Council of the Law Society of the Act v LP 012022 (Gillian Yeend) (Occupational Discipline) - [2025] ACAT 14

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LP 012022 (Gillian Yeend) (Occupational Discipline) [2025] ACAT 14

OR 1/2022
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioners – trust account obligations – trust transfers without authority – intermixing trust funds – failure to meet revenue obligations – whether conduct was unsatisfactory professional conduct or professional misconduct
Legislation cited: Evidence Act 2011 s 140
Justice and Community Safety Legislation Amendment Act2019
Legal Profession Act 2006 ss 11, 223, 228, 229, 230, 231, 260, 385, 386, 387, 389, 419, 425, 433, 580, 585, 602

Subordinate

Legislation cited: Legal Profession Regulation 2007
Legal Profession (Solicitors) Conduct Rules 2015

Cases cited:Berger v Council of the Law Society of New South Wales [2019] NSWCA 119
Brereton v Legal Services Commissioner [2010] VSC 378
Briginshaw v Briginshaw [1938] HCA 34
Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527
Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53
Council of the Law Society of the ACT v Giles [2020] ACTSCFC 1
Council of the Law Society of the ACT v Legal Practitioner 201809 [2019] ACAT 11
Council of the Law Society of the ACT v LP 202016 [2021] ACAT 58
Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60
Council of the Law Society of the Australian Capital Territory v The Legal Practitioner (Stephen Stubbs) [2010] ACAT 2
Council of the New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54
Kumar v Legal Services Commissioner [2015] NSWCA 161
Law Society of New South Wales v Vosnakis [2007] NSWADT 42
Legal Services Commissioner v Rushford [2012] VSC 632
Myers v Elman [1940] AC 282
New South Wales Bar Association v Cummins [2001] NSWCA 284
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Peters v R [1998] HCA 7
Re R, a Practitioner of the Supreme Court and Re A, a Practitioner of the Supreme Court [1927] SASR 58
SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132

Tribunal:Senior Member M Brennan
Senior Member L Beacroft

Date of Orders:  10 October 2024
Date of Reasons for Decision:      10 October 2024
Date of Publication:  11 March 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 1/2022

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant

AND:

LP 012022
Respondent

TRIBUNAL:Senior Member M Brennan
Senior Member L Beacroft

DATE:10 October 2024

ORDER

The Tribunal orders that:

Charges 1, 3, 4, 6 and 8 are fully made out.
Charge 2 is made out for 50 items in Schedule 1 (Charge is not made out for items 1 and 11, Schedule 1).
Charge 5 is made out for 51 items in Schedule 1 (Charge is not made out for item 11, Schedule 1) and is made out for six of the relevant items in Schedule 2 (made out for items 14, 25, 26, 27, 28, and 29) but is not made out for the remaining three relevant items in Schedule 2 (items 3, 7, and 23).
Charge 7 is made out in part for one of the relevant items, item 4, Schedule 2, but is not made out for all other relevant items in Schedule 2, being items 9, 12, 17, 19, 20, 21 and 24.
The respondent is guilty of professional misconduct.
The matter is to be listed for a one-day hearing as to sanction and costs.
………………………………..

Senior Member M Brennan
For and on behalf of the Tribunal

REASONS FOR DECISION

The Tribunal makes the above Orders and the reasons[1] for these Orders are set out below.

Introduction

[1] This decision was previously anonymised pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of delivery to the parties.

The applicant is the Council of the Law Society of the ACT (the applicant or Law Society). It was not disputed that at all material times the respondent held an unrestricted practising certificate and was the principal of an incorporated law practice (the Practice) and its sole director.[2] She operated an office account (the Office Account) and a trust account (the Trust Account or trust)[3] and was the sole person authorised to withdraw funds and sign cheques from the Trust Account.[4] The applicant applied to the ACT Civil and Administrative Tribunal (ACAT) under section 419 of the Legal Profession Act2006 (the Act) on 17 February 2022, seeking the following orders:
(a) A finding pursuant to section 425(1) of the Act that the Respondent is guilty of professional misconduct or, alternatively, unsatisfactory professional conduct.
(b) Such further or other order under section 425 of the Act as the ACAT thinks fit.
(c) An order pursuant to section 433(1) of the Act that the Respondent pay the Applicant’s costs of this proceeding as agreed or as assessed by the Registrar.[5]
[2] Exhibit A2: Affidavit of Robert Reis dated 31 August 2022 at [6]; Application dated 17 February 2022 at [1.1]
[3] Application dated 17 February 2022 at [1.1.3]–[1.1.4]
[4] Exhibit A2: Affidavit of Robert Reis dated 31 August 2022, page 2113 at [4]
[5] Application dated 17 February 2022 at [5]
The proceedings to date were confined to determining whether Charges, as listed below, were made out and, if so, how the respondent’s behaviour is to be characterised. This decision is confined to these issues.
The applicant pleaded eight Charges against the respondent as follows:
(a)Charge 1 – Withdrawal of funds from her trust account or trust to office transfer (TTOT) contrary to section 223(1)(b) of the Act. The Charge is based on a number of withdrawals from the Trust Account (items) in the form of TTOTs for a number of client matters (matters);[6]
(b)Charge 2 – Misappropriation of funds from trust, constituting dishonest conduct, contrary to the common law and the Act;[7]
(c)Charge 3 – Causing a deficiency in the trust account contrary to section 230 of the Act;[8]
(d)Charge 4 – Intermixing trust money contrary to section 228 of the Act;[9]
(e)Charge 5 – Failure to report trust account irregularities to the Law Society contrary to section 231 of the Act;[10]
(f)Charge 6(a) and 6(b) – Failure to accurately keep trust records contrary to regulations 44(1)(e), 46(4)(d), and/or 46(8) of the Legal Profession Regulation 2007 (the LPR);[11]
(g)Charge 7 – Failure to provide trust account statements contrary to regulation 57(6) of the LPR;[12]
(h)Charge 8 – Failure to meet revenue obligations in not remitting PAYG withholding tax and GST instalments to the Australian Tax Office (ATO).[13]
[6] Application dated 17 February 2022 at [3.336]; Applicant’s submission dated 23 November 2022 at [5.1]–[5.9]; Applicant’s submission dated 30 June 2023 at [10.2]
[7] Application dated 17 February 2022 at [3.337]–[3.338]]
[8] Application dated 17 February 2022 at [3.339]
[9] Application dated 17 February 2022 at [3.340]
[10] Application dated 17 February 2022 at [3.341]
[11] Application dated 17 February 2022 at [3.342]–[3.343]
[12] Application dated 17 February 2022 at [3.344]
[13] Application dated 17 February 2022 at [3.345]
The applicant pleaded that the Charges considered:
either individually or globally constitute professional misconduct [under] section 387 of the Act or professional misconduct at common law [because it] would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency and is otherwise capable of bringing the legal profession into disrepute.[14]
[14] Application dated 17 February 2022 at [4.346]
Further, the applicant submitted the respondent’s conduct is professional misconduct because it is both “substantial and consistent and would justify a finding that the practitioner is not a fit and proper person to engage in legal practice.”[15] In the alternative, the applicant submitted it was “unsatisfactory professional conduct” under section 386 of the Act.[16]
[15] Applicant’s submission dated 23 November 2022 at [14.5]
[16] Application dated 17 February 2022 at [4.347]
The respondent’s lawyer summarised their client’s submissions about the Charges and characterisation as follows: Charges 3 to 7 are of “lesser gravity”, and:
Except to the extent they rely on the correctness of the allegation in Charge 1, they are for the most part admitted [and on] their own the lesser charges are unlikely to have warranted bringing of the Application. … The real contest as to is whether [the respondent] has acted dishonestly; she denies that she ever so acted, and/or what the Practice’s failure to remit withholding amounts to the ATO indicates about [the respondent’s] fitness and propriety to engage in legal practice; in the context in which debts to the ATO arose and having regard to her response to that indebtedness [the respondent] contends that it indicates nothing about that matter.[17]

History of case and proceedings

[17] Respondent’s opening statement dated 25 November 2022 at [1.8]–[1.10]

In February 2019, Ms Cally Hannah, a then consultant to the Practice, contacted the applicant about the respondent’s ‘practices’ and, on 20 February 2019, the applicant appointed an investigator, Mr Joseph Ravanello.[18] On 16 September 2019, the applicant formally raised a complaint against the respondent and notified her in a letter dated 18 September 2019 which set out the nature of the complaint and other matters.[19] The applicant requested certain information including “all invoices rendered” for a number of matters in a letter dated 1 November 2019.[20] The respondent provided certain documents, including invoices, in a letter dated 20 November 2019.[21] On 20 October 2021, the applicant decided to commence disciplinary proceedings under section 419 of the Act and, on 2 December 2021, provided the respondent with a statement of reasons.
[18] Exhibit A2, Affidavit of Robert Reis dated 31 August 2022 at [10]–[11]
[19] RR1, pages 270-272
[20] Exhibit A2, Affidavit of Robert Reis dated 31 August 2022 at [14]–[21]; RR1, pages 279-281
[21] Exhibit A2, Affidavit of Robert Reis dated 31 August 2022 at [14]–[21]; RR1, pages 282-1136
The applicant commenced proceedings at ACAT in an application dated 17 February 2022 (the application).[22] During the proceedings, the applicant relied on affidavits by the following persons:[23] Mr Robert Reis, Professional Standards Manager, ACT Law Society, dated 31 August 2022 (Exhibit A2) which attached Exhibit RR1 (RR1) (relevant parts of the applicant’s investigation materials) and Exhibit RR2 (RR2) (extract of RR1, ordered chronologically); Ms Michelle Braddock, a past employee of the Practice occupying various roles from 2014 to 2018, dated 31 August 2022 (Exhibit A3); and Ms Cally Hannah, a past consultant to the Practice providing various services from 2014 to 2019, dated 1 September 2022 (Exhibit A1). The applicant filed numerous submissions in support of their application.
[22] Exhibit A2, Affidavit of Robert Reis 31 August 2022 at [19]–[21]
[23] Applicant’s submissions dated 30 June 2023 at [2.1]
The applicant had nine subpoenas issued on 28 October 2022, with a first return date of 8 November 2022, and one subpoena issued on 4 November 2022, with a first return date of 22 November 2022, to clients of the Practice to produce records.[24] The respondent was notified of the first return date.[25] A number of clients produced documents and the applicant tendered the subpoenaed documents in the “Folder of Subpoena Material” (Exhibit A4).[26] The applicant advised that they did not press Charges where the subpoenaed client produced evidence that the relevant invoice was provided to them prior to the TTOT.[27]
[24] Applicant’s submissions dated 23 November 2022 at [4.1]–[4.2]
[25] Exhibit A4; Transcript of proceedings dated 30 November 2022, page 176, lines 9-12
[26] Applicant’s submissions dated 23 November 2022 at [4.3]; Exhibit A4
[27] Applicant’s submissions in reply dated 8 September 2023 at [3.15]–[3.16]
In their submission dated 30 June 2023, the applicant stated it did not press Charges in relation to certain conduct set out in the initial application. Attached to the latter submission was an amended schedule: “Summary of TTOTs the subject of charges 1 and 2” (Schedule 1) for 10 matters and 52 items, and an amended schedule: “Schedule of charges 3, 4, 6 and 7” (Schedule 2) for 14 matters and 29 items. The full period of all the submitted Charges as set out in Schedule 1 and Schedule 2 is from 12 July 2015 (item 11, Schedule 1) to 22 January 2022 (item 26, Schedule 2), referred to as ‘the relevant period.’ The periods of each Charge varies within the relevant period. The TOTTs that are related to the submitted Charges 1 and 2 as set out in Schedule 1 occurred from 12 July 2015 (item 11, Schedule 1) to 20 November 2018 (item 13, Schedule 1) and the Regulation 62 that applied in this period is extracted in Table 2.
During the proceedings the respondent filed her affidavit dated 10 November 2022 (Exhibit RR3). This affidavit attached two annexures, marked A and B, and a further Exhibit. Annexure A is an index to the exhibit. Annexure B is a table setting out further details relating to the respondent’s searches for invoices and notices. The exhibit, marked GCY-2, contains further evidence relied on in the affidavit. At the hearing, the respondent submitted a revised version of annexure B to her affidavit, titled “Revised 29 November 2022: Summary of all invoices and TTOTs and other payments in each matter in Charges 1 and 2”, and the Tribunal relies on this amended version marked as separate exhibit (Exhibit R1). The respondent filed GCY-3 on 28 November 2022 which provided further material in support of her affidavit and revised annexure dated 10 November 2022 and 29 November 2022 respectively.
A hearing was held from 29 November to 2 December 2022. Mr Reis, Ms Braddock, and Ms Hannah gave evidence and were cross-examined. The respondent gave evidence and was cross-examined, and her re-examination was adjourned part heard.
Following a request from the respondent, which the applicant did not oppose, the Tribunal dispensed with continuing the re-examination of the respondent, vacated further hearing dates, and allowed the respondent to file a further affidavit. The respondent filed a further affidavit dated 5 June 2023. The parties also filed further and final submissions.
The respondent held an unrestricted practising certificate for most of the relevant period (until 27 February 2020) and was the principal of the incorporated law practice and its sole director for most of the relevant period (until 1 May 2020).[28] She operated an Office Account[29] and the Trust Account until it was closed on 31 December 2019.[30] The company appointed a voluntary administrator on 6 March 2020 and entered a deed of company agreement with the ATO which was varied a number of times.[31] She sold the Practice to Chamberlain’s Law Firm on 7 January 2020 and was then employed for a period by that firm.[32] During the proceedings, the respondent advised the Tribunal that she had surrendered her practising certificate and was no longer working as a solicitor.[33]

Relevant law

[28] Exhibit A2 at [6]; Application at [1.1.1]
[29] Application at [1.1.4]
[30] Exhibit A2 at [7]–[9]; RR1, page 2113; Application at [1.1.3]
[31] Affidavit of respondent dated 10 November 2022 at [172]–[180]
[32] Affidavit of respondent dated 10 November 2022 at [169]
[33] Respondent’s submission dated 23 August 2023 at [4.6]

There was not agreement between the parties about the interpretation and application of key provisions relevant to the case and these are extracted for reference in table 2: sections 223(1)(b) and 229 of the Act, and regulation 62 of the LPR as it was in the relevant period.[34] The parties’ submissions about these provisions are summarised later below under Charge 1 and the Tribunal’s findings are set out in its findings under Charge 1.
[34] Regulation 62 of the LPR was amended by the Justice and Community Safety Legislation Amendment Act 2019 (the Regulation 62 amendment). The Regulation 62 amendment did not have effect during the relevant period and neither party submitted it had any relevance to the case other than noting that it did not apply during the relevant period. The Regulation 62 amendment’s Explanatory Statement confirms that the key requirement in regulation 62(3)(b)(ii) which applied in the relevant period was not changed by the amendment, namely any written notice of a withdrawal was required to be provided “before effecting the withdrawal”
It was not disputed that the legislative framework relevant to these proceedings is as follows: Section 419 of the Act allows the applicant to apply for an order in relation to a complaint against the practitioner. The respondent has surrendered her practising certificate; however section 385(2) of the Act provides that the Charges remain relevant to a former Australian legal practitioner where the alleged conduct happened while they were an Australian legal practitioner.
Of relevance to some of the Charges, section 223(1) of the Act provides for the holding, disbursing, and accounting of trust money. Section 229 provides that the law practice may withdraw money for payment to the practice’s account for legal costs owing to the practice, subject to certain conditions. Regulation 62 of the LPR is a subordinate law made under section 602 of the Act and prescribes a procedure for withdrawing trust money.
Provisions in the Act about ‘unsatisfactory professional conduct’ and ‘professional misconduct’ and related common law are relevant to how conduct should be characterised. Section 389 makes clear such conduct can consist of a contravention of the Act. Section 386 defines ‘unsatisfactory professional conduct’ non-exhaustively to include:
conduct of an Australian legal practitioner happening 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.
Section 387 defines professional misconduct non-exhaustively to include:
unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence [and also] conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening 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. For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice … regard may be had to the suitability matters that would be considered 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.
As stated in section 387, suitability matters for admission to the legal profession are relevant to determining whether a person is fit and proper to engage in legal practice and therefore professional misconduct. These matters include whether the person is “currently of good fame and character”[35].
[35] S 11 of the Act
Also relevant to the Charges and characterization of conduct are the Legal Profession (Solicitors) Conduct Rules 2015 (the Rules). The Rules are a subordinate law made under section 580 of the Act and are binding on legal practitioners to whom they apply (section 585). Rule 5 relevantly states:
a solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to: be prejudicial to, or diminish the public confidence in, the administration of justice; or bring the profession into disrepute.
Failure to comply with the Rules can amount to unsatisfactory professional conduct or professional misconduct.

Section 425(3) of the Act empowers ACAT to make various orders if a practitioner is found guilty of professional misconduct or unsatisfactory conduct.
The parties referred to various authorities which the Tribunal has considered. Authorities of most relevance are outlined below.
Regarding ‘misappropriation’ as alleged in Charge 2, in Brereton v Legal Services Commissioner [2010] VSC 378 (Brereton), the court considered whether a legal practitioner had misappropriated trust money and set out the test for proof of dishonesty as follows:
[It is not necessary to prove that the person] subjectively knew or believed that the actions concerned were dishonest. What must be established is that the person subjectively intended to do the acts which are said to be objectively dishonest by the ordinary standards of reasonable and honest people. The steps involved … are: (1) identify the knowledge, belief or intent which is said to render the acts dishonest; (2) determine whether the … defendant … subjectively had the knowledge, belief or intent: and (3) determine whether, on that account, the acts were objectively dishonest according to the standards of ordinary and decent (that is reasonable and honest) people … ‘ … Mere negligence, even of a serious character, will not suffice.’[36]
[36] Brereton at [53]–[58] citing Peters v R [1998] HCA 7; quoting Myers v Elman [1940] AC 282, 288-289 (citations omitted)
In Council of the Law Society of the ACT v Legal Practitioner201809 [2019] ACAT 11 (Giles), the Tribunal found professional misconduct including dishonesty. The evidence showed that the legal practitioner:
was aware that he had neither verbal nor written authority from his clients to make the journal transfer at the time it was made; and that he knew that the legislation only permitted a journal transfer if there was an entitlement to do so:[37]
The Tribunal [was] comfortably satisfied that the [legal practitioner] at the time of making the journal transfer did not honestly hold the claimed belief that the costs agreements entitled the transfer to be made and consequently the transfer was done dishonestly.[38]
[37] Giles at [72] (citations omitted)
[38] Giles at [74]
In Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527 (Chamberlain), the court considered an appeal from the ACT Supreme Court and confirmed that the legal practitioner was guilty of professional misconduct. The legal practitioner had arranged for a consent order with a government tax agency to be filed with a court that related to his personal affairs when he knew it was based on a mistake – it included by error a vastly reduced sum to be paid by the legal practitioner. Black CJ set out the test for professional misconduct as follows, relying on various authorities and citing Re R, a Practitioner of the Supreme Court and Re A, a Practitioner of the Supreme Court [1927] SASR 58 at [61]:
conduct which may reasonably be held to violate, or to fall short of, a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.[39]
[39] Chamberlain at [13]
Whether the respondent is a fit and proper person to practice is an issue in the case. The authorities make it clear that the question is whether, at the time of the hearing, the legal practitioner is a fit and proper person to practice.[40] They also make it clear that findings about professional misconduct, especially if they involve adverse findings about honesty and integrity, can be the basis for a finding that the person is not fit and proper.
[40] Legal Services Commissioner v Rushford [2012] VSC 632 at [23]; Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 at [31]
In Council of the Law Society of the ACT v Giles [2020] ACTSCFC 1 (Giles appeal), the Giles case referred to earlier was subject to appeal about the sanction. In the Gilesappeal, the court upheld the Tribunal’s sanction to remove the legal practitioner from the roll, finding that he is “permanently unfit to practice”.[41] The court emphasised that honesty in relation to trust accounts and dealing strictly with trust monies is critical to the proper practice of law and “sacred”.[42] It took account of the fact that the conduct was not confined to the transactions that led to the complaint and that the practitioner had been dishonest in the way he dealt with the Law Society and with ACAT when he gave evidence that lacked credibility in important respects.[43]
[41] Giles appeal at [132]
[42] Giles appeal at [121]
[43] Giles appeal at [128]
In Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 (Jafari), the court found the legal practitioner was not a fit and proper person even though he had completed his sentence for an offence. The court took into account the nature of the offence and the surrounding circumstances which demonstrated a series of dishonest conduct over many years.[44]
[44] Jafari at [40]
In Legal Services Commissioner v Rushford [2012] VSC 632 (Rushford), the court found that, in determining whether a legal practitioner is a fit and proper person, any finding must be for broad “protective reasons and not as a punishment” and making such a determination concerns “present and future fitness to practice”.[45] The court found that while the “misconduct … was not of the gravest kind, it occurred over a number of years”, that this “pattern of misconduct clearly established”, and that the legal practitioner “was not a fit and proper person to practise and was likely to remain so indefinitely.”[46] The court summarised the evidence as being:
instances of misconduct [that] were not isolated and constituted a pattern of conduct [that] showed an egregious disregard for his responsibilities in relation to the trust account and his clients’ funds. [Albeit] the amounts involved were relatively small.[47]
[45] Rushford at [22], [23]
[46] Rushford at [34], [38]
[47] Rushford at [40]
Non-payment of tax debts has been the basis for a finding that a legal practitioner is not fit and proper to practise. In New South Wales Bar Association v Cummins [2001] NSWCA 284 (Cummins), the court found the barrister guilty of professional misconduct and not a fit and proper person to practise. The barrister had not lodged a tax return for 38 years in his professional practice or for any other personal income. The court found that he was capable of conducting his financial affairs but did not perform his duties as a “citizen and taxpayer” and exhibited an “inexcusable pattern of illegal conduct in complete defiance of his civic duties”.[48] The court determined that this behaviour brought the “entire legal profession into disrepute” and that he was not a fit and proper person to be on the roll.[49]
[48] Cummins at [16], [29]
[49] Cummins at [30], [70]
In Law Society of New South Wales v Vosnakis [2007] NSWADT 42 (Vosnakis), the court found the legal practitioner guilty of professional misconduct and not fit to practise for various reasons including his failure to meet tax obligations when due.[50] Mr Vosnakis had failed to pay any GST or PAYG instalments for many years and had failed to pay superannuation entitlements for staff for most years. Aggravating circumstances were that he “engaged in blatant and sustained breaches” of provisions for trust accounts and “he failed to assist the Law Society in the investigation.”[51]
[50] See Vosnakis at [35]
[51] Vosnakis at [10], [32]; see also Vosnakis at [16]
Where there is poor conduct, even misconduct, by a legal practitioner, the courts in some cases have found that they may still be fit and proper to practise. In Council of the Law Society of the ACT v LP 202016 [2021] ACAT 58 (LP 202016), the Tribunal found that a legal practitioner was guilty of unsatisfactory professional conduct when they withdrew $4,000 from the trust account without authority to do so and before an invoice was sent to the client, 32 minutes later.[52] Dishonesty was not alleged. The Tribunal found that the conduct involved more than “mere inadvertence … or an oversight” given the “high obligation” placed upon practitioners regarding trust account management, but also considered that the failure in conduct was not a “consistent failure” or “substantial”.[53] In Council of the New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 (Quinlivan), the Tribunal found a legal practitioner guilty of professional misconduct but fit and proper to practise. The Tribunal accepted there was merit to the claim that at the hearing the practitioner was a “very different person” and that there were “good prospects for rehabilitation” from his gambling addiction which was the “central factor” to the conduct.[54]
[52] See LP 202016 at [50; 53]
[53] LP 202016 at [74]
[54] Quinlivan at [102], [114]
The parties made submissions about the nature and standard of evidence relevant to the case.
Section 140 of the Evidence Act2011 states that a case will be successful in a civil proceeding if the court is satisfied that the case has been proved on the balance of probabilities and:
without limiting the matters that the court may take into account in deciding whether it is satisfied, it must take into account:
(a)     the nature of the cause of action or defence; and
(b)     the nature of the subject matter of the proceeding; and
(c)     the gravity of the matters alleged.
The above provision is in line with the well-established principle set out in Briginshaw v Briginshaw [1938] HCA 34 (Briginshaw principle) which applies in disciplinary cases such as this case. The principle does not require proof beyond reasonable doubt. As said in Giles, it requires:
more than a … balancing of the scales. … evidence must be weighed according to the gravity of the facts to be proved [and] to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that is just and correct.[55]
[55] Giles at [65] quoting Council of the Law Society of the Australian Capital Territory v The Legal Practitioner (Stephen Stubbs) [2010] ACAT 2 at [12]
Relevant to the case is authority about when inferences can be drawn to support findings. In Kumar v Legal Services Commissioner [2015] NSWCA 161 (Kumar), the court found dishonesty because there was “no other non-fanciful inference available” which could be reconciled with the facts and given the legal practitioner’s explanation was advanced for the first time during the hearing.[56] Similarly, in Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 (Berger), the court found that the legal practitioner had not provided any credible explanation for his conduct that was consistent with his extensive experience and the whole of the evidence, and concluded there was “no plausible explanation inconsistent with dishonesty” (citing Kumar).[57]
[56] Kumar at [59], see Kumar at [50]–[60]
[57] Berger at [272]
In Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 (Palmer), the court considered inferences that can be drawn in a civil case where ‘circumstantial evidence’ is relied upon.[58] Circumstantial evidence is evidence not drawn from direct observation of a fact in issue. Having reviewed the authorities, the court in Palmer stated “it is sufficient in civil cases that the circumstance raise a more probable inference in favour of what is alleged.”[59] Principles that apply include considering “the weight which is to be given to the united force of all the circumstances put together” and “the inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful”.[60]
[58] See Palmer at [33]–[47]
[59] Palmer at [39]
[60] Palmer at [41]
The question of what inference may be drawn from evidence of a general practise of a business was considered in SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132 (SAMM). The appeal court in SAMM found that the lower court was “entitled” to rely on evidence described as “decisive” given the circumstances of that case including that the lower court had considered all the available evidence and the decisive evidence was consistent with other reliable evidence and not “inherently incredible”.[61] The decisive evidence the lower court relied on was an email that reflected a usual practice and the appeal court in SAMM stated:
[61] SAMM at [144]–[146]
To prove that [the] act has been done, it is admissible to prove any general course of business or office … according to which it would ordinarily have been done, there being a probability that the general course would be followed in the particular case.[62]

Charges and summary of parties’ submissions

Charge 1
[62] SAMM at [150]

Charge 1 relates to withdrawal of funds from clients’ trust accounts, in the form of TTOTs, without providing the relevant clients written notices of these before effecting them in 52 instances contrary to section 223(1)(b) of the Act.[63] The Charge relates to 52 items for 10 matters as set out in Schedule 1.
Applicant’s submissions
[63] Application at [3.336]; Applicant’s submission dated 23 November 2022 at [5.1]–[5.9]; Applicant’s submission dated 30 June 2023 at [10.2], Schedule 1
The applicant’s submissions about Charge 1 are set out below in some detail below. These submissions relate to the 52 items in Schedule 1 and underpin many of the other Charges. The applicant relied on evidence of its witnesses, which is referred to as necessary in the Tribunal’s findings.
The applicant submitted that Charge 1 is made out for each item in Schedule 1.[64] The respondent acknowledged that the only notice of withdrawal of trust money provided to her clients was the notice contained in the invoice.[65] Therefore, a central issue for Charge 1 was whether the relevant invoice was sent to the relevant client before the respondent authorised the relevant TTOT. On this issue, the applicant submitted that:
on the basis of the available evidence and the inferences available to the Tribunal, the Tribunal can safely conclude that written notice of the withdrawal of trust money [in the form of an invoice] was not provided to the client before (if at all) effecting the withdrawals which are the subject of Charge 1.[66]
This was contrary to regulation 62 of the LPR and section 229(1)(b) of the Act and the respondent breached her obligation under section 223(1) to hold trust money “exclusively for the benefit of the client and to disburse it only in accordance with a direction given by the client”.[67]
[64] Applicant’s submission dated 30 June 2023 at [9.4]–[9.5], [12.1]–[12.288], Schedule 1
[65] Transcript of proceedings dated 30 November 2022, page 151, lines 4-12
[66] Applicant’s submission dated 30 June 2023 at [9.1(c)]
[67] Applicant’s submission in reply dated 8 September 2023 at [2.14] (original emphasis)
The applicant submitted that the respondent had not shown that she provided notice to the clients of the TTOTs given there is not reliable evidence that the invoices, when and if created, were provided to the relevant client by her or her employee before the TTOT was authorised.[68] The clients’ subpoenaed material did not produce “any correspondence attaching or enclosing these invoices” for the items in Schedule 1.[69] The applicant submitted that the respondent wrongly conflated ‘to issue’ an invoice, i.e. to provide an invoice to the relevant client, with creating it in the system. Further, the applicant submitted the respondent wrongly relied on a claim about there being a usual compliant practise to send invoices that had been raised to a client, usually by email.[70] The applicant submitted that evidence of a general practise cannot be relied on to prove the provision of the invoices and the Tribunal should not infer from the respondent’s submission about the Practice’s systems that invoices were sent to the client before effecting the withdrawals.[71]
[68] Applicant’s submission dated 23 November 2022 at [5.12]
[69] Applicant’s submission dated 23 November 2022 at [5.13]–[5.14]
[70] Applicant’s submission dated 23 November 2022 at [5.15]–[5.16]
[71] Applicant’s submission in reply dated 8 September 2023 at [3.13]
In any case, the applicant submitted that there are a number of TTOTs that were not made contemporaneously with or after providing the invoice to the relevant client – the reliable evidence is that the relevant invoices were provided some days or even some months after the relevant TTOTs.[72] Further, five of the TTOTs were for only part-payment of an invoice therefore “withdrawals cannot be said to have been contemporaneously with or after giving or sending an invoice.”[73] Finally, one of the TTOTs had no invoice raised at all so an invoice could not have been provided.[74]
[72] Applicant’s submission dated 23 November 2022 at [5.19]; Schedule 1 items 2, 4, 10, 15, 20, 22, 30, 32, and 42
[73] Applicant’s submission dated 23 November 2022 at [5.20]; Schedule 1 items 8, 19, 32, 33, 42
[74] Applicant’s submission dated 23 November 2022 at [5.21]; Schedule 1 item 21
The respondent made submissions about the meaning of the words ‘Payment Received’ (PR) in the invoices. She re-iterated in her oral evidence, namely that PR means the funds are available in the Trust Account to be transferred later.[75] But the applicant submitted that PR in an invoice which shows an amount greater than zero “can only be understood as conveying that the amount identified had already been withdrawn from the Trust Account and applied to the payment of the invoice”.[76] The applicant submitted that the documentary evidence did not support the respondent’s evidence on this issue. There were instances where invoices were sent to the client for the first time with an amount greater than zero below the header PR, and which were accompanied by a letter to the client confirming there was no amount outstanding to the Practice.[77] The invoices and covering letters and emails had no qualifying statement to change the ordinary meaning of the words ‘payment received’ and to make clear that they meant what the respondent claimed.[78]
[75] Transcript of proceedings dated 30 November 2022, page 172
[76] Applicant’s submission dated 30 June 2023 at [11.7], [11.1]–[11.8]
[77] Applicant’s submission dated 30 June 2023 at [11.11]–[11.12], referencing by way of example Schedule 1, item 32
[78] Applicant’s submission dated 30 June 2023 at [11.9]
The evidence for some items is that the TTOT was authorised on a day or more before the invoice was provided to the client, which is inconsistent with the respondent’s submissions on the meaning of PR:
an amount was transferred from the Trust Account to the Office Account on a day prior to the day on which the invoice with an amount greater than zero below the ‘Payments Received’ heading was provided to the client … [and in the invoice provided to the client] the amount transferred is equal to the amount stated below the ‘Payments Received’ heading.[79]
[79] Applicant’s submission dated 30 June 2023 at [11.10], referencing by way of example Schedule 1, items 2, 4
The applicant submitted that the respondent’s evidence about the words PR “lacks credibility” and is so “implausible that it cannot be regarded as honest evidence”.[80] It submitted that this, along with other evidence from the respondent including providing incorrect invoices to the applicant in 2019, as set out below, provide a basis for finding that the respondent is not a credible witness.[81]
[80] Applicant’s submission dated 30 June 2023 at [11.17]
[81] Applicant’s submission dated 30 June 2023 at [21]
When the applicant raised the complaint with the respondent, the respondent provided certain invoices on 20 November 2019 where the amount shown below PR was $0. In October and November 2022, the applicant had subpoenas issued to certain clients and some clients produced invoices that:
were substantially identical to those provided by the respondent on 20 November 2019 except the amount below the ‘Payments Received’ heading was greater than zero.[82]
[82] Applicant’s submission dated 30 June 2023 at [11.15]

In November 2022, in attachment GCY-2 to her affidavit, the respondent provided different invoices to some provided in November 2019 in that the amount shown under PR was greater than zero. The respondent did not provide an explanation for this in her affidavit. The applicant submitted that the practitioner’s oral evidence about why she did this was not plausible,[83] and that she provided the different and incorrect invoices to the applicant in November 2019 for the purposes of concealment.[84] The applicant submitted that this conduct demonstrates that she did not co-operate in an honest manner with requests for information by the applicant.[85]
[The respondent provided] incorrect versions of the invoices to the [investigator] and later to the applicant to conceal the fact that the invoices actually provided to the clients identified the amount below the ‘Payments Received’ heading as greater than zero … [and] on their face, these invoices would have alerted the [investigator] and/or the applicant to the fact that when the invoice was sent to the client, payment had already been received by the respondent by way of a withdrawal of trust money.[86]
[83] Applicant’s submission dated 30 June 2023 at [11.17], referencing transcript of proceedings dated 2 December 2022, pages 370-371
[84] Applicant’s submission dated 30 June 2023 at [21.7]
[85] Applicant’s submission dated 8 September 2023 at [4.3]
[86] Applicant’s submission dated 30 June 2023 at [11.19], [11.22]
Regarding the interpretation of sections 223 and 229 of the Act, the applicant submitted that the issues raised by the respondent were “semantic or obfuscatory”[87] and not sustainable. Section 223(1)(b) uses the word ‘disburse’ and does not expressly use the words used by the applicant in its application, specifically ‘withdraw’. However, ‘disburse’ is not defined in the Act and its plain meaning encompasses the withdrawal of money, including a withdrawal to pay legal costs.[88] Similarly, section 223 does not expressly use the words ‘causing’ or ‘allowing’ which are words used by the applicant in its application. However, Charge 1 necessarily used these words to make clear that, even if the respondent did not make the withdrawals, she is ultimately responsible given she was the only person authorised to do so, and any other interpretation would lead to “absurd” outcomes.[89]
[87] Applicant’s submissions in reply dated 8 September 2023 at [2.2], quoting Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60
[88] Applicant’s submissions in reply dated 8 September 2023 at [2.3]–[2.4]
[89] Applicant’s submissions in reply dated 8 September 2023 at [2.5]–[2.6]
The applicant submitted that the effect of section 223(2) is that “a law practice is able to disburse trust money” where the client “has not given a direction but only where a court order or lawful authorisation (such as, relevantly, subsection 229(2) of the Act) permits such disbursement”.[90] Finally, section 229(2) provides for the withdrawal of trust money for the payment of legal costs “if any relevant provision of [the] Act is complied with”, and regulation 62 in effect at the material time provides for either of two methods and the relevant method here is as follows:
if there is a compliant cost agreement authorising the withdrawal, the practitioner must give or send a prior request for payment or give or send a prior written notice of withdrawal (Reg 62(3)).[91]
Respondent’s submissions
[90] Applicant’s submissions in reply dated 8 September 2023 at [2.7]
[91] Applicant’s submissions in reply dated 8 September 2023 at [2.9]–[2.15]
The respondent denied the allegations in Charge 1. She submitted that the withdrawals from the Trust Account at issue in the case were each made pursuant to terms of a costs agreement with the client and an invoice sent to the client,[92] that the notice of the withdrawal was contained in the invoice,[93] and that the withdrawal was made “contemporaneously with or after the giving or sending of the invoice”.[94]
[92] Respondent’s response 23 November 2022 at [1.1(2)]
[93] Respondent’s response 23 November 2022 at [1.1(2)(b)]
[94] Respondent’s response 23 November 2022 at [1.2]
When setting up her financial system, the practitioner said that she conferred with Mr Adrian Bray who is an accountant with special expertise about trust accounting, and she made a note of his advice that she submitted supports the compliance of her system with requirements: “can transfer funds immediately if pursuant to a costs agreement or need to wait 7 days”.[95] On this basis she submitted that the TTOTs in Schedule 1 were authorised in compliance with the Act.[96]
[95] Affidavit of respondent dated 10 November 2022 at [21]–[22]; RR3, GCY-2, page 4
[96] Respondent’s amended response dated 23 November 2022, R1
In her affidavit, the respondent set out the key provisions of the Cost Agreement she relied on, including clause 12.2:
Should we receive money into our trust account on your behalf:- … you authorise us to withdraw from that money any amounts owing for our professional charges and/or disbursements in this matter for which we have given or sent to you written notice of withdrawal or a request for payment.[97]
[97] Affidavit of respondent dated 10 November 2022 at [28], referencing Cost Agreement sample RR3, GCY-2, pages 5-12
The Practice’s invoices contained the following note:
Notice of Withdrawal of Trust Monies. If you have authorised us to withdraw monies from trust to pay our bill in a cost agreement you have with us or if you have given us other written authority, then upon giving you this our bill, we will withdraw money from the trust money to settle the legal costs and disbursements included in this bill.[98]
[98] RR2, sample invoice, page 35
The respondent set out in some detail what she submitted was her usual practise for authorising a TTOT: only she authorised TTOTs and when she did so this meant “I had determined it was appropriate to do a trust to office transfer”.[99] She prepared an invoice for unbilled work and once checked, she issued it to the client, mostly by email, and “contemporaneously with an invoice being sent [she] withdrew money from the Trust Account for the fees and disbursements invoice, usually at the end of the day.”[100] She was aware of invoices “rendered”[101] and adopted a practise of “sending invoices to the client, usually on the day it was raised” and “effecting a TTOT in accordance with that invoice, usually at the end of that day or soon thereafter”, and this was continued over the relevant period and “even when other staff became involved in invoicing and billing”.[102] She stated that at various times Ms Braddock, Ms Hannah, and Mr Jasim (another past employee of the Practice) were responsible for providing invoices to clients.[103]
[99] Transcript of proceedings dated 2 December 2022, page 322, lines 13-14
[100] Affidavit of respondent dated 10 November 2022 at [33]
[101] Affidavit of respondent dated 10 November 2022 at [52]
[102] Respondent’s submission dated 23 August 2023 at [5.11.11.2]–[5.11.11.4]
[103] Affidavit of respondent dated 10 November 2022 at [47], [51], [67]; Transcript of proceedings dated 30 November 2022, pages 115, 148
The respondent submitted that the way she did TTOTs for the items in Schedule 1 was not different from what she had been doing in other client matters during the relevant period and prior to 2015.[104] She submitted that she was never advised by any person that “the way in which the Practice was billing or transferring money from Trust to Office (a “TTOT”) was wrong and needs to change”.[105] She provided reports of trust account external examinations undertaken yearly from 2014 to 2018, and three random inspections of the Trust Account in 2014, 2016, and 2018, which did not raise concerns about her billing practises.[106] She submitted that she understood that:
the Practice’s Costs Agreement authorised it to withdraw amounts held in trust for client … Nothing in [her] experience … suggested … that the Practice was not authorised to take money from trust once invoices were raised.[107]
[104] Affidavit of respondent dated 10 November 2022 at [93]
[105] Affidavit of respondent dated 10 November 2022 at [99]
[106] Affidavit of respondent dated 10 November 2022 at [40], [44], [55], [59], [61], [63], [68], [89], [90], referring to RR1, page 2138; RR3, GCY-2, pages 14-27
[107] Affidavit of respondent dated 10 November 2022 [100]–[101]; Respondent’s response dated 23 November 2022 at [2]
She stated that her search for relevant records for matters, the subject of the Charges, located some but not all records.[108] However, she submitted that the “absence of evidence is reasonably and definitely explicable on the basis that the record of giving or sending as [sic] not kept, and has been lost or misplaced”.[109]
[108] Affidavit of respondent dated 10 November 2022 at [97]
[109] Respondent’s submission dated 23 August 2023 at [5.11.5]
The respondent’s evidence was that the words PR on invoices did not mean that payment had already been received: “What would have been intended is to show that they were the fund [sic] available to apply to the invoice”.[110] Her evidence about this practise was relevant to understanding her evidence in regard to many items in Schedule 1.
[110] Transcript of proceedings dated 30 November 2022, page 172, lines 1-2
The respondent raised issues about the interpretation and application of sections 223, 229, and regulation 62 as follows. The respondent submitted that the applicant has not pleaded allegations consistent with requirements under section 223(1)(b) “to disburse the trust money only in accordance with a direction” given by the client, and instead alleged “withdrawing, causing or allowing” the TTOTs without the “direction or authority” of the client and “otherwise without any authorisation by law”.[111] Further, the TTOTs were such that they were withdrawals for money owed to the practice and as such outside the scope of section 223, referencing section 229(2).[112] The respondent submitted that regulation 62(3) is not within the regulation making power of section 260 and, to the extent it is relied on to support Charges 1 and 2, these Charges are not made out.[113]
Charge 2
[111] Respondent’s opening statement dated 25 November 2022 at [2.1]–[2.2]; Respondent’s response dated 25 August 2023 at [5.7.1]–[5.7.5]
[112] Respondent’s opening statement dated 25 November 2022 at [2.4]–[2.5]; Respondent’s submission dated 23 August 2023 at [5.7.6]–[5.7.7]
[113] Respondent’s opening statement dated 25 November 2022 at [3.4]
Charge 2 relates to misappropriation of funds from trust, i.e. dishonest conduct, contrary to the common law and the Act.[114]
Applicant’s submissions
[114] Application at [3.337]–[3.338]
The applicant relied on the Brereton case among other authorities in its submissions about what is required to prove ‘dishonesty’.[115] The applicant submitted that the respondent was aware of her obligations regarding trust money during the relevant period, including that trust money could be withdrawn only if the client had been provided with a written notice of the withdrawal, in this case in the form of an invoice, before effecting the withdrawal. It pointed to the Practice’s Cost Agreement and note on the Practice’s invoices that indicated this[116] and submitted that the respondent’s evidence demonstrated that she had this knowledge.[117] The applicant submitted that, given the circumstances of the 52 items in Schedule 1, “the respondent could not have had any genuine belief that notices of withdrawal had been provided to the client prior to authorising the relevant withdrawal” and she was “subjectively dishonest, or in the alternative, objectively dishonest” when she authorised each of the transfers itemised under Charge 1 (Schedule 1).[118]
[115] Applicant’s submission dated 23 November 2022 at [6.1]
[116] Applicant’s submission dated 30 June 2023 at [6.3]–[6.4]
[117] Applicant’s submission dated 30 June 2023 at [6.5]–[6.6]
[118] Applicant’s submission dated 30 June 2023 at [13.9]–[13.10]; Applicant’s submission dated 23 November 2022 at [6.2]
The applicant submitted that Charge 2 is made out in an “even more compelling” manner in regard to eight items in Schedule 1 where the respondent “made transfers from the Trust Account to the Office Account and later reversed those transfers in the Trust Account ledger”.[119] The applicant submitted that, in regards to each of these eight reversals, the respondent has provided no “credible explanation for the reversal”, there is no documentary or other credible evidence of any of the clients having been made aware of the reversal and “the inescapable inference is that the respondent knew she was not entitled to the funds the subject of the transfers”.[120]
[119] Applicant’s submission dated 30 June 2023 at [13.11], referencing Schedule 1 items 1, 5, 6, 7, 21, 35, 46, 47
[120] Applicant’s submission dated 30 June 2023 at [13.11]
The applicant summarised its submissions about Charge 2 during the hearing as follows:
[The respondent] misappropriated client funds dishonestly. … In discharging the onus, the [applicant] will give evidence of [the respondent’s] practises in relation to the billing of clients. … The starting point of [the applicant’s] case is there are no emails, there are no letters, but there is a lot more … practises of money being received in trust, almost immediately being withdrawn, no evidence of the invoice being sent and then that transaction being reversed. … [I]f this was being done honestly, why are transactions being reversed with the client never being told about the reversal? … [Does that] not provide a definitive inference that it was being reversed because the transaction should never have occurred[?] … This is how dishonesty is proved.[121]
[121] Transcript of proceedings dated 30 November 2022, page 128, lines 15-47
The applicant submitted that the respondent used money of her clients without entitlement in a period when the Practice was experiencing financial difficulties to improve her cash flow and that this is a “credible motive” for her conduct.[122]
Respondent’s submissions
[122] Applicant’s submission dated 30 June 2023 at [10.1]–[10.7]
The respondent denied that she misappropriated trust funds.[123] She stated that she believed that:
the Costs Agreement and the Invoice for the particular withdrawal together authorised [each TTOT] being done and that each such withdrawal was effected in accordance with the relevant costs agreement.[124]
She submitted that “at the time she effected each … TTOT she believed that the relevant invoice had been … given or sent to the client”.[125] She “believed” that, given the usual compliant practise “was to send, invoices once raised to the client, usually by email”, this would have been done.[126] While she could not locate all the documents to prove the invoices were provided to the client, she submitted this is “atypical” given the missing documents are a small proportion of gross fees and client matters.[127] She submitted that:
whether or not [she] got the benefit of those transfers otherwise than strictly in accordance with the [the Act], [she] believed [she] was entitled to make the TTOTs for the amounts that [she] did, when [she] did. [She] did not make them dishonestly.[128]
[123] Respondent’s amended response dated 23 November 2022, R2
[124] Respondent’s amended response dated 23 November 2022, R2
[125] Respondent’s submission dated 23 August 2023 at [5.11.11.4]
[126] Affidavit of respondent dated 10 November 2022 at [97]
[127] Respondent’s submission dated 23 August 2023 at [5.11.5]–[5.11.10]
[128] Affidavit of respondent dated 10 November 2022 at [187]
She submitted that, given her evidence and submissions in regards to Charge 2, the applicant “must prove in each 53 [sic] … TTOTs the Respondent’s knowledge and beliefs were otherwise”.[129] She submitted that the applicant cannot infer that she had ‘knowledge or belief’ that she was not authorised to make the TTOTs on the basis that she is “unable to now produce evidence of an invoice having been given or sent … ”.[130]
Charge 3
[129] Respondent’s submission dated 23 August 2023 at [5.11.12]
[130] Respondent’s submission dated 23 August 2023 at [5.11.4]
Charge 3 relates to causing a “deficiency in the trust account” contrary to section 230 of the Act[131] in eight instances, being items 3, 7, 23, 25, 26, 27, 28, and 29, Schedule 2.[132] The respondent admitted seven of these.[133]
[131] Application at [3.339]
[132] Applicant’s submission dated 30 June 2023 at [14]; Schedule 1
[133] Respondent’s submission dated 23 August 2023 at [3.2.2]; Applicant’s submission dated 23 November 2022 at [7.1]
In regard to the contested instance (item 26, Schedule 2), the respondent submitted she did not cause a deficiency in the trust account – she credited $2500, that had been deposited by a client, to the wrong account on 22 January 2018 which she later rectified on 24 January 2018 by transferring the same sum into the correct client’s trust account.[134] The respondent submitted that in regards to any deficiencies, she relied on Ms Hannah to manage trust accounting and reconciliation and there is no evidence “that Ms Hannah nor any trust auditor identified anything adverse … in relation to these amounts”.[135] These were “inadvertent accounting errors which were rectified as soon as they were identified”, totalling $15,773.07 over 14 months.[136]
[134] Respondent’s submission dated 23 August 2023 at [3.2.3]; RR1, page 1226
[135] Respondent’s submission dated 23 August 2023 at [3.2.4.4]
[136] Respondent’s submission dated 23 August 2023 at [3.2.4.1]
In regard to item 26, the applicant submitted that due to fact that the “funds were not available to record a trust-to-trust journal entry, it follows that the respondent caused a deficiency in the trust account”.[137] Given the latter and her admissions and the evidence, the applicant submitted Charge 3 is made out.
Charge 4
[137] Applicant’s submission dated 23 November 2022 at [7.2]
Charge 4 relates to intermixing trust money in two instances, contrary to section 228 of the Act,[138] being items 14 and 29, Schedule 2.[139] The respondent admitted these.[140]
[138] Applicant’s submission dated 30 June 2023 at [15]; Schedule 1
[139] Applicant’s submission dated 30 June 2023 at [15]; Schedule 1
[140] Respondent’s submission dated 23 August 2023 at [3.3.2]–[3.3.7]
The respondent submitted that the breaches were “genuine error”.[141] One instance (item 29, Schedule 2) involved a TTOT for staff wages and was rectified some days after it was identified. The other instance (item 14, Schedule 2) involved two TTOTs made in late 2018 (a third TOTT related to this item was not pressed by the applicant and is not the subject of Charge 4).[142] The respondent submitted that these were made for an “anticipated disbursement bill” from counsel and the Practice ultimately paid a shortfall in payment for this bill, not the client.[143] However, counsel’s bill was only fully paid by March 2019.[144]
[141] Respondent’s submission dated 23 August 2023 at [3.3.2]
[142] Applicant’s submission dated 30 June 2023 at [15]; Schedule 2
[143] Respondent’s submission dated 23 August 2023 at [3.3.3]
[144] Item 14, Schedule 2
Given her admissions about the intermixing of trust funds and the evidence, the applicant submitted that Charge 4 is made out.[145]
Charge 5
[145] Applicant’s submission dated 23 November 2022 at [8.1]–[8.2]
Charge 5 relates to not notifying the Law Society of the trust account irregularities the subject of Charges 1 to 4 as required under section 231 of the Act.[146] This Charge includes all the 52 TTOTs set out in Schedule 1, which are the subject of Charges 1 and Charge 2, and the transactions that relate to Charges 3 and 4 in Schedule 2 (i.e. 9 of the 29 items, Schedule 2, being items 3, 7, 14, 23, 25, 26, 27, 28, and 29).[147] To the extent that Charge 5 relates to the items in Schedule 1, the applicant submitted that by not reporting these irregularities the applicant was able to conceal “the fact that unauthorised withdrawals of trust money were being made” and this aspect of her conduct under Charge 5 should be characterised as professional misconduct.[148]
[146] Application at [3.341]
[147] Applicant submissions dated 23 November 2022 at [9.1]; Covering Letter to Applicant’s submissions dated 30 June 2023; Schedule 2 and in relation to items 3 and 7, Schedule 2; see Application at [1.57]–[1.59], [1.84(b)], [1.87], [1.92]
[148] Applicant submissions dated 8 September 2023 at [4.6]

A TTOT was made on 1 November 2017 for $880. There was an invoice dated 31 October 2017 that showed PR as $0 and $880 outstanding.
The applicant submitted that the TTOT dated 1 November 2017 was authorised by the respondent before she provided the invoice to the client (Charge 1), that she did this dishonestly (Charge 2), and that she was aware that this was a trust account irregularity but did not report it to the applicant as required (Charge 5).
The respondent denied all the Charges. The respondent’s submissions and evidence are summarised earlier. She agreed under cross-examination that she did not have evidence that the invoice was provided to the client before she authorised the TTOT but denied that it had not been provided.[448]
[448] Transcript of proceedings dated 2 December 2022, page 344
Regarding Charge 1, given the general findings set out in the reasons earlier and the absence of reliable corroborating evidence that the invoice was provided before the TTOT was authorised, the Tribunal finds that the invoice was not provided to the client before the TTOT was authorised and the Charge is made out.
Regarding Charge 2, given the general findings set out in the reasons earlier including her lack of credibility, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 2 made out for this item.
Regarding Charge 5, given Charge 2 is made out, the general findings set out in the reasons, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 5 made out for this item.
Items 44 and 45
Two TTOTs were made, one on 8 November 2017 for $1620 and another on 15 November 2017 for $448. There was an invoice dated 8 November 2017 that showed PR as $0 and $2,068 outstanding.
The applicant submitted that the two TTOTs were authorised by the respondent before she provided the invoice to the client (Charge 1), that she did this dishonestly (Charge 2), and that she was aware that this was a trust account regularity but did not report it to the applicant as required (Charge 5).
The respondent denied all the Charges. The respondent’s submissions and evidence are summarised earlier. She agreed under cross-examination that she did not have evidence that the invoice was provided to the client before she authorised the TTOTs but denied that it had not been provided.[449]
[449] Transcript of proceedings dated 2 December 2022, page 345
Regarding Charge 1, given the general findings set out earlier and the absence of reliable corroborating evidence that the invoice was provided before the TTOT was authorised, the Tribunal finds that the invoice was not provided to the client before the TTOTs were authorised.
Regarding Charge 2, given the general findings set out earlier including her lack of credibility, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 2 made out for these items.
Regarding Charge 5, given Charge 2 is made out, the general findings set out earlier, and the absence of reliable evidence for these items that displaces these general findings, the Tribunal finds Charge 5 made out for these items.
Items 46, 47, and 48
Three TTOTs were made: one on 15 November 2017 for $302 and reversed on 2 February 2018; another on 25 January 2018 for $330 and reversed on 2 February 2018; and another on 22 February 2018 for $5,833.50. An invoice dated 15 November 2017 for $2,640 shows a PR of $302 and a further invoice dated 22 February 2018 for $5,833.50 shows a PR of $ 0.
The applicant submitted that the three TTOTs were authorised by the respondent before she provided an invoice to the client (Charge 1), that she did this dishonestly (Charge 2), and that she was aware that this was a trust account irregularity but did not report it to the applicant as required (Charge 5).
The respondent denied all the Charges but made some relevant admissions. The respondent’s submissions and evidence are summarised earlier. When cross‑examined, she agreed that she had advised the applicant on 18 March 2020 that she made the two reversals because the client had not received invoices[450] and that she knew by 2 February 2018 at the latest that these were irregularities and did not report them to the applicant.[451] She denied that the invoice dated 22 February 2018 was not provided to the client but agreed that she had no documentary evidence that it had been provided.[452]
[450] RR1, page 1229
[451] Transcript of proceedings dated 2 December 2022, page 347
[452] Transcript of proceedings dated 2 December 2022, page 346
Regarding Charge 1, the Tribunal finds it made out. There is no documentary evidence that the respondent provided any invoices to the client before she authorised the three TTOTs, indeed she admitted that she did not provide two of them to the client. Given the general findings set out earlier and the absence of reliable corroborating evidence that the invoice was provided before the TTOT was authorised, the Tribunal concludes that the invoice was not provided to the client before the TTOTs were authorised.
Regarding Charge 2, the Tribunal finds it is made out. The Tribunal takes into account that the TTOT was authorised after the 25 May 2016 – as set out in item 1 above, the respondent knew that she had already been non-compliant with requirements for authorising a TTOT and had not reported this to the applicant or taken action to fix related system issues. As set out earlier, items where reversals of TTOTs occurred are of importance in making findings about Charge 2. Even if the Tribunal were to accept the best view of the respondent’s evidence being that on 2 February 2018 she reversed two of the TTOTs when she discovered that invoices had not been sent, the Tribunal is of the view that if she was honest she would have taken action to fix any systemic issues or advise the client of this. But she took no such action because she knew and believed that the TTOT was authorised before the invoice was sent and she wished to conceal what had occurred. Given this and other evidence set out earlier the Tribunal is comfortably satisfied that the respondent knew and believed at the time she made the TTOTs that she was not entitled to authorise the TTOTs.
Regarding Charge 5, given her admissions, that Charge 2 is made out, the general findings set out earlier, and the absence of reliable evidence for these items that displaces these general findings, the Tribunal finds Charge 5 made out for these items.
Item 49
A TTOT was made on 16 August 2018 for $1,980. There was an invoice dated 16 August 2018 that showed PR as $0 and $1,980 outstanding.
The applicant submitted that the TTOT dated 16 August 2018 was authorised by the respondent before she provided the invoice to the client (Charge 1), that she did this dishonestly (Charge 2), and that she was aware that this was a trust account irregularity but did not report it to the applicant as required (Charge 5).
The respondent denied all the Charges. The respondent’s submissions and evidence are summarised earlier. She agreed under cross-examination that she did not have evidence that the invoice was provided to the client before she authorised the TTOT but denied that it had not been provided.[453]
[453] Transcript of proceedings dated 2 December 2022, pages 347-348
Regarding Charge 1, given the general findings set out in the reasons earlier and the absence of reliable corroborating evidence that the invoice was provided before the TTOT was authorised, the Tribunal finds that the invoice was not provided to the client before the TTOT was authorised and the Charge is made out.
Regarding Charge 2, given the general findings set out in the reasons earlier including her lack of credibility, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 2 made out for this item.
Regarding Charge 5, given Charge 2 is made out, the general findings set out in the reasons, and the absence of reliable evidence for these items that displaces these general findings, the Tribunal finds Charge 5 made out for this item.
Item 50
A TTOT was made on 23 August 2018 for $1,188. There was an invoice dated 23 August 2018 that showed PR as $0 and $1,188 due.
The applicant submitted that the TTOT dated 23 August 2018 was authorised by the respondent before she provided the invoice to the client (Charge 1), that she did this dishonestly (Charge 2), and that she was aware that this was a trust account irregularity but did not report it to the applicant as required (Charge 5).
The respondent denied all the Charges. The respondent’s submissions and evidence are summarised earlier. She agreed under cross-examination that she did not have evidence that the invoice was provided to the client before she authorised the TTOT but denied that it had not been provided.[454]
[454] Transcript of proceedings dated 2 December 2022, page 348
Regarding Charge 1, given the general findings set out in the reasons earlier and the absence of reliable corroborating evidence that the invoice was provided before the TTOT was authorised, the Tribunal finds that the invoice was not provided to the client before the TTOT was authorised and the Charge is made out.
Regarding Charge 2, given the general findings set out in the reasons earlier including her lack of credibility, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 2 made out for this item.
Regarding Charge 5, given Charge 2 is made out, the general findings set out in the reasons, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 5 made out for this item.
Item 51
A TTOT was made on 30 August 2018 for $1,914. There was an invoice dated 30 August 2018 that showed PR as $0 and $1,914 due.
The applicant submitted that the TTOT dated 30 August 2018 was authorised by the respondent before she provided the invoice to the client (Charge 1), that she did this dishonestly (Charge 2), and that she was aware that this was a trust account irregularity but did not report it to the applicant as required (Charge 5).
The respondent denied all the Charges. The respondent’s submissions and evidence are summarised earlier. She agreed under cross-examination that she did not have evidence that the invoice was provided to the client before she authorised the TTOT but denied that it had not been provided.[455]
[455] Transcript of proceedings dated 2 December 2022, page 348
Regarding Charge 1, given the general findings set out in the reasons earlier and the absence of reliable corroborating evidence that the invoice was provided before the TTOT was authorised, the Tribunal finds that the invoice was not provided to the client before the TTOT was authorised and the Charge is made out.
Regarding Charge 2, given the general findings set out in the reasons earlier including her lack of credibility, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 2 made out for this item.
Regarding Charge 5, given Charge 2 is made out, the general findings set out in the reasons, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 5 made out for this item.
Item 52
A TTOT was made on 3 September 2018 for $1,980. There was an invoice dated 3 September 2018 that showed PR as $0 and $3,960 outstanding.
The applicant submitted that the TTOT dated 3 September 2018 was authorised by the respondent before she provided the invoice to the client (Charge 1), that she did this dishonestly (Charge 2), and that she was aware that this was a trust account regularity but did not report it to the applicant as required (Charge 5).
The respondent denied all the Charges. The respondent’s submissions and evidence are summarised earlier. She agreed under cross-examination that she did not have evidence that the invoice was provided to the client before she authorised the TTOT but denied that it had not been provided.[456]
[456] Transcript of proceedings dated 2 December 2022, pages 348-349
Regarding Charge 1, given the general findings set out in the reasons earlier and the absence of reliable corroborating evidence that the invoice was provided before the TTOT was authorised, the Tribunal finds that the invoice was not provided to the client before the TTOT was authorised and the Charge is made out.
Regarding Charge 2, given the general findings set out in the reasons earlier including her lack of credibility, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 2 made out for this item.
Regarding Charge 5, given Charge 2 is made out, the general findings set out in the reasons, and the absence of reliable evidence for this item that displaces these general findings, the Tribunal finds Charge 5 made out for this item.
Table 2: Sections 223(1)(b) and 229 of the Act, and regulation 62 of the LPR as it was in the relevant period
Section 223(1)(b) of the Act
No changes were made to section 223(1)(b) of the Act during the relevant period. Through the relevant period, this section read:
223Holding, disbursing and accounting for trust money
(1)A law practice must—
…
(b)disburse the trust money only in accordance with a direction given by the person.
Section 229 of the Act
No changes were made to section 229 of the Act during the relevant period. Through the relevant period, this section read:
229    Dealing with trust money—legal costs and unclaimed money
(1)     A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person:
(a)       exercise a lien, including a general retaining lien, for the amount of legal costs reasonably owing by the person to the practice;
(b)       withdraw money for payment to the practice’s account for legal costs owing to the practice if any relevant provision of this Act is complied with;
(c)        after deducting any legal costs properly owing to the practice, deal with the balance as unclaimed money under section 259 (Unclaimed trust money).
Note     This Act is defined in the dictionary.
(2)     Subsection (1) applies despite any other provision of this part but has effect subject to part 3.2 (Costs disclosure and assessment).
Regulation 62 of the LPR
During the relevant period for the related charge, regulation 62(3)(b)(ii) of the LPR read:
62 Withdrawing trust money for legal costs—Act, s 229 (1) (b)
…
(3)The law practice may withdraw the trust money—
…
(b)if, before effecting the withdrawal, the practice gives or sends to the person—
…
(ii)a written notice of withdrawal.