Law Society of New South Wales v Et

[2003] NSWADT 41

CITATION:	Law Society of New South Wales v ET [2003] NSWADT 41
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT ET
FILE NUMBER:	022009
HEARING DATES:	21/01/03
SUBMISSIONS CLOSED:	01/21/2003
DATE OF DECISION:	03/07/2003
BEFORE:	Nader J QC - ADCJ (Deputy President); Durbach A - Judicial Member; Bennett C - Member
APPLICATION:	Application for order prohibiting barrister or solicitor from employing specified person (s.48I)
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987 Solicitors Act 1957 (England)
CASES CITED:	Collector of Customs v Agfa-Gevaert Ltd (1996) 61 ALJR 123 K & S Lake City Freighters Pty Limited v Gordon & Gotch Ltd (1985) 157 CLR 309 Darling Casino Ltd v Casino Control Authority (1997) 71 ALJR 540
REPRESENTATION:	APPLICANT D Barton, solicitor RESPONDENT Unrepresented
ORDERS:	1 That the application be dismissed; 2 Limited non-publication order; 3 No order as to costs

1 The Council of the Law Society of New South Wales, by application dated 6 March 2003 seeks and order under section 48I of the Legal Profession Act, 1987 (the Act), prohibiting any barrister or solicitor (without approval under section 48K of the Act) from employing or paying ET in connection with the barrister’s or solicitor’s practice.

2 ET did not appear at the hearing, nor was she represented. We were satisfied that she had been duly served with notice of the date and place of the hearing. We received no communication that might explain her non-appearance. ET was born in 1983 and so was 16 years old at the time of the alleged offence.

3 We have considered carefully the thoughtful and thorough, written and oral, submissions of Mr Barton who appeared for the Council of the Law Society of NSW. However, for reasons which follow, we think that the application fails at the threshold. Therefore, it is unnecessary to consider with any particularity the allegations that are said to warrant the making of the order sought. It is enough to say that it is alleged that on 2 March 2000 ET misappropriated cash in the amount of $1,560.00, being trust moneys within the meaning of s. 61(9) Legal Profession Act when she was employed by the firm of solicitors, Pye Rogers Fairfax & Patterson, and that on the same occasion she wilfully failed to deposit the sum of $2,860.00 to the firm’s trust account. It may be said in a general way that ET is alleged to have stolen the money referred to.

4 Section 48I of the Act is in the terms following:

48I Prohibition on employment of certain non-legal clerks
(1) This section applies to a person who:
(a) is not a legal practitioner or interstate legal practitioner, and
(b) is or was a clerk to a barrister or solicitor.

(2) On application by a Council, the Tribunal may make an order prohibiting (without approval under section 48K) any barrister or solicitor from employing or paying in connection with his or her practice a specified person to whom this section applies if:
(a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with a barrister’s or solicitor’s practice, or
(b) the Tribunal is satisfied that the person has been guilty of conduct which, if the person were a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10.

(2A) The prohibition imposed by an order made under this section extends to a prohibition on the employment or payment of the person against whom the order was made in connection with the legal services provided by an incorporated legal practice.

(3) An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made.

(5) The death of a barrister or solicitor does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a clerk to the barrister or solicitor.

5 In order for section 48I to have application to the person concerned, ET, there must be evidence that ET is or was a clerk to a barrister or solicitor. The absence of such evidence is the reason why this application fails ad liminem.

6 The question may be put more explicitly. Was ET’s work as an employee of the firm of solicitors, Messrs Pye Rogers Fairfax and Patterson, that of a clerk within the meaning of that word in section 48I of the Act? The question is not merely whether a job description communicated to her at or near the commencement of her employment described that work of a clerk but, rather, whether ET was a clerk, in fact.

7 The word “clerk” is not defined by the Act. The meaning of the word “clerk” in this context has been referred to in cases in this Tribunal. Most significantly, in the matter of Tina Louise Lake and Part 3A of the Legal Profession Act 1987, the Legal Services Tribunal, in its decision of 9 December 1997, said:

‘However, in s. 48I the word “clerk” seems to us to be used in a restricted way. It is significant to look at the use of the work in its context: “is or was a clerk to a barrister or solicitor”. It is difficult to conceive, in the legal world, of a person being a barrister’s clerk when that person is merely an office person or a secretary. That is not the general use of the word in legal parlance.

And, after all, the word is used in the context of the regulation of the practice of law. We are fortified in the view that “clerk” in this context has a meaning different from that in other contexts and we refer to the observations of the High Court on the interpretation of words used in specific contexts in Collector of Customs v Agfa-Gevaert Ltd (1996) 61 ALJR 123 at 128-130. And see also the observations of Gibbs CJ in K & S Lake City Freighters Pty Limited v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, where his Honour observed that the “words of any statutory provision must be first read in the context provided by the statute as a whole” (quoted with approval in Darling Casino Ltd v Casino Control Authority (1997) 71 ALJR 540 at 548.’

8 The use of the word “clerk” in legislation relating to solicitors is not new. As far as we know, having regard to material provided to us for the hearing of this matter, the word is not defined in any relevant legislation. But it is a word with a truly ancient heritage.

9 In NSW, forerunners of the Act contained provisions relating specifically to clerks with similar effect to section 48I: eg, Act No.29, 1967, s.6.

10 S.38 of the English Solicitors Act 1957 is to a similar effect. It is in the following terms:

38. (1) Where in the case of a person who is or was a clerk to a solicitor but is not himself a solicitor –
(a) that person has been convicted –
(i) of larceny, embezzlement or fraudulent conversion;
(ii) of any other criminal offence in respect of any money or property belonging to or held or controlled by the solicitor by whom he is or was employed or any client of that solicitor;

(b) …
an application may be made to the disciplinary committee with respect to that person by or on behalf of the Society.

(2) … the disciplinary committee may make and order that … no solicitor shall take into or retain in his employment, or remunerate, the person …”

11 Similar provisions were enacted in England in 1974 (s.43).

12 The English forerunner of s.48I, enacted in 1957, tends to support the other indicia to which we have referred to the effect that the meaning of the word ‘clerk’ in such sections is not a vague, amorphous, ‘modern’ one, but a proper and restricted meaning of the word.

13 The dictionary definition of clerk also supports the opinion that the expression “clerk” has this more restricted meaning. The Shorter Oxford English Dictionary gives the following:

1. A man ordained to the Christian ministry, formerly esp. in minor orders, now (arch.or Law) in holy orders. OE
b. A lay officer of a cathedral, parish church, university college chapel, etc. M16

2. A literate person, a scholar. Now arch. or Hist. OE.

3. An officer in charge of records etc.; the secretary or agent of a town council, corporation, court, etc.; spec. a senior official in Parliament. E16.

4. A person employed in a bank, office, shop, etc.; to make entries, copy letters, keep accounts and files, etc. Also a person being trained in law. E16.

5. An assistant in a shop or hotel. N.Amer. L18

14 There were other terms available to the Parliament if it were intended that the word be construed in a general and loose manner. The Parliament used the phrase ‘associate of a solicitor or barrister’ in subsection 48K(7), another provision of part 3A of the Act. The definition of ‘associate’ includes, inter alia, ‘a person who is employed or paid in connection with the barrister’s or solicitor’s practice.’ It can been seen that the word ‘associate’ in context of section 48K is very generic in its comprehension, including not only any employees of the practice but persons who may not be employees but who are paid in connection with the practice.

15 We conclude, therefore, that the Parliament used the word ‘clerk’ in section 48I advisedly and with the intention of signifying less scope than ‘associate’ or ‘employee’. The word ‘clerk’ was intended to focus upon a particular class of persons.

16 Section 48I, like its predecessors, seems to have been designed to minimise a danger that might otherwise have been more difficult to control. The context in the Act of section 48I is the strongest indicator of that fact. Section 48I is within part 3A of the Act. It may be helpful to list here the section headings of Part 3A.

PART 3A - UNQUALIFIED PRACTITIONERS
48B Unqualified person acting as barrister or solicitor and barrister
48C Unqualified person making false representation to be a barrister or solicitor and barrister
48D Offence by corporation or officers
48E Limitation on general legal work and probate work
48F Sharing receipts
48G Multidisciplinary partnerships
48H Community legal centres
48I Prohibition on employment of certain non-legal clerks
48J Prohibition on partnerships with certain non-legal partners
48K Associates who are disqualified or convicted persons
48L Miscellaneous provisions—secs 48I–48K
48M Injunctions

17 A cursory reading of those sections will show that the headings appropriately describe them. Part 3A of the Act is concerned with the regulation of persons who may engage in some aspect of the practice of a solicitor or barrister. It is concerned with the regulation and control of persons who are not qualified solicitors or barristers but who might perform some of the tasks proper to legal practitioners or whose work may require and involve intimacy with the confidential affairs of clients. They are different in kind from “office boys” or “office girls”, even if the latter are, in accordance with the modern use of more flattering language, described by their employers as “clerical assistants”.

18 We think that section 48I is included in Part 3A because of the nature of the work carried out by clerks. They are not barristers or solicitors but they may be closely connected with the legal work of practices and with the confidential affairs of clients. In the course of their duties, they may become privy to the confidences of clients of the practices. They may be required to do clerical work that involves skill and trust and which, if not diligently and honestly done and kept confidential, may cause damage to the clients concerned. But, because they are not solicitors or barristers they are not amenable to the discipline to which barristers and solicitors are subject. Because of the nature of the work a clerk may be required to do, s/he, to use the words of section 48I, must not be a person who ‘has been guilty of conduct which, if the person were a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10’ of the Act. Here, the words of the section compare the work of a clerk, within the meaning of section 48I, with that of a solicitor or barrister. This is a reference to the kind of conduct for which legal practitioners might be disciplined: conduct of which clerks might be guilty, in a closely analogous sense.

19 Considering those matters it becomes clear that the Parliament had good reason to provide for the barring of such persons from legal practices in the circumstances of paragraphs (a) and (b) of subsection 48I(2).

20 But, the other side of the same coin is that clerks referred to by section 48I is not just any employees, or even any employees who may perform occasional duties that could be described as clerical. By reference to his or her actual duties, the person must be a clerk, properly so called: a person who, by reason of some significant involvement in the legal practice, as such, is required to be a fit and proper person to be employed or paid in connection with a legal practice, and one who has not been guilty of the kind of conduct described in paragraph 48I(2)(b).

21 A clerk may perform a considerable amount of non-clerical work. Especially is this so in a small practice. Indeed, a solicitor may perform much non-legal work in such a situation. If the clerical work done by a person is sufficient as to quality and quantity, that person may properly be called a “clerk”.

22 We now turn to the evidence of the nature of the work carried out by ET. We have been able to find only three kinds of such evidence:

1. The Letter of Offer dated 31 January 2000.
2. The statements of Michelle Allen and Olivia Wesley-Smith dated 5 and 13 April 2000, respectively.
3. Transcript of the electronically recorded interview between Chris Lord of the Law Society of NSW and ET conducted as the offices of the Law Society on 1 May 2000.

23 ET’s appointment was confirmed in the letter of offer as ‘Junior Clerical Assistant’. The letter confirmed that her appointment to that position commenced on 28 January 2000. Her ‘Responsibilities’ were described in an attachment to the letter headed ‘Junior Clerical Assistant’s Daily Routine’. The conditions of ET’s employment were said in the letter to be more fully set out in the enclosed document entitled ‘Standard Conditions of Employment’. Nothing else in the body of the letter is of assistance for present purposes.

24 The content of the attachment to the letter headed ‘Junior Clerical Assistant’s Daily Routine’ is part of the main exhibit of the Informant. It may be regarded as incorporated in these reasons by reference. The language used to describe most of the duties in the ‘Routine’ is insufficient to enable any safe inference to be drawn as to the precise nature of the work referred to. If anything, the impression given by the document is that most of the tasks were of a fairly menial kind that might be given to beginners or what were once called “office boys” or “office girls”: of use to the clerks and clerical staff but not themselves clerical activities.

25 A real difficulty is that, in any event, there is no evidence of which, if any, of those named duties, except banking, were in fact performed by ET.

26 The document referred to headed ‘Standard Conditions of Employment’ provides by its first clause:

‘You will be expected to perform work for this firm in the position to which you have presently been appointed or in such other position or with such other duties as may from time to time be assigned to you by this firm.’

27 Ms Allen, bookkeeper of Messrs Pye Rogers Fairfax and Patterson at the material times, said that she worked for the firm on 3 days per week (Mondays, Tuesdays and Wednesdays). Her dealings with ET involved the daily banking. Amongst other things, Ms Allen stated,

‘I would prepare the banking and ET would take it to the Bank and deposit same. ET would always return with the deposit slips to me on her return from the Bank. She would also come to myself or Olivia when she required petty cash for the purchase of items for the office. I would always give the money directly to her and on her return she would provide a receipt and the change is there was any.’

28 There is no other description in Ms Allen’s statement of the work actually carried out by ET in the course of her employment.

29 Ms Olivia Wesley-Smith was the relief bookkeeper for Messrs Pye Rogers Fairfax and Patterson. She attended to general bookkeeping duties on Thursdays and Fridays. She states that she was appointed as a mentor to ET and she was present when ET’s Letter of Offer was handed to ET by the Partners. Par. 6 of her statement is as follows:

‘My dealings with ET involved general office administration and the banking on Thursdays and Fridays. On these days I would prepare the banking at Michelle Allen’s desk and I would then hand this to ET who would take it to the bank and deposit same. Once I had completed the bookkeeping for the day I would then return to my own desk. When ET returned from the bank she would place the deposit slips for that day’s banking on Mrs Allen’s desk to be filed.’

30 There is no further description of the work performed by ET in Ms Wesley-Smith’s statement.

3. Transcript of the electronically recorded interview between Chris Lord of the Law Society of NSW and ET conducted as the offices of the Law Society on 1 May 2000.

31 The interview was conducted in the presence of a number of persons including the parents of ET.

32 ET was born in 1983, so that she was 16 years old at the date of her employment on 28 January 2000 and on 2 March 2000, the date of her alleged misappropriation of cash.

33 The following questions and answers relevant to the work performed by ET appear in the transcript of the interview:

LORD: When you went through the interview process, did they explain to you what your duties would be?
ET: Yep.
LORD: What did they say?
ET: Just like opening files and to do banking, mail, yeah – and filing, cleaning and stuff.
LORD: Okay, was that actually explained to you during the interview process or afterwards.
ET: A little bit was in the interview and then afterwards.
LORD: Who explained that to you afterwards?
ET: Both Ken and Geoff.
LORD: So you actually spoke to both partners then?
ET: Yep.
…
LORD: Okay, just turning over now to an attachment which is titled, Junior Clerical Assistant’s Daily Routines and it seems to have a timeframe which is as it suggests a diary routine going from 8.45 to 5 pm. Would you say that the document accurately sets out what you were expected or what you understood your duties to be?
ET: Yeah.
LORD: You can see there is a timeframe of 3.30 pm, obviously an approximation, it just has the word, Banking – was that explained to you at all as to what was expected?
ET: Just that I had to take the banking down to the bank, yeah.
LORD: Did anyone in particular explain that function to you?
ET: There was a girl who showed me what to do and just, yeah, it was explained like that we just go down to the bank and, yeah.
LORD: Do you recall who this girl was?
ET: Crystal
…
She was the junior before me.
LORD: Did the firm at all explain to you what the nature of the money was that you were banking – if it was their money or if it was …
ET: No.
LORD: When we talk about your duty of banking can you tell me or run through with me what you would typically do?
ET: Just when the banking was finished or like when they – it was ready to be banked just walked down to the bank and lined up and give it to the teller lady.
LORD: Okay, now, you just mentioned when they put it together or when it was ready for the banking, who’s they?
ET: On some days it was Michelle. Other days it was Olivier or other days it was another Michelle and it was either one of them.
LORD: Okay, and were you actually involved in the receipting of monies when a client paid?

ET: No, up to – I don’t know, about a week before I left, they showed me what to do and I took like one person’s money, yeah, and wrote a receipt for it.
LORD: Was it at the front desk or?
ET: Yeah, at the reception desk, yeah.
LORD: And that was the only time that you took money directly from a client?
ET: Oh yeah, I think there was – I don’t know, I might have took it, the money, wrote receipts a couple of times and then I think I did that Eftpos thing once.
LORD: And that was only a week leading up before you left?
ET: Yeah.
LORD: So you were saying before – just get my understanding correct that Michelle or Olivier or another Michelle would basically prepare the banking?
ET: Mm.
LORD: Okay, would they – what would they actually give you?
ET: Two sheets of paper folded over with an envelope.
LORD: Did you actually see them put anything in the envelope?
ET: No.
LORD: So what did you think as in the envelope?
ET: There was no envelope like – it as like a paperclip, clipped all together, yeah.
LORD: What did that actually include? There were two pieces of paper and what else?
ET: Either cheques or money, yeah.
LORD: Did you know what the two pieces of paper were?
ET: Just like deposit slips, yeah.
LORD: Were you involved in the generation or the creation of those deposit slips?
ET: No.
LORD: So you were given a couple of deposit slips, cheques and/or cash and then what would you do?
ET: Just take it down to the bank.
LORD: Which bank did you go to?
ET: The Westpac Bank or the St George Bank.
LORD: Okay, and when you went to the bank, what happened then?
ET: After the teller lady had to stamp it and then I’d take the one sheet back.
LORD: Where would you take it back to?
ET: Give it back to whoever’s doing the accounts for the day, yeah.
LORD: Being Michelle or Olivier or the other Michelle?
ET: Yeah.
LORD: What was your understanding as to where that deposit slip went when you took it back to the firm, what happened with it?
ET: They – it went in there files, yeah.
LORD: When you went to the bank and you handed across the money to the teller and they did what they had to do, were you aware of where the money was going into which accounts?
ET: No.
LORD: So you understood basically just handing across the money and the bank did what they had to do.
ET: I knew there was two accounts that they went into but, yeah, I didn’t know what was for what.
LORD: Do you know what those two accounts were?
ET: The office account and a trust account.
LORD: Did you understand what the trust account was for?
ET: No.

34 There is no other material in the record of interview that throws any light on what were the actual duties carried out by ET. The account of her work with respect to banking shows her to have been a courier or messenger: the means by which money was conveyed from the law firm to the bank. The banking papers were prepared, packaged and clipped together for her. She had no more to do than to deliver it to the bank teller and then to deliver the receipts from the teller back to the firm.

35 There is no other evidence before us that satisfies us, even on the balance of probabilities, that she was a clerk in the relevant sense.

36 The statements of the partners of the practice that employed ET are devoid of any reference to her duties from which it might be inferred that she was a clerk in the relevant sense.

37 The line separating a clerk properly so-called from a person who performs occasional clerical duties but who is not a clerk may be very difficult to draw in many cases. There may not always be an obvious and defining line of demarcation. No-one would confuse a plant-operator with a clerk, but a person in ET’s position is more difficult to distinguish. However, we think that in this case the criteria defining a clerk and distinguishing a clerk from non-clerks are not present. The question whether ET was a clerk is of critical importance because it determines the jurisdiction of the Tribunal to apply the provisions of s.48I. It is not a matter that can be quickly and superficially determined. In our opinion the evidence has failed to prove a critical, threshold fact.

38 Accordingly, an essential condition of section 48I of the Act not having been satisfied, the application is dismissed. We order that the name of the respondent not be published. As ET took no part in these proceedings, we make no order as to costs. We do not have to consider what order, if any, as to costs would have been made if ET had taken part.