to replace funds misappropriated.
The Respondent misappropriated $333,326.51 of trust funds of Judith Fitzsimons.
Ground 84: The Respondent breached section 254 of the Legal Profession Act 2004 by failing to deposit the cheque for $250,000.00 into his "official trust account" as soon as practicable after receiving it.
Ground 85: The Respondent breached section 260 of the 2004 Act by mixing the trust money of $333,326.51 with other money without authorisation by the Law Society.
Ground 86: The Respondent acted for Mr & Mrs Keeler in respect of the sale of their home and the purchase of another property. The two transactions were settled on 4 November 2005. The files relating to both transactions have not been located.
The Respondent's wife wrote to the real estate agents concerning the deposit and stated: "I would be obliged if you could have a cheque drawn for the balance of the deposit moneys plus any interest payable to 'C R Fitzsimons' on 4 November 2005. I will arrange to collect this cheque from you after settlement and I will hand you the Order on the Agent." On 7 November 2005 the law practice collected a cheque for $81,429.47 from the real estate agent drawn payable to the law practice representing the deposit less the sales commission. The Respondent did not deposit the cheque to the "official trust account". The cheque was deposited on 7 November 2005 to the "unofficial Trust Account". By 14 November 2005 the balance of that account was reduced to $829.97.
The Respondent misappropriated the trust funds of $81,429.47 received on behalf of Mr & Mrs Keeler.
Ground 87: The Respondent breached section 260 of the 2004 Act by mixing the trust money of $81,429.47 with other money without authorisation by the Law Society.
Ground 88: The applicant alleges the Respondent breached the Orders of the Supreme Court of 21 December 2005. The Respondent acted for the Executor, the son of the Late Mrs Huntington who died on 1 May 2004. Probate was granted on 30 November 2005 to the son. The file relating to the Estate has not been located.
The Uniting Church (NSW) Trust Association on 16 December 2005 issued a cheque for $173,585.78 payable to the Estate and sent it to the Respondent.
The Executor instructed the Respondent to pay those trust funds to the Perpetual Trustee Company, to discharge the mortgage on a property at Lane Cove, which he was to inherit under his mother's Will. The Respondent did not deposit the cheque into the Trust Account and did not pay the funds to the Perpetual Trustee Company.
The Respondent had received the cheque on or before 21 December 2005. On that day he deposited the cheque into the "unofficial trust account". On 21 December 2005, the same day, the Receiver closed the "unofficial Trust Account", but this did not take effect on the bank's computer system until the end of the day.
On 21 December 2005, the same day, the Supreme Court appointed a Receiver of the Respondent's practice and the Respondent's Practising Certificate was suspended. The Supreme Court ordered, among other orders:
"That until further Order, the principal of the law practice, Christopher Ronald Fitzsimons (hereinafter called "the principal") be restrained by himself and his servants or agents from removing or causing or permitting to be removed from the State of New South Wales, or selling or charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of his assets in the State of New South Wales without first obtaining leave of the Plaintiff or the Court to do so."
The Applicant alleges that the Respondent breached the Orders of the Supreme Court on 21 December 2005 by withdrawing the amount of $172,585.78 and also the amount of $36,465.80. However, there is no evidence that the Respondent at the time of those actions was aware of the Order of the Supreme Court. Accordingly, this Ground is not established.
Ground 89: The Respondent breached section 254 of the 2004 Act by failing to deposit each of the cheques received on behalf of the Huntington Estate into his "official trust account" as soon as practicable after its receipt.
Ground 90: The Respondent breached section 264 of the 2004 Act by failing to keep trust records in relation to the trust moneys received and deposited into his "second Trust Account".
Ground 91: The Respondent misappropriated the $172,585.78. This was one of the misappropriations the subject of a charge under Section 178A of the Crimes Act to which the Respondent pleaded guilty and was convicted and sentenced by the District Court.
Ground 92: The Respondent intermingled the Huntington Estate trust money with monies belonging to him, his wife and his daughter.
Ground 93: The Respondent opened another bank account styled: "C R Fitzsimons Trust Account", at the Commonwealth Bank, Kings Cross Branch on 27 February 2006. The Law Society has referred to it as the "second trust account". The account was opened with a deposit of $36,465.80 comprising a bank cheque payable to the Huntington Estate by the Commonwealth Bank ($33,164.42), a cheque for $3,258.92 payable to the Estate drawn by Uniting Care, and a cheque payable to the law practice drawn by Energy Australia for $42.46. The funds of $46,423.34 belonging to the Estate were subsequently withdrawn from the "second trust account" by Netbank transfers to the "family account" and the "joint account". The property remained in the name of the deceased, Mrs Huntington, and the mortgage in favour of Perpetual Trustee Company Limited remained on the title.

In that Affidavit he repeated that he was responsible for taking the cheque for $603,097.47 to the Commonwealth Bank at Potts Point on 2 December 2005. That statement was false and the Respondent knew it was false.
The Respondent's conduct of giving false evidence in that Affidavit would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.

Misleading or attempting to mislead the Administrative Decisions Tribunal in evidence given under oath in the M A Fitzsimons proceedings on 24 April 2012;

The Respondent admits that he gave evidence in the M A Fitzsimons proceedings to the following effect:
246.1 He flew from Cairns to Sydney on the afternoon of Friday, 2 December 2005;
246.2 After the flight from Cairns landed at Sydney airport on the afternoon of Friday, 2 December 2005, he hired a taxi to the Post Office and collected the cheque for $603,097.47 from his post box at Potts Point Post Office. He then attended the Potts Point Branch of the Commonwealth Bank of Australia where he deposited the cheque into the joint account held by him and his wife; and
246.3 On Monday, 5 December 2005 he flew from Sydney to Cairns.
All of that evidence was untrue.
Again there is no record or document produced as evidence of him having flown from Cairns to Sydney on or before 5 December or having flown from Sydney to Cairns on Monday, 5 December 2005 or having booked either such flight. There is no record of him having paid by credit card or otherwise for any fare for such a flight. There is no evidence of him having paid for the flight with frequent flyer points or accumulated frequent flyer points for either such flight.
By this false evidence to the Tribunal, the Respondent attempted to mislead the Administrative Decisions Tribunal.
The Tribunal finds that this conduct could reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.

Swearing an affidavit on 13 June 2012 in the matter of Council of the Law Society of New South Wales v Christopher Ronald Fitzsimons Administrative Decisions Tribunal Legal Services Division matter number 090217 ["C R Fitzsimons proceedings"] which the Lawyer knew or ought to have known was false;

The Respondent swore an Affidavit on 13 June 2012 in the proceedings against him by the Law Society No. 090217. In that Affidavit:
251.1 The Respondent annexed at tabs 1 and 3 the Judgment of Syme DCJ;
251.2 He did not in the Affidavit correct those matters that he knew to be false in the Judgment of Syme DCJ as already particularised in relation to Ground A;
251.3 The Respondent knew when he swore the Affidavit of 13 June 2012 that he had an outstanding liability to the Law Society of $1,335,796.94, as advised per letters of 27 March 2012, 2 April 2012, and 5 April 2012 to him from the Law Society, and also an e-mail of 5 April 2012 from the Law Society;
251.4 The Respondent also annexed at tab 5 to the Affidavit of 13 June 2012, his previous Affidavit of 27 January 2011 in the Prothonotary's proceedings confirming at paragraph 3: "the accuracy of the transcript of the Judgment of Her Honour Judge Syme". He failed to correct those matters which he knew to be false in the Judgment of Syme DCJ as particularised earlier;
251.5 The Respondent annexed to the Affidavit at tab 8 his Affidavit of 11 July 2011 filed in the Prothonotary's proceedings, which included a copy of the report of Dr Bruce Westmore. But in the Affidavit of 13 June 2012 the Respondent failed to correct those matters which he knew to be false in the report of Dr Bruce Westmore, as particularised earlier in these reasons.
As detailed above, the Affidavit of 13 June 2012 was false. The conduct of the Respondent described would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.

Swearing an affidavit made on 17 February 2006 in the matter of The Law Society of New South Wales v Christopher Ronald Fitzsimons Supreme Court Proceedings matter number 16024 of 2005 ["the Receivership Proceedings"] which the Lawyer knew or ought to have known was false.

The Respondent swore an Affidavit of 17 February 2006 in the Receivership Proceedings. In that Affidavit the Respondent swore at paragraph 12(h) that the following debt was due by him:
"(h)K.M. and D.E. Grubsia [sic] $277,133.01
(Joint borrower with Maria Fitzsimons)"
On 21 December 2005 a cheque drawn by the Uniting Church in favour of the "Estate of the Late Doris C Huntington" in the sum of $173,585.78 was deposited into the "unofficial Trust Account" operated by the Respondent and styled "Christopher Ronald Fitzsimons Trust Account". This is the same account whose existence was denied by the Respondent under oath in paragraph 7 of his Affidavit of 28 January 2012.
On 21 December 2005 the Respondent drew a cheque payable to K.M. and D.E. Grubisa in the sum of $173,585.78. The cheque was used by the Respondent to purchase a bank cheque for $173,585.78 in favour of K.M. and D.E. Grubisa which bank cheque was then deposited into the account of the payees.
The Respondent's sworn statement in paragraph 12(h) of his Affidavit of 17 February 2006 was false because the Respondent had paid an amount of $173,585.78 to Mr & Mrs Grubisa by misappropriating that amount from the Huntington Estate.
Accordingly, the Respondent's statement in the Affidavit that he still owed K.M. and D.E. Grubisa $277,133.01 was false and the Respondent knew it was false when he swore to its truth in his Affidavit.
The Respondent's conduct in giving false evidence in the Affidavit could reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.

THE Respondent'S DEFENCE TO APPLICATION 092017

In relation to the grounds of misappropriation and other complaints in relation to the Respondent's handling of trust moneys, and also his creation of false documents and borrowing from clients, there were several limbs of the Respondent's defence.
His counsel unsuccessfully argued that the finding by Justice Adams in the proceedings by the Prothonotary on 23 March 2012 declining to make a declaration that the Respondent is not a fit and proper person to remain on the Local Roll of Lawyers created an estoppel preventing a contrary finding by the Tribunal in the disciplinary proceedings by the Law Society against the Respondent.
He was also unsuccessful in his argued defence that because the Law Society, although invited, elected not to be involved in the previous proceedings taken by the Prothonotary seeking to have the Respondent removed from the Roll, any subsequent disciplinary proceedings taken by the Law Society against the Respondent were an abuse of process and the Tribunal should order a permanent stay of them.
The other defence raised by the Respondent in relation to those complaints was framed as follows:
"(4)Of the remaining matters listed in paragraph 1 the Respondent does not deny the facts and particulars set out in the Application and cannot comment upon or dispute them in any meaningful way as he has little or no recollection of the files and clients concerned.
PARTICULARS
In 2006 the Respondent was diagnosed as suffering Bipolar Effective Disorder, a mental illness that he has had since is[sic] late teenage years or early 20's. The Respondent is now aged 66 and is thought to have had the mental illness for about 45 years. This mental illness is incurable but controllable with medication and treatment. The Respondent has been taking prescribed medication since his diagnosis in 2006 and continues to receive medical treatment."
It is common ground that the Respondent was an inpatient at Northside Clinic from 3-18 January 2006 and during that time was diagnosed with Bipolar Effective Disorder, alcoholism, and gambling addiction.
In proceedings 092017 the Respondent did not rely on any affidavit evidence by any medical practitioner or other health professional. The only Affidavit filed on his behalf is his Affidavit of 13 June 2012. He refers in that Affidavit to annexures, being medical reports by Dr Paul Trott, Dr J Carne, and Dr S Phillips.
Dr Trott's report is dated 26 October 2009. He is a Consultant Psychiatrist practising in Queensland. He refers to the Respondent as having had:
"Partial treatment responses with various psychotropic medications including the mood stabilizer Lithium Carbonate and the SSR1 antidepressant Fluoextine. However, he would still suffer cyclical major depressive mood swings of a moderate to severe severity as well as in between hypo-manic states. The clinical picture has also been complicated by a gambling addiction.
"More recently, Mr Fitzsimons has made some treatment gains through the addition of another mood stabilizer, Quetiapine, a typical antipsychotic complimenting the action of the Lithium carbonate. Despite various dose adjustments to these mood stabilzers Mr Fitzsimmons still experiences a cyclical mood change though of a lesser severity (both in duration and caseness). ...
"Given Mr Fitzsimmons longitudinal history of recurrent moderate to severe major depressive episodes and hypermanias as part of a Bipolar Disorder; and especially the impact of these on his occupational capability, as well as his Bipolar illness being susceptible to various stressors in the occupational, inter-personal, and social arenas; it is clinical recommendation that Mr Fitzsimons medically retire from legal practice as a solicitor. That is, Mr Fitzsimons' Bipolar Disorder which is chronic and permanent, as well as there being partial treatment responses, is such that it renders him permanently unfit to practice."
The report of Dr Trott did not disclose that the doctor had any knowledge or information about the extensive history of dishonest and fraudulent conduct from 2001 to 2006 inclusive.
There is no explanation as to why such dishonest and fraudulent conduct might occur in that period and not in the previous 32 years when the Respondent was suffering from untreated Bipolar Effective Disorder, practising as a solicitor, but apparently not indulging in such extensive dishonest and fraudulent conduct.
The report of Dr Carne is extensive. It is dated 9 May 2011. Dr Carne is a Consultant Psychiatrist and Con-joint Senior Lecturer in the Faculty of Medicine at the University of New South Wales.
The Respondent disclosed to Dr Carne in much greater detail the extent of his gambling problem. He said he had a gambling habit of spending about $50.00 a weekend from time to time until the early 1990's and then started to use a computer program for gambling. He increased his spending on gambling to about $1,000.00 per week. In March 2004 the TAB offered him a $5,000.00 weekly credit facility. With this facility at time he was losing $15,000.00 per week. He told Dr Carne this: "was still funded from his business income". But obviously by 2004 he was already misappropriating substantial funds from clients.
In late 2004 the TAB organisation offered him a $10,000.00 a week credit line, but he said he rejected it. He said he later also refused a $20,000.00 a week line of credit. In 2005 the TAB gave him a computer to use at his holiday home in Cairns so that he could keep gambling while away.
The only dishonesty or fraudulent matters that the Respondent told Dr Carne about were those for which he was convicted and sentenced by the District Court.
He told Dr Carne that he was under psychiatric treatment till December 2006 when his condition:
"then deteriorated and he returned to psychiatric treatment with a further admission to hospital. There the diagnosis was confirmed and he was discharged again on treatment. In 2007 he was re-admitted, this time to Cairns Base Hospital for further treatment and subsequently he attended Dr Paul Trott from February 2009 ..."
He told Dr Carne the offence he committed in 2002 occurred when he was depressed about his unsuccessful new legal partnership. He said he committed no offences in 2003, but was continuing gambling. He said that in 2004, 2005 and 2006 the offences were committed to pay gambling debts.
Dr Carne said in his report that he had seen the Respondent for treatment sessions on seven occasions in the period 13 October 2010 to 4 May 2011. He said that the Respondent had complied with his treatment recommendations and all his requests for blood tests and had not displayed any psychiatrically significant abnormal mood state. The Respondent told him that he had not been gambling, but had been drinking 1 or 2 standard units of alcohol on some, but not all nights of the week.
Dr Carne's diagnosis was that the Respondent was suffering from Bipolar Effective Disorders with periods of depression and mood elevation probably long-standing, but the date of on-set was unclear. He said he was also suffering from alcohol abuse/dependence. He said:
"Mr Fitzsimons probably suffers from long standing Bipolar Effective Disorder and alcohol abuse/dependence. His behaviour at the time of the offences was probably effected to a significant degree by abnormalities of mood although, because of Mr Fitzsimons poor recall of his mood states during the various periods of offending, it was not possible to draw a direct causal relationship between mood and behaviour."
He said he did not believe that the Bipolar Effective Disorder could be described as reversible, but it would respond to treatment: "Which, when effective, leads to the abolition of symptoms ..." He said it was difficult to predict whether the Respondent would, with medication, pathology and psychiatric supervision, live a normal life.
He said for the Respondent to be stable, he required to refrain from gambling, alcohol misuse, comply continually with psychiatric treatment, have ongoing domestic stability and social support, then he would be employable in a legal practice.
In answer to a question about the likelihood of the Respondent re-offending, Dr Carne said that with the requirements he had detailed in relation to stability, there was a good prognosis and:
"in these circumstances, in light of Mr Fitzsimons' remorse, acceptance of responsibility for his offences, and his wish to rehabilitate himself socially and professionally, provided that he remains mentally well, I believe that there is little likelihood of offending."
It is noted that in terms of social stability and social support, the Respondent and his wife separated in 2006. Dr Carne apparently was not aware of that and he also was not aware of the Respondent's continuing dishonesty in the Court and Tribunal proceedings since the diagnosis of Bipolar Effective Disorder and commencement of Treatment. He also relied upon what he saw as the Respondent's "desire to rehabilitate himself socially and professionally" but the Respondent's conduct since 2006 does not demonstrate any serious commitment to ethical standards.
Dr Phillips report is dated 10 December 2009. Dr Phillips is a General Practitioner practising at Clifton Beach in Queensland. His report is addressed to the Presiding Judge in the District Court for the sentencing of the Respondent in relation to the criminal charges. It does not relate to the Respondent except that it recites how the Respondent was arrested by the Police for criminal charges when the family were about to travel from Sydney airport to Singapore for a holiday. It relates also that the Respondent's wife suffered depression after that incident and that her progress in terms of her mental health had been slow. He said she still suffers from panic attacks, fear at airports and exacerbated fear when seeing uniformed Police Officers. He said that she: "continues to show high levels of stress, anxiety and depression with hyper-vigilance all of which have been compounded by her recent diagnosis with breast cancer".
She was diagnosed with breast cancer in June 2009 and underwent two major operations in the Sydney Hospital for breast cancer and reconstruction. She was discharged in November 2009, and returned to Queensland and has been under the care of Dr Phillips since then. She said that the Respondent had agreed to be her carer and had been caring for her 24 hours a day. His opinion was that she would require two further operations, the first on 20 January 2010 and the second at a later date. He anticipated that the Respondent would be needed to care for his wife for the next six months. There is no mention in Dr Phillips' report of the fact that the Respondent and his wife separated in 2006.
The medical reports relied upon by the Respondent have two important defects. The first is that the information provided by the Respondent to the doctors omits some material facts, such as the full extent of the fraudulent conduct of the Respondent in the period 2001 to 2006, his serious dishonest conduct in relation to subsequent proceedings in Courts and the Administrative Decisions Tribunal subsequently, the separation of the Respondent and his wife in 2006, her stress after his arrest, her serious health problems, and the demands upon him as her carer.
These problems, without further evidence, place in serious doubt the validity of the diagnosis of Bipolar Effective Disorder. They also refute Dr Carne's opinion that the Respondent would not reoffend and are inconsistent with his opinion that the Respondent might be a fit and proper person to be employed in a legal practice.
There is another problem about that medical evidence. That is that it does not discuss or explain what connection, if any, there is between the extensive dishonest and fraudulent conduct from 2001 to 2006 inclusive and the condition of Bipolar Effective Disorder. There is no explanation as to why the Respondent for the 32 years from 1969 to 2001 practiced as a solicitor but apparently his then untreated mental illness did not lead to dishonest or fraudulent conduct of the type proved in 2001 to 2006 inclusive.
And, of course, Dr Trott has indicated his opinion that he believes the Respondent is not suitable to continue to practice as a solicitor and should retire "medically unfit".

THE Respondent'S DEFENCE TO APPLICATION 122019

The Respondent was an inpatient at Northside Clinic from 3-18 January 2006 receiving psychiatric treatment. Since then according to the Respondent's Affidavit of 27 January 2011, he has ceased taking his medication twice, resulting on the first occasion in him being re-admitted to Northside Clinic from 29 August 2006 to 15 September 2006, and on the second occasion being admitted to Cairns Base Hospital Psychiatric Unit in early September 2007.
The Respondent was under the care of his psychiatrist, was medicated, abstained from alcohol and gambling, and was well on 17 February 2006 when he swore his Affidavit of that date, on 17 December 2009 when he made those submissions in the District Court before Syme DCJ, on 11 July 2011 when he swore his Affidavit of that date in the Supreme Court proceedings by the Prothonotary, on 28 January 2012 when he swore his Affidavit in the proceedings in the Administrative Decisions Tribunal involving his wife, on 24 April 2012 when he gave oral evidence in the Administrative Decisions Tribunal in the proceedings against his wife, on 27 May 2012 when he swore his Affidavit of that date in the same proceedings, and on 13 June 2012 when he swore his Affidavit of that date in these proceedings.
The professional misconduct alleged in Application 122019 all occurred at times when there is no evidence attributing it in any way to his Bipolar Effective Disorder, alcoholism or gambling.
The Tribunal is comfortably satisfied that the Respondent has intentionally engaged in professional misconduct when his Bipolar Effective Disorder and his alcoholism were controlled and he was not gambling.

CONCLUSIONS

The Tribunal is comfortably satisfied that the Respondent has between 2001 and 2012 (inclusive) repeatedly engaged in dishonest and fraudulent conduct. That is a period of about 11 years. The Tribunal does not accept that this dishonesty is attributable to a mental illness, alcoholism or a gambling addiction. His conduct the subject of application 122019 involves knowingly giving false evidence to courts and tribunals.

In the period 2001 to 2012 the Respondent has engaged in extensive incidents of professional misconduct. Those incidents have all involved dishonesty and those in 2001 to 2006 have mostly involved fraud.
The Tribunal finds that the Respondent is either unwilling or unable to fulfil his duty to a client, a court or tribunal and to fellow members of the profession to act with honesty and integrity.
The Respondent is not a person of sufficient honesty and integrity to engage in legal practice.
The evidence well establishes that the Respondent is not a fit and proper person to engage in legal practice and his name should be removed from the Roll.

COSTS

Subsection 566(1) of the Legal Profession Act 2004 provides:
(1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
There is no evidence of any exceptional circumstance supporting any other order than an order that the Respondent pay the Applicant's costs.

ORDERS

The Orders of the Tribunal therefore were:
1) The name of Christopher Ronald Fitzsimons is to be removed from the Roll of Local Lawyers.
2) The Respondent Christopher Ronald Fitzsimons must pay the costs of the Law Society of or incidental to the proceedings commenced by each of its Applications filed 16 July 2009 and 17 August 2012.
**********

Case Title:	Council of the Law Society of NSW v Fitzsimons
Medium Neutral Citation:	[2012] NSWADT 285
Decision Date:	11 September 2012
Jurisdiction:	Legal Services Division
Before:	Hon G Mullane, Judicial Member S Hale, Judicial Member E Hayes, Non-Judicial Member
Decision:	1.The name of Christopher Ronald Fitzsimons is to be removed from the Roll of Local Lawyers. 2.The Respondent Christopher Ronald Fitzsimons must pay the costs of the Law Society of or incidental to the proceedings commenced by each of its Applications filed 16 July 2009 and 17 August 2012.
Catchwords:	Solicitor - Disciplinary proceedings - Misappropriation - Breach of Statutory provisions regulating to Trust Accounts
Legislation Cited:	Legal Profession Act 1987 Sections 61 & 62; Legal Profession Act 2004 Sections 254, 257, 260 & 264; Legal Profession Regulation 2005; Crimes Act 1900 NSW Sections 178A & 300
Category:	Principal judgment
Parties:	Council of the Law Society of NSW (Applicant) Christopher Ronald Fitzsimons (Respondent)
Representation
- Counsel:	Counsel J S Gleeson, (Applicant) K J Pierce, (Respondent)
- Solicitors:	C Groenewegen,Council of the Law Society of NSW (Applicant) Lyons & Lyons (Respondent)
File Number(s):	092017 and 122019