Law Society of New South Wales v Oliver

[2007] NSWADT 210

CITATION:	Law Society of New South Wales v Oliver [2007] NSWADT 210
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Brian William Oliver
FILE NUMBER:	062019
HEARING DATES:	2 & 3 April 2007
SUBMISSIONS CLOSED:	3 April 2007
EXTEMPORE DECISION DATE:	3 April 2007
DATE OF DECISION:	11 September 2007
BEFORE:	Karpin A - ADCJ (Deputy President); Barnes M - Judicial Member; Dyster B - Non Judicial Member
CATCHWORDS:	Solicitor – Disciplinary application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 2004
REPRESENTATION:	APPLICANT N Beaumont, barrister RESPONDENT P Lakatos, barrister
ORDERS:	1.Finding that the solicitor is guilty of professional misconduct; 2. The Tribunal reprimands the solicitor; 3.Solicitor fined $3300.00 to be paid within 30 days. In default of such payment upon 7 days notice matter may be listed before the Tribunal for an order (if the Tribunal sees fit) that the solicitor’s practising certificate be suspended until he makes such payment.; 4. Solicitor to pay Law Society’s costs of the proceedings, agreed in the sum of $25,000 inclusive of GST payable over 5 years from date of orders. First payment to be made on 2 October 2007 in equal six monthly instalments, save in the event of default the whole amount becomes immediately due and payable.; 5.For the period 30 June 2007 to 30 June 2009 the solicitor to make, on an annual basis, his tax returns and the accounting records used to make up those returns, available for inspection by an accountant nominated by him and approved by the Law Society, at the solicitor’s expense.; 6.The solicitor to ensure that the said accountant provide to the Council of the Law Society, at the solicitor’s expense, for the period up to and including 30 June 2009, an annual report indicating that, to the best of the accountant’s knowledge and belief, the solicitor has complied with his reporting and payment obligations to the Australian Taxation Office and to his staff (if any). Such reports to be received by the Council of the Law Society no later than 60 days after the end pf each financial year, the first of which shall be due for the financial year ending 30 June 2007.; 7. Tribunal orders that the transcript of proceedings be taken out and referred to the Registrar of the Administrative Decisions Tribunal to be forwarded to the Legal Services Commissioner for consideration as to the conduct of the partners of Shaddick Baker & Paull, solicitors.

1 This matter was resolved by consent orders to which the Tribunal made some minor amendments, and added an order in relation to a matter that came to light in the course of the proceedings. That resolution was achieved on the second day of hearing.

2 On 22 August 2006 the applicant filed an application seeking orders that the respondent's name be removed from the Roll, and that the respondent pay the applicant's costs.

3 The application alleged that the respondent was guilty of professional misconduct on the grounds that he had failed to account and had misappropriated moneys.

4 The particulars of complaint alleged that the respondent was formerly employed by Messrs Shaddick Baker & Paull[SBP]. In the course of that employment he regularly appeared in the Local Court at Windsor. Clients would from time to time pay him in cash.

5 The particulars recited four occasions, between September 2002 and October 2003 when the respondent received cash from clients when appearing for them at Windsor Local Court. Those cash sums ranging in quantum between $600.00 to $1,000.00.

6 In each case the particulars alleged that the respondent had failed to account to SBP for the sums received.

7 The respondent's reply denied failing to account and misappropriation of moneys.

8 The respondent did not deny that he had received cash from clients whilst employed. He asserted, however, that any cash received that was not given to a bookkeeper, was given to one or other of the partners at SBP.

9 Evidence adduced by the applicant established that of the allegations alleged, an amount of $3,300 could be proved to have been paid in cash. At the commencement of hearing counsel for the respondent informed the Tribunal that those payments would not be disputed.

10 Evidence for the applicant was tendered. It included a substantial affidavit from Mr. Ray Collins, solicitor for the Council of the Law Society of New South Wales; a substantial affidavit sworn by Elizabeth Palamara, bookkeeper employed by SBP; another affidavit by the same deponent and 2 further affidavits from prior bookkeepers employed by SBP over the relevant period.

11 The clients of SBP called to give evidence were not challenged.

12 The respondent filed 2 affidavits. Such facts as were taken from those affidavits appearing in these reasons, were not challenged. The more substantial of those affidavits was filed in the Tribunal hearing on the first day of hearing.

13 The respondent commenced employment with SBP following his admission to practice in 1988. He remained in that employment until he left in 2004.

14 Apart from a short period of more varied work at the commencement of his employment, the respondent was engaged in family law and criminal matters including Local Court matters.

15 Shortly after he took up his employment, the respondent was instructed by one of the partners that a separate file was not required to be opened in matters of short duration or involving minor costs. Such matters were to be retained in a miscellaneous file.

16 Subsequently the respondent was instructed by one of the partners that in such matters, where the client paid fees in cash, that money was to be given to one of the partners.

17 Payment in cash occurred infrequently and usually in respect of Local Court matters.

18 In matters where no file was opened and the client paid in cash, the respondent would either give the money directly to one of the three partners, or if no partner was available, place the cash in the desk drawer of one of the partners.

19 From time to time the respondent was given back some of the cash by the partner to whom he paid the money.

20 The respondent did not declare such money as taxable income, and believed that the cash given to the partners would not be declared as taxable income.

21 In December 2003 the respondent had been employed by SBP for more than 15 years. He and his wife took their first extended holiday overseas. Whilst away, they agreed that shortly after his return he would set up practice on his own account.

22 Upon his return in January 2004, the respondent was met with an allegation that he had misappropriated moneys received from clients. His resignation was demanded. The letter of resignation had been prepared in advance. He signed it.

23 The respondent’s explanation for accepting this ultimatum is that he had already determined to resign; he believed there was no point in arguing about the allegations because he believed the partners wished him out of the practice.

24 Shortly thereafter the respondent established his own practice working from his home in the Blue Mountains.

25 In or about January 2005, the respondent commenced doing locum work in the Windsor area and making appearances at Windsor Local Court. He was placed on the Duty Roster at that court.

26 In February 2005, the partners of SBP wrote to the respondent, referring to an “understanding” with the partners entered into at the time of his resignation that he would not practice in the Hawkesbury area. It noted with “considerable concern” his recent professional appearances in the area.

27 The letter made allegations that the respondent had failed to account for fees received. Those allegations have not been established on the evidence before the Tribunal. The letter concluded:

“Unless you immediately cease providing legal services to clients and practitioners in the Hawkesbury Local Government area, and undertake to us in writing that you will not re-commence in the future, we shall have no hesitation in making a formal complaint about your conduct to the Legal Services Commissioner …”

28 The respondent did not take any action in relation to this letter.

29 On 22 June 2005, SBP wrote to the Professional Standards Department of the applicant making a formal complaint.

30 Following investigation of that complaint, the applicant filed the current application.

31 In opening to the Tribunal, counsel for the applicant indicated that 2 if not 3 of the partners of SBP would be called to give evidence. After all other evidence had been adduced and following an adjournment, counsel for the applicant indicated to the Tribunal that he had some difficulties consequent upon a conference with 2 of the partners to receive their response to the respondent’s affidavit filed in the Tribunal earlier in the day. The matter was adjourned to the following day.

32 On the following day, counsel for the applicant advised the Tribunal that were the 2 partners of SBP whom he had interviewed, called to give evidence, they would confirm that there had been a practise from time to time of cash moneys received by the respondent from clients, being paid to the partners.

33 It was submitted that two consequences flowed from those admissions: firstly that having regard to the respondent’s evidence, that practise could be accepted by the Tribunal as an agreed fact; secondly that in light of that information, it was appropriate for the applicant to proceed on a basis other than that in which the application had initially been framed, resulting in the withdrawal of the application that the respondent be removed from the Roll, replaced with an agreement that he be reprimanded and fined.

34 Counsel for the respondent indicated his client’s agreement to this course of action.

35 The Tribunal concurred with both counsel and the agreed findings and orders were prepared and made by the Tribunal with minor changes.

36 The Tribunal directed that the transcript of proceedings be taken out and referred to the Registrar of the Administrative Decisions Tribunal to be forwarded to the Legal Services Commissioner for consideration as to the conduct of the partners of SBP.

37 Orders were made accordingly.