Council of the Law Society of the Act v LP082023 (Occupational Discipline) - [2023] ACAT 63

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LP082023 (Occupational Discipline) [2023] ACAT 63

OR 8/2023
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – professional misconduct – failure to hold trust monies deposited in the trust account exclusively for the persons on whose behalf it was received – failure to honour undertaking given in the course of legal practice – request to determine the matter by consent – tribunal does not simply issue orders as agreed by parties – importance of solicitor managing their trust account – conduct in this case classified as professional misconduct – satisfied proposed penalties protect the public and discourage misconduct – respondent publicly reprimanded – respondent pay a fine – respondent to undertake and complete courses in ethics and trust accounting
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 55
Legal Profession Act 2006 ss 223, 386, 387, 419, 425, 433, 585

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 r 6.1

Cases cited:Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68
Medical Board of Australia v Martin [2013] QCAT 376
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Re A Practitioner (1941) SASR 48
Re A Practitioner (1982) 30 SASR 27
Legal Services Commissioner v Rushford [2012] VSC 632
Council for the Law Society of the ACT v LP 201809 (Charles Filgate Giles) [2019] ACAT 60
Council of the Law Society of the ACT v Legal Practitioner 201822 (Alveer Singh) [2019] ACAT 27
Council of the Law Society of New South Wales v Panopoulos [2010] NSWADT 208
Russo v Legal Services Commissioner [2016] NSWCA 306

Tribunal:Presidential Member H Robinson
Date of Orders:  24 October 2023
Date of Reasons for Decision:      24 October 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 8 of 23

BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant

AND:
LP082023

Respondent

TRIBUNAL:Presidential Member H Robinson
DATE:24 October 2023

ORDER

The parties have reached an agreement as to the terms of a decision of the Tribunal in response to the application for disciplinary action dated 2 June 2023. The terms of the agreement were reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal. The Tribunal is satisfied that a decision consistent with those terms is within the power of the Tribunal and is appropriate.

Accordingly, by consent, the Tribunal makes the following orders:

Pursuant to subsection 425(1) of the Legal Profession Act 2006 (the Act), the respondent is guilty of professional misconduct.
Pursuant to subsection 425(3)(e) of the Act, the respondent is publicly reprimanded.
Pursuant to subsection 425(5)(a) of the Act, the respondent pay a fine in the amount of $8,000 in equal monthly instalments over 12 months.
Pursuant to section 425(2)(b) of the Act, that the respondent undertake and complete courses approved by the Law Society in ethics and trust accounting prior to making any application for a practising certificate.
Pursuant to sections 433(10) and (5) of the Act, the respondent pay the applicant’s costs fixed in the sum of $3,000 in equal monthly instalments over 12 months.
………………………………

Presidential Member H Robinson

REASONS FOR DECISION

By application dated 2 June 2023, the applicant brought occupational discipline proceedings against the respondent under section 419 of the Legal Profession Act 2006 (the Act).
On 27 July 2023, the parties filed a joint submission with the tribunal identifying certain areas of agreement, but also areas of disagreement. On 21 August 2023, the parties filed a further joint submission. The parties have asked the Tribunal to determine the matter by consent pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
The joint submissions, read together, set out the parties’ agreed position on the relevant facts, the charges, the characterisation of the charges, and the agreed sanction.
Having read the material on file and the parties’ submissions, I have no cause to disagree with the suggested approach. The “agreed facts” adopt much of the material put forward, save that I have rearranged some passages for simplicity or clarity and anonymised the personal details of persons not party to the proceedings.

Agreed facts

The parties have agreed to the following facts.
The respondent:
(a)is admitted as a solicitor of the Supreme Court of the ACT;
(b)has held a restricted practising certificate issued by the Law Society of the ACT from 1 July 1990 to 21 June 1992; and
(c)has held an unrestricted practising certificate issued by the Law Society of the ACT from 1 July 1992 to the present.
The respondent is a principal of their law firm.
At all material times, their law firm operated a trust account at St George Bank (Trust Account).

Mr JR and Ms GS

JR was in a relationship with GS.
At the commencement of that relationship, JR owned a property in the ACT (the property). He continued to own the property for the duration of his relationship with GS.
At some time prior to March 2022:
(a)Mr JR and Ms GS separated;
(b)a family law property dispute arose between JR and GS;
(c)JR engaged with the law firm Rachel Bird & Co to act for him in relation to the family law property dispute;
(d)GS engaged with the law firm Robinson McGuinness to act for her in relation to the family law property dispute;
(e)Robinson McGuinness registered a caveat over the property on behalf of GS;
(f)JR engaged the respondent to act for him in the sale of the property;
(g)JR entered into a contract for the sale of the property.
The settlement of the property was scheduled to occur on 21 March 2022.
On 17 March 2022, GS lodged a caveat over the property. The caveat was registered on 21 March 2022.
On 9:24am on 21 March 2022, the respondent emailed the law firm Robinson McGuinness in the following terms:
Dear Kevin,
We are for [JR] in the matter of the sale of [the property] …
Completion of the sale is due this date, 21/3/22
We note that a caveat has been registered on the property by you on behalf of the caveator [GS] which now prevents settlement of the property until it is withdrawn.
We do not act for [JR] in any family law proceeding and are not aware of the quantum of your client’s claim.
Noting our instructions to the effect that settlement of the sale amount must proceed today to avoid the possibility of the mortgagee taking action against the property, may we suggest that the caveat if withdrawn immediately with the net proceeds to remain in our trust account pending resolution of your client’s claim.
At 2:37pm on 21 March 2022, Ms Amy Davis of Robinson McGuinness emailed the respondent in the following terms:
We refer to your email below and my telephone conversation … this afternoon. We confirm Anna-Kate Visser acts on behalf of [GS] in relation to family law matters.
As discussed, we are instructed to withdraw the caveat registered on [the property] on the basis that [their law firm] disburse the proceeds of sale as follows:
1.       In payment of the amount required to discharge the home loan secured by way of registered mortgage;
2.       In payment of legal costs and expenses of the sale;
3.       In the usual adjustment for rates;
4.       The sum remaining to be held in the trust account of [their law firm] pending Court Order or joint written instructions from [GS and JR].
We look forward to written confirmation of above.[1]
[1] Emphasis in original
At 2:52pm on 21 March 2022, the respondent sent an email to Robinson McGuinness (2:52pm mail) in the following terms:
Dear Colleagues
We confirm that the net proceeds of the sale shall be retained in our trust account to accord with the terms of agreement for withdrawal of the caveat outlined below.
Kindly provide confirmation of registration of the withdrawal of caveat in due course
We will book settlement accordingly.
Kind regards,
The respondent intended Robinson McGuinness to rely on the assurance provided in the 2:52pm email that he would not distribute the net proceeds of sale unless authorised to do so by a Court Order or joint written instructions from GS and JR and, in reliance on that assurance, to withdraw the caveat registered over the property.
On 30 March 2023, the caveat registered by GS was withdrawn.
On 1 April 2023, the settlement of the property occurred.
Following the settlement of the sale of the property, their law firm received the sum of $317,117.77 into the Trust Account, being from:
(a)$299,556.77 – net proceeds of the sale of the Property; and
(b)$17,561 – balance of the deposit.
At 7:03pm on 13 June 2022, JR emailed Ms Annalisa Ross, conveyancing clerk employed by their law firm, in the following terms:
Please see electricity bill attached that needs to be paid from the trust fund that is held by ‘[their law firm]’. This is the final bill for electricity bill after the sale of [the property]. It would be greatly appreciated if this could be done as soon as possible.
Another matter that needs to be rectified is that I currently had a CSA (Child Support Agency) bill of $13,002.93 that is currently being DISPUTED. Rachel Bird & Co has paid the sum of $3,000.00 as requested by NOTICE from the CSA (Child Support Agency) when in fact this should have been paid from my finances which are held by [their law firm] and NOT from the finances that are to be used for my family law dispute in which Rachel Bird 7 Co are currently undertaking on my behalf, these are two different issues.
After speaking to CSA (Child Support Agency) over the phone the representative had sent to the documentation to the incorrect solicitor.
It would be greatly appreciated if this could be corrected.
JR’s email attached the following documents:
(a)an electricity bill from ActewAGL issued on 23 March 2022 for supply to the Property addressed to JR in the amount of $2,123.05 (ActewAGL bill);
(b)a letter from the Child Support Agency (CSA) addressed to JR dated 19 May 2022, advising that Rachel Bird & Co was required to pay the amount of $13,002.93 and enclosing a Notice to collect overdue amounts.
At 8:44am on 14 June 2022, Mr Ross forwarded JR’s email to the respondent as stated, “Can we do this? Funds held in trust total $317,177.77. There are no consent orders or instructions that I am aware of at this time.”
At 8:58am on 14 June 2022, the respondent emailed Ms Ross in the following terms, “It’s his property so we can pay the bill.”
Between about 8:58am and 10:12am on 14 June 2022, the respondent paid, or caused to be paid, the amount of $2,123.05 to ActewAGL in payment of the ActewAGL Bill using the funds held in the Trust Account in respect of JR’s matter.
The respondent did not seek instructions from GS to pay the sum of $2,123.05 to ActewAGL from the funds held in the Trust Account. GS did not direct the respondent to pay the sum of $2,123.05 to ActewAGL from funds held in the Trust Account.
At 10:12am on 14 June 2022, Ms Ross emailed JR in the following terms, “ACTEW account has not been paid, could you please clarify what you need from me in regard to CSA?”
At 6:27pm on 15 June 2022, JR emailed Ms Ross in the following terms:
As for the $3,000.00 dollars which Rachel has paid from my Trust account which I borrowed off my mother are we able to replace that $3,000 back into her account? If need be,
As it was removed from payment to CSA?
…
I have two weeks to replace the $3,000.00 dollars back into Rachel’s trust for my family law dispute.
At 8:17am on 16 June 2022, Mr Ross emailed JR in the following terms, “As for the $3,000 I will need to check with Les. I will come back to you.”
At 2:24pm on 7 July 2022, JR emailed Ms Ross in the following terms:
Australian Government Services Australia support has sent a Withdrawal/revocation Notice finally sent to Rachel Bird it was dated 29 of June.
I am hoping the $3,000.00 can be transferred back into rachsel’s Trust Account from the funds held by [their law firm].
This $3,000 should not come out of Rachel Bird’s trust Account which was a CSA mistake.
Mr Case is still under review by CSA progressing slowly.
I have provided bank details if this can be done.
On 15 July 2022, the respondent paid, or caused to be paid, the amount of $3,000 from the Trust Account to Rachel Bird & Co.
The respondent did not seek instructions from GS to pay the amount of $3,000 from the Trust Account to Rachel Bird & Co. Further, Ms GS did not direct the respondent to pay the amount of $3,000 from the Trust Account to Rachel Bird & Co.
On 15 July 2022, the respondent paid, or caused to be paid, the amount of $9,908.03 from the Trust Account to Services Australia in relation to a Child Support Register Notice. This notice was for unpaid child support owing by JR to his first wife with respect to children of that earlier marriage.
The respondent did not seek instructions from GS to pay the sum of $9,908.03 to Services Australia from funds held in the Trust Account. Further, GS did not direct the respondent to pay the sum of $9,908.03 to Services Australia from Funds held in the Trust Account.
By letter dated 16 September 2022, Rachel Bird & Co advised Robinson McGuinness that the sale proceeds from the Property were $302,086.69.
On or about 24 May 2023, the parties to the family law proceedings reached an agreement at mediation. The sums transferred from the trust account were added back to the property pool for the purposes of negotiating a property settlement and have been accounted for in the settlement reached between the parties.
On 6 July 2023, the Court published orders in the terms sought by the parties to the family law proceedings.

The Legislation

The Act is binding on an Australian Legal Practitioner, and a failure to comply with the Act can constitute ‘unsatisfactory professional conduct’ or ‘professional misconduct’.[2]
[2] Legal Profession Act 2006 section 389(a)
Sections 386 and 387 of the Act provides a statutory definition of ‘unsatisfactory professional conduct’ and ‘professional misconduct’ as follows:
386 What is unsatisfactory professional conduct?
unsatisfactory professional conduct includes 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 .
Note See also s 389 (Conduct capable of being unsatisfactory professional conduct or professional misconduct ).
387 What is professional misconduct ?
(1)In this Act:
professional misconduct includes—
(a)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
(b)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.
(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 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.
Note See also s 389.
If the tribunal is satisfied that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, it may make the orders mentioned in subsections 425(3) to (5) of the Act. These sections relevantly state:
425   ACAT orders—Australian legal practitioners
…
(3)     The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order recommending that the name of the practitioner be removed from the local roll;
(b)an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c)an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order that—
(i)stated conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and
(ii)the conditions be imposed for a stated period; and
(iii)states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;
(e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
(4)     The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order recommending that the name of the practitioner be removed from an interstate roll;
(b)an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled;
(c)an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order recommending—
(i)that stated conditions be imposed on the practitioner’s interstate practising certificate; and
(ii)that the conditions be imposed for a stated period; and
(iii)a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.
(5)     The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;
(b)an order that the practitioner undertake and complete a stated course of further legal education;
(c)an order that the practitioner undertake a stated period of practice under stated supervision;
(d)an order that the practitioner do or not do something in relation to the practice of law;
(e)an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;
(f)an order that the practitioner’s practice be managed for a stated period in a stated way or subject to stated conditions;
(g)an order that the practitioner’s practice be subject to periodic inspection by a stated person for a stated period;
(h)an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a stated person;
(i)an order that the practitioner not apply for a local practising certificate before the end of a stated period.
Section 223 of the Act deals with the holding and distribution of trust monies, and provides:
223   Holding, disbursing and accounting for trust money
(1)     A law practice must—
(a)hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received; and
(b)disburse the trust money only in accordance with a direction given by the person.
(2)     Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.
(3)     The law practice must account for the trust money as required by regulation.
(4)     If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (3), the practitioner or practice commits an offence.
Maximum penalty: 50 penalty units.
(5)     If a law practice that is a law firm, or a multidisciplinary partnership, contravenes subsection (1) or (3), each principal of the practice commits an offence
Maximum penalty: 50 penalty units.
Note For this part, a reference to a law practice includes the principals of the law practice (see s 218 (Liability of principals of law practices under pt 3.1)).
(6)     An offence against subsection (4) or (5) is a strict liability offence.

The Legal Profession (Solicitors) Conduct Rules 2015 (the Rules) impose binding obligations on practitioners, pursuant to section 585(1) of the Act. Further, section 585(2) of the Act provides that a failure to comply with the Rules can constitute unsatisfactory professional conduct or professional misconduct.
Relevantly, for this matter, rule 6 provides the following in relation to undertakings:
6.1 A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.

The Charges

The respondent was charged with 3 offences. The respondent accepts two of those charges, being that:
(a)He failed to hold trust monies deposited in the trust account exclusively for the persons on whose behalf it was received, and in doing so he breached section 223(1) of the Act (Charge 1).
(b)He failed to honour an undertaking given in the course of legal practice, and in doing so he breached rule 6.1 of the Rules (Charge 2).

Proposed Characterisation

The parties agree that the conduct the subject of the charges, when considered globally, is properly characterised as ‘professional misconduct’ as defined in section 387 of the Act.

The Proposed Disciplinary action

The Parties propose that the Tribunal make orders that:
(a)Pursuant to subsection 425(3)(e) of the Act, the respondent is publicly reprimanded.
(b)Pursuant to subsection 425(5)(a) of the Act, the respondent pay a fine in the amount of $8,000 in equal monthly instalments over 12 months.
(c)Pursuant to section 425(2)(b) of the Act that the respondent undertake and complete courses approved by the Law Society in ethics and trust accounting prior to making any application for a practising certificate.
The parties also seek an order pursuant to sections 433(10) and (5) of the Act that the respondent pay the applicant’s costs fixed in the sum of $3,000 in equal monthly instalments over 12 months.

Consideration

It is well established that in disciplinary proceedings, although resolution of matters by agreement must be encouraged, the Tribunal does not simply issue orders as agreed upon by the parties. In Nursing and Midwifery Board of Australia v Izzard (Izzard), the Tribunal explained:
As identified in Medical Board of Australia v Martin … there is a public interest in parties to an occupational discipline matter being able to identify areas of agreement, and seeking to resolve the matter by way of consent orders. However the role of the Tribunal is not to simply issue orders as requested by the parties. In making an order for occupational discipline, even where by consent, the Tribunal must actively consider the facts that are agreed, the characterisation of those facts and the orders proposed as an appropriate response to the matter.[3]
[3] Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 at [10], citing Medical Board of Australia v Martin [2013] QCAT 376
In this matter, the parties filed bare statements, setting out the agreed facts, and suggested characterisation, sanctions, and order for costs. The submissions did not cite any principles of law or any relevant cases. In the interests of being quick and efficient, and minimising the costs, I did not require that they do so. The allegations of breach of undertaking and misuse of a trust account are, unfortunately, not uncommon ones and, as a specialist tribunal, the Tribunal may draw upon its experience and knowledge in considering whether the characterisation of the conduct is appropriate.
In the case of Legal Profession Complaints Committee v Detata (Detata), the respondent legal practitioner was found to have breached an undertaking, which he gave to hold funds in the trust account of the firm he was employed by as security, for a prospective claim for damages by another party.[4] Martin CJ (Pullin and Murphy JJA agreeing) of the Court of Appeal of the Supreme Court of Western Australia expounded at length on the importance of legal practitioners performing their undertakings. Their honours’ comments are directly on point and bare repeating in full:
48     The importance of legal practitioners performing their undertakings cannot be overstated. The practice of giving, and relying upon, undertakings given by legal practitioners is widespread and serves an important public purpose. The circumstances in which undertakings are given and relied upon are many and varied. In some cases an undertaking will be proffered and received as a substitute for strict or timely performance of an obligation, perhaps arising under a contract or under a statutory provision. In other cases, the undertaking might be given in order to provide a form of security to the person to whom it is proffered - for example, an undertaking that an executed document will be held in escrow until certain conditions are met, or that legal proceedings will not be instituted if certain conditions are met, or that funds or other property will be retained by the practitioner until certain conditions are met. In all of these circumstances, the usual effect of the proffer and acceptance of the undertaking will be to obviate the need to commence or to continue legal proceedings. This serves the public interest by preserving the limited resources of the parties and the courts.
49     Undertakings will often be proffered and received in the course of legal proceedings - for example, in relation to interlocutory procedures. The provision of undertakings in those circumstances serves the public interest by reducing or averting interlocutory disputes.
50     Undertakings by legal practitioners are a common feature of commercial and property transactions in which legal practitioners are engaged. In some cases, a party might complete a transaction before all relevant conditions are satisfied in reliance upon an undertaking by a practitioner to the effect that he or she will cause a particular condition to be satisfied. In this context, the proffer and acceptance of undertakings by legal practitioners improves the efficiency and expedition of commercial and property transactions and thereby serves to lubricate the wheels of commerce, trade and finance: see Rubik Financial Ltd v Herskope [2010] WASC 343; In the Matter of a Solicitor ‘L’ (Unreported, VSC, LPA 3 of 1989, 17 21 June 1989).
51     Undertakings can only serve these purposes and thereby further the public interest if they are accepted and relied upon. In some circumstances, a practitioner may proffer an undertaking in terms which makes it clear that the undertaking is only that of the client and not the practitioner. In such a case, the obligation of performance will fall upon the client, not the practitioner. However, this is not such a case. In this case, the undertaking was expressly and unequivocally given in terms which bound both Mr Detata’s client, Mr Detata and the firm by which he was employed.
52     The proffer of an undertaking binding upon a legal practitioner and his or her firm can be expected to enhance the reliability of the undertaking, and thereby the prospect that it will be accepted and relied upon by the party to whom it is proffered. In this way, the proffer of an undertaking binding upon a legal practitioner enhances the achievement of the various purposes to which I have referred, and thereby enhances the public interest. It is therefore vital that legal practitioners perform their undertakings, regardless of whether the undertaking was proffered in error or oversight, irrespective of any change in circumstances, no matter how radical, and irrespective of any hardship to the legal practitioner concerned (see Bhanabhai v Auckland District Law Society [2009] NZHC 415 [59]-[64] (Priestley, Heath and Winkelmann JJ).
53     Further, it is vital for the maintenance of public confidence in the integrity of the legal profession and its practitioners, and for the maintenance of the confidence which practitioners have in dealing with each other, that performance of their undertakings be enforced: see (Rubik Financial Ltd).
54     For these reasons, the obligation of a legal practitioner to perform his or her undertaking is a solemn obligation of the utmost importance. Failure to perform that obligation will generally be regarded as professional misconduct, and depending on the circumstances, will often be regarded as serious professional misconduct.[5]
[4] [2012] WASCA 214
[5] Detata at [48]-[54]
The authorities similarly establish the importance of a solicitor managing their trust account.
In Re A Practitioner, the Full Court of the Supreme Court of South Australia said:
[A] practitioner’s trust account should be sacred, so that moneys paid into the account should only be paid out to the persons to whom the moneys belonged, or as they directed. [6]
[6] Re A Practitioner (1941) SASR 48, page 51. This statement was quoted with approval by King CJ in Re A Practitioner (1982) 30 SASR 27, pages 30-31, and by Bell J in Legal Services Commissioner v Rushford [2012] VSC 632 at [39]; see also Council for the Law Society of the ACT v LP 201809 (Charles Filgate Giles) [2019] ACAT 60 at [16]
Having regard to their Honours’ comments in Re A Practitioner and in Detata, particularly in relation to the seriousness of giving or breaking an undertaking, I am satisfied that the conduct in this case may appropriately be classified as professional misconduct, as defined in section 387 of the Act.
In terms of the proposed disciplinary action, the tribunal must consider whether the penalty is appropriate, having regard to the well accepted principle that the role of the tribunal is to is to protect the public and not to punish the practitioner.
In Council of the Law Society of the ACT v Legal Practitioner 201822 (Alveer Singh) (Singh), another case involving a breach of an undertaking, the Tribunal had regard to the helpful summary of the case law involving penalties for a breach of an undertaking by Chesterman M in Council of theLaw Society of New South Wales v Panopoulos.[7] I have done likewise.
[7] [2019] ACAT 27 at [62], citing Council of the Law Society of New South Wales v Panopoulos [2010] NSWADT 208 at [25]-[33]
In considering the appropriateness of the fine, I have also had regard to a useful consideration of fines in disciplinary proceedings in NSW undertaken by the NSW Court of the Appeal in Russo v Legal Services Commissioner.[8] Those cases satisfy me that, notwithstanding the charges are serious ones, a fine of less than $10,000 is not inappropriate in this case.
[8] [2016] NSWCA 306 at [68]-[76]
Taking into account the practitioner’s age, his admissions, the recovery of the funds, the absence of any suggestion of personal gain by the respondent, or any suggestion of previous misconduct, I am satisfied that the proposed penalties appropriately protect the public and discourage misconduct, without unduly punishing the practitioner.
As to costs, the Council of the Law Society is entitled to its costs where it successfully brings occupational disciplinary proceedings under the Act. The parties have agreed on a sum, and I have no reason not to accept it is appropriate.
Accordingly, I make the orders sought by the parties.

………………………………

Presidential Member H Robinson

Date(s) of hearing:	21 August 2023
Solicitors for the Applicant:	Mr S Harper, TG Law
Counsel for the Respondent:	Mr I Nash SC