Law Society of New South Wales v Ong
[2008] NSWADT 266
•19 September 2008
CITATION: Law Society of New South Wales v Ong [2008] NSWADT 266 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the Law Society of New South Wales
Marilynn OngFILE NUMBER: 062031 HEARING DATES: 7 June 2007, 4 February 2008 SUBMISSIONS CLOSED: 4 April 2008
DATE OF DECISION:
19 September 2008BEFORE: Karpin A - ADCJ (Deputy President); Currie J - Judicial Member; Costigan M - Non-Judicial Member CATCHWORDS: Solicitor – disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004CASES CITED: Re Hodgekiss (1959) 62 SR (NSW) 340
Leon Nikolaidis v Legal Services Commission [2007] NSWCA 130 (8 June 2007)
In re City Equitable Fire Insurance Co Ltd [1925] Ch 407
Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 740-741
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Law Society of New South Wales v Jones (unreported 27 July 1978) CA (NSW)REPRESENTATION: APPLICANT
RESPONDENT
P Boyd, solicitor
R Winfield, barristerORDERS: i. The Respondent's name be removed from the Roll
ii. The Respondent pay the Law Society's costs of and incidental to these proceedings, in the sum of $2,500.00 within three months of the date of this judgment.
REASONS FOR DECISION
The Application for Decision
1 By its Application for Original Decision dated 28 November 2006, the Council of the Law Society of New South Wales applied for disciplinary action pursuant to Section 551 of the Legal Profession Act 2004 ("the Act"), against the Respondent Marilynn Ong, a Solicitor. The Application sought orders that:
2 Mr Boyd, Solicitor, for the Law Society moved at the hearing on the basis of the Application.
(i) the Respondent's name be removed from the Roll;
(ii) the Respondent pay the Applicant's costs; and
(iii) such other Order as to the Tribunal seems fit.
3 The Grounds for the Application are that the Respondent whilst practising as a Solicitor, was guilty of professional misconduct in that she:
The Particulars and Evidence Relied on by the Law Society
(i) wilfully breached Sections 61 and 62 of the Legal Profession Act 1987;
(ii) misappropriated trust monies; and
(iii) hindered, obstructed and delayed a Trust Account Inspector.
4 The Particulars which form Schedule 1 to the Application set out the Law Society's allegations of the Practitioner's conduct in respect of two clients namely:
5 The Particulars also set out the Law Society's allegation that the Respondent hindered, obstructed and delayed a Trust Account Inspector, Mr Garry Napper.
(a) Cheng Ho Raymond Ong ("Mr Ong") (it is noted that Mr Ong is not related to the Respondent); and
(b) Alexander Lone ("Mr Lone") and Win Htein ("Mr Htein").
6 The Particulars and evidence relied on by the Law Society will be considered separately in relation to each of these three sets of allegations.
(a) Mr Ong
7 The Law Society alleges that the following occurred in respect of this client.
8 The Respondent as a Solicitor acted for Mr Ong on the sale of a home unit at Old Toongabbie for a consideration of $362,000.00.
9 On exchange of contracts on 10 June 2004 the real estate agent held the sum of $36,830.00 being the deposit paid on exchange plus an additional amount, apparently paid in error by the purchasers, of $630.00. Settlement figures were calculated by both the Respondent and the solicitors acting for the purchasers on the basis that the deposit held by the agent was $36,200.00, whereas the agent actually held a total of $36,830.00, the difference being the $630.00.
10 On settlement the Respondent calculated that from the settlement funds an amount of $118,428.83 was payable to Mr Ong. That figure was arrived at after deducting an amount of $8,145.00 as monies said to be payable to the Office of State Revenue as Vendor Duty. However, Vendor Duty was not payable by Mr Ong because he had signed a form of application for exemption and the Transfer had been stamped as Vendor Duty Exempt.
11 On 5 August 2004, the day after settlement, the Respondent deposited to her office account two cheques received at settlement in the amounts of $9,616.00 and $50,000.00 respectively. The $9,616.00 represented the $8,145.00 referred to in paragraph 10 above on account of Vendor Duty plus the Respondent's costs and disbursements.
12 On 10 August 2004 the Respondent deposited to her office account a cheque for $27,780.00 which she had received from the real estate agent, representing the amount held by the agent less commission, plus the additional amount of $630.00 paid by the purchasers and referred to in paragraph 9 above. The $630.00 should of course have been accounted to the purchasers on settlement. If one deducts the amount due to the Respondent for her costs being $1,556.90 and the amount of $630.00 which should have gone to the Purchasers on settlement, the amount to be held by the Respondent for Mr Ong was $85,209.10.
13 As at 17 August 2004 only $4,392.47 was held by the Respondent in her office account. In the absence of any proper excuse or any proper direction from her client, the allegation is that the Respondent misappropriated the funds of Mr Ong in the amount of $80,816.63 (being the $85,209.10 referred to in the previous paragraph less the $4,392.47), and the funds of the purchasers in the amount of $630.00, making a total allegedly misappropriated of $81,446.63.
14 On 3 September 2004 the Respondent made payment to Mr Ong of $77,028.50 based on settlement figures calculated by her. This left a balance of $8,180.60 unaccounted for.
15 In support of these allegations the Law Society relied on a report by Ms Jean Sayer, Chartered Accountant dated 9 December 2005 ("the First Report") which was annexed to the affidavit of Ms Sayer sworn on 3 November 2006 and which, subject to certain sections which were not read, was admitted into evidence.
(b) Mr Lone and Mr Htein
16 The Law Society alleges that the following occurred in respect of these clients.
17 The Respondent acted as Solicitor for both Mr Lone and Mr Htein on the transfer by Mr Htein of his half share as tenant in common in a property at Ashfield, to Mr Lone.
18 In order to effect the purchase of this half share in the property, the existing mortgage on the property was discharged and a new mortgage was entered into by Mr Lone, the mortgagee being Colonial State Bank. The net proceeds of the loan from Colonial State Bank were $363,343.00.
19 At settlement on 19 July 2004 the Respondent directed Colonial State Bank to provide a number of cheques including a cheque to the Respondent's firm Ong & Co in the amount of $73,150.50. On the following day the Respondent deposited this cheque into her office account which had a balance immediately prior to that deposit of $976.64.
20 From the $73,150.50, various sums were drawn totalling $48,161.00 in relation to Mr Htein. However, a further sum of $17,145.43 not related to the affairs of Mr Htein was also disbursed and this in the Law Society's contention represents a misappropriation by the Respondent.
21 As at 29 July 2004 the balance of the solicitor's office account was $8,820.71. On 30 July 2004 Mr Lone paid the Respondent $1,456.31 being the outstanding balance to complete his purchase. The resulting balance in the Respondent's office account of $10,277.02 was insufficient to pay the balance due to Mr Htein from the proceeds of settlement which was $17,654.07. The Respondent advised the Receiver that at the direction of Mr Htein she paid Mr Htein's wife the sum of $7,000.00 in cash.
22 From the balance of the solicitor's office account on 30 July 2004, which was $10,277.02, various withdrawals and debits were made over the next few days, resulting in that account as at 2 August 2004 having a credit balance of only $2,771.42.
23 Accordingly it is alleged that the difference, being $7,505.60, was misappropriated by the Respondent.
24 It is further alleged that on 17 August 2004, $10,654.00 was debited to the Respondent's office account by card entry. The First Report by Ms Sayer alleges that this debit was funded by monies deposited to the account received in trust for Mr Ong, thereby representing a misappropriation of Mr Ong's part of his sale proceeds.
25 The allegations in respect of Mr Lone and Mr Htein are supported by the findings in the First Report of Ms Sayer at pages 31 to 42 of her affidavit of 3 November 2006.
(c) The Respondent hindered, obstructed and delayed a Trust Account Inspector
26 Following a complaint by Mr Ong, a Trust Account Inspector, Mr Garry Napper ("Mr Napper"), examined the Respondent's affairs pursuant to Section 55 of the Legal Profession Act 1987.
27 The Law Society alleges that by virtue of her responses to questions by Mr Napper relating to the directions to pay moneys in Mr Ong's matter and to Mr Ong's Vendor Duty liability (as outlined in paragraphs 10 and 11 above), the Respondent hindered, obstructed and delayed Mr Napper.
28 In particular, it is alleged that during the course of Mr Napper's investigation, the Respondent told Mr Napper that when acting on the sale for Mr Ong the balance of the deposit monies were deposited into her office account. Mr Napper asked the Respondent whether she had a copy of the direction to the real estate agents authorising this and the Respondent replied:
29 Annexure A to Mr Napper's Affidavit sworn on 24 October 2006 purports to be a copy of a letter from Ong & Co to Carroll's Real Estate Pty Limited dated 4 August 2004 which contains the direction that the balance from the proceeds should be payable to Ong & Co "as we have instruction from our client to credit into different accounts." It is alleged that the signature on that document is the signature of the Respondent.
"We just received it that way. I did not direct it - my staff did it."
30 It is further alleged that Mr Napper asked the Respondent certain questions about the alleged Vendor Duty liability of Mr Ong on 3 and 10 November 2004. In particular on 3 November 2004 it is alleged that Mr Napper asked the Respondent whether Vendor Duty had been paid at settlement and the Respondent replied in the affirmative. It is also alleged that on 10 November 2004 Mr Napper asked the Respondent for a receipt for the payment of the Vendor Duty and the Respondent replied:
"It was done at settlement - a cheque directed to them. I cannot find a receipt."
Later that day Mr Napper showed the Respondent the settlement directions sheet and indicated that as the Vendor Duty did not come out of the settlement amount it must have been paid out of the Respondent's account and the Respondent replied in the affirmative. Mr Napper then asked:
- "I will be able to see it when we get the office account bank statement?"
The Respondent replied in the affirmative.
31 The allegations and an account of the words spoken by the Respondent and Mr Napper are set out in Mr Napper's Affidavit sworn on 24 October 2006. Mr Napper also gave sworn evidence and was cross-examined as to the contents of his affidavit.
The alleged modus operandi of the Respondent
32 In essence then, the Law Society's case is that the Respondent, who did not keep a trust account, administered her office account in such a fashion that the alleged breaches of Sections 61 and 62 of the Legal Profession Act 1987 and misappropriations took place, that the breaches of Sections 61 and 62 were wilful, and further that Mr Napper was hindered, obstructed and delayed by the Respondent during the course of his responsibilities as a Trust Account Inspector, by virtue of the Respondent's untruthful, misleading and evasive answers to his questions.
The Respondent's case
33 The Respondent by her Amended Reply filed on 14 February 2007 denied the Particulars of the three complaints, and in paragraph 56 of her Affidavit sworn on 11 April 2007 asked that the Application be dismissed.
34 However, through her Counsel and under cross-examination the Respondent made certain admissions as to the complaints.
35 It is therefore necessary to examine the Respondent's case and her final position in respect of each of the three sets of allegations separately.
(a) The Respondent's case in relation to Mr Ong
36 In her Amended Reply, the Respondent denies that she wilfully breached Sections 61 and 62 of the Legal Profession Act 1987 in relation to Mr Ong's matter. In that Amended Reply she pleads that the sum of $630 was retained by her as a mistake and as a result of her subsequent mistakes. She says that when she became aware of the mistake prior to 2 December 2005 she was willing and able to repay the sum to the purchasers but did not do so on the advice of her legal representative at the time.
37 The Respondent's Amended Reply goes on to plead that the sum of $8,180.60 (apparently a reference to the $8,145.00 referred to in paragraph 10 above and said to be payable to the Office of State Revenue as Vendor Duty) was retained by the Respondent as the result of a mistake. It is said that this mistake was first made by the Respondent's conveyancing clerk in calculating the amounts of Vendor Duty, and then by subsequent mistake by the Respondent herself.
38 The Respondent again pleads that when she became aware of this mistake prior to 2 December 2005 she was willing and able to repay the sum to Mr Ong but, again, did not do so on the advice of her legal representative at the time.
39 However, through her Counsel and under cross-examination the Respondent made certain admissions in relation to her conduct of the matter for Mr Ong, and these are at variance with certain positions taken under her Amended Reply.
40 It was admitted by the Respondent's Counsel (Transcript 7 June 2007 lines 46 to 52) that the sum of $8,145.00 remained outstanding as not having been repaid to Mr Ong; and that admission was confirmed by the Respondent herself in cross-examination (Transcript 7 June 2007 page 32, lines 46 to 51).
41 Further, under cross-examination (Transcript 7 June 2007, page 43, lines 3 to 11) the Respondent admitted that her husband took money from the Ong & Co office account for the husband's money exchanging business and it was conceded that at the time the money belonged to the client, Mr Ong.
42 The Respondent under cross-examination also admitted misappropriation of the $50,000.00 cheque received on settlement, the relevant cross-examination (Transcript 7 June 2007, page 43, lines 35 to 50) being as follows:
- "Q. At settlement you also received another cheque for $50,000.00 to Ong?
A. Yes.
Q. With the cheque for $50,000 there was nothing to stop you doing with that cheque on 23 August what you did with the cheque for $68,550.33, was there?
A. That's correct.
Q. You could have put it with the $68,000.00 odd dollar cheque and banked it together on 23 August, couldn't you?
A. Yes.
Q. But what you did was you used that cheque for your own purposes, didn't you?
A. Yes."
43 In written Submissions lodged for the Respondent following the hearing it is contended that the Respondent made genuine mistakes in the handling of the monies being the proceeds of the transaction for Mr Ong.
44 Paragraphs 13 and 14 of those submissions are to the effect that the Respondent admits that she acted "imprudently" in the manner in which she conducted her bank account but that she did not have the requisite intention to wilfully deprive Mr Ong of the funds.
45 It is also contended in the Respondent's Submissions that whilst she should have supervised her paralegal more closely the failure to do so does not amount to wilful breach within the terms of Section 61 and 62.
(b) The Respondent's case in relation to Mr Lone and Mr Htein
46 In her Amended Reply, the Respondent denies any misappropriation of trust monies and apparently (although it is not completely clear from the form of pleading used whether the Respondent denies that she wilfully breached Section 61) that all sums were paid to or at the direction of Mr Htein.
47 However, as with the Ong complaint, the Respondent under cross-examination made certain admissions as to this complaint. For example, (Transcript 7 June 2007, page 34 line 25 to page 36 line 50), the Respondent replied to questions about the withdrawal of monies from her office account for use at Star City and at Westfield Parramatta. Her replies indicate that she acknowledged that the monies belonged to Mr Htein but that any breach of her obligations was "technical". After persistent cross-examination on this point, however, a clear acknowledgment of misappropriation by the Respondent emerges. The relevant passage (Transcript 7 June 2007, page 36, lines 10 to 50) is as follows:
- "Q. Apart from the withdrawals at Star City there was two withdrawals at Westfield Parramatta, one on 22 July of $2,000.00 and one on the next day, 23 July for $4,000.00. Do you agree with that?
A. Yes.
Q. And they were monies belonging to Mr Tien?
A. Yes.
Q. So on that analysis do you still say you didn't misappropriate monies belonging to Mr Tien in that period between 20 July when the deposit was made and 29 July?
A. (No verbal reply).
Q. Do you still say that those monies were not misappropriated?
A. Technically yes, misappropriated.
HER HONOUR: I think what she said is technically misappropriated.
Q. I'm not quite sure what you mean by technically, Mrs Ong. They either were or they weren't misappropriated.
A. Because… (not transcribable …) knows that I have only office account and they know I do this exchange business, even I send it to Singapore to them too, so.
Q. But don't you understand what your obligations are as a solicitor?
A. Yes, yes, yes.
Q. Whatever your clients might think.
A. Yes, my responsibility, I admit that, yes, yes, I misappropriated.
Q. Do you now agree that you misappropriated monies belonging to Mr Tien in that period?
A. Yes."
48 At a later stage of the cross examination (Transcript 7 June 2007, page 39, lines 11 to 21), the Respondent confirmed the admission that she misappropriated the monies of Mr Htein between 30 July and 2 August, and further that she misappropriated Mr Raymond Ong's money by way of the payment to Mr Htein (Transcript page 39 lines 45 to 53).
The Respondent's case in respect of breaches of Section 61
49 In her written Submissions lodged after the hearing the Respondent admits that she acted "imprudently" in the manner in which she conducted her bank account but says simply that:
- "All sums payable to Mr Htein pursuant to the conveyance have been paid."
50 Although the Respondent by her Amended Reply denies any wilful breach of Section 61 in respect of Mr Ong (and apparently also in respect of the Htein claim, although this is not clear as discussed at paragraph 46), the Respondent's Counsel in answer to questions by the Tribunal admitted such a breach. At page 7 of the Transcript for 7 June 2007, lines 21 to 30 and lines 50 to 56 the following is recorded:
- "HER HONOUR: Is that in dispute, Ms Winfield? That it's a breach of s61 to pay those monies into an office account as opposed to a trust account?
WINFIELD: No, it is not in dispute.
HER HONOUR: It's just it's important to know what is actually in dispute, and if that's not in dispute, that's a breach of s61. Alright, thank you …
HER HONOUR: Again, Ms Winfield I take it that it's not in dispute? It's monies which were clearly trust monies by their nature deposited into an office account.
WINFIELD: Yes.
HER HONOUR: So that's not in dispute thank you."
51 In her Amended Reply, the Respondent denies that she hindered, obstructed and delayed a Trust Account Inspector. The particulars of that denial set out in the Amended Reply state that the Respondent has no recollection of the specific conversations alleged by the Law Society and that there were many conversations with Mr Napper.
52 The Respondent's written Submissions submit that nothing in Mr Napper's evidence discloses any intention on the Respondent's part to hinder, obstruct or delay Mr Napper. It is also contended by the Respondent that the limited time taken to conclude the investigation is not indicative of hindrance, obstruction or delay, and it is submitted that this part of the claim is not made out.
The Tribunal's view of the Respondent's conduct
53 The evidence brought by the Law Society in the Tribunal's view clearly establishes a sustained practice by the Respondent, in her capacity as a Solicitor, which has led to misappropriation of clients' monies. The evidence reveals a course of conduct by the Respondent which falls substantially short of the degree of care, diligence and professionalism expected of any member of this profession.
54 The Respondent's conduct of her office account and related records, her disregard of the fundamental obligations of a Solicitor in respect of client moneys and her carelessness as to these matters were simply appalling.
55 The Respondent's evidence was highly unsatisfactory in this regard. It is apparent that the Respondent at best lacked proper understanding of her formal (or in her words "strict") obligations in respect of client monies. The Respondent also seems to have difficulty at least in relation to certain of the events related in the hearing, in appreciating what constitutes trust monies.
56 The procedures adopted in the Respondent's practice not only by her staff under her supervision but also by her personally, clearly demonstrate a standard of conduct which was extremely careless and indeed reckless as to these fundamental obligations.
57 The most startling example of this (but by no means the only one) is the Respondent's action in giving her husband access to the credit card linked to her office account, which he was then able to use at will, and which, the Tribunal accepts, resulted in the withdrawals from that account at Star City and Westfield in relation to Mr Htein's matter.
58 The Respondent's evidence, especially her evidence at the hearing as tested under cross-examination, was confused, unclear and unpersuasive. In the Tribunal's view the Respondent's evidence lacked credit.
59 In relation to the matters relating to Mr Ong and Mr Htein, the Tribunal prefers the evidence introduced by the Law Society, particularly the affidavit of Ms Sayer, to the evidence of the Respondent.
60 The Respondent's evidence at the hearing under cross-examination was in many instances at variance with the way her case had been pleaded in her Amended Reply. As discussed above in paragraphs 36 to 48 in many instances cross-examination was able to draw from the Respondent, admissions which were not made in the pleadings.
61 The Tribunal is of the view that the Respondent was not intending to be deliberately misleading or evasive in her answers under cross-examination, however when taken as a whole her evidence does indicate both a critical lack of understanding of the responsibilities of a solicitor in respect of the keeping of proper accounts and the treatment of client money, and carelessness and recklessness as to these matters.
62 In relation to the complaint relating to Mr Ong, the Tribunal finds the facts as set out in Part A of the Particulars forming part of the Law Society's Application made out.
63 The Tribunal does not accept that the Respondent made a genuine mistake as to whether funds had been paid to the Office of State Revenue.
64 It is noted that the Respondent admits that she acted "imprudently" in the matter but the Tribunal believes that her conduct was far more serious than that and involved a breach of Sections 61 and 62 of the Legal Profession Act 1987 and a misappropriation of trust monies.
65 In relation to the matter for Mr Lone and Mr Htein, it is no answer for the Respondent in her written Submissions to say that all sums payable to Mr Htein have now been paid. Again the Respondent in her written submissions admits that she acted "imprudently" in the matter and again the Tribunal finds that her conduct was far more serious and amounts to a breach of Sections 61 and 62 and a misappropriation of trust monies.
Were the breaches of Sections 61 and 62 wilful?
66 The Respondent in her written submissions relies on the case of Re Hodgekiss (1959) 62 SR (NSW) 340, in which the Full Court of the Supreme Court of New South Wales held that charges of professional misconduct were not established when deficiencies were caused by inadvertence or mistake on the part of the solicitor's staff, his partners and on some occasions himself and that that did not amount to a wilful breach within the meaning of the then equivalent to Sections 61 and 62.
67 However in that matter, Hardie J said (at page 353):
- "I am of the opinion that (the relevant sections) deal with personal breaches of the statutory provisions in question on occasions when the solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. It is thus essential in an enquiry as to whether or not there have been wilful breaches by a solicitor … to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the material dates."
68 Hardie J's remarks in Re Hodgekiss were followed in the New South Wales Court of Appeal in Leon Nikolaidis v Legal Services Commission [2007] NSWCA 130 (8 June 2007). The court in that matter also cited with approval discussion of the nature of wilful misconduct in the well known English case of In re City Equitable Fire Insurance Co Ltd [1925] Ch 407 where the phrase "wilful neglect or default" was held to require proof that the relevant person "knows he is committing and intends to commit a breach of his duty, or is recklessly careless in the sense of not caring whether his act or omission is or is not a breach of duty."
69 The Tribunal finds that the Respondent was, at best, recklessly careless in the sense of not caring whether her acts or omissions amounted to a breach of Sections 61 and 62.
70 Accordingly the Tribunal finds that grounds 1 and 2 of the Application are made out; that is that the Respondent wilfully breached Section 61 and 62 and that the Respondent misappropriated trust monies.
The Tribunal's findings as to the allegation that the Respondent hindered, obstructed and delayed a Trust Account Inspector
71 As indicated above, in respect of this charge the Law Society relied on evidence by Mr Napper the relevant Trust Account Inspector by way of his Affidavit sworn on 24 October 2006 and his verbal evidence.
72 The Tribunal accepts Mr Napper as a witness of credit. It accepts Mr Napper's account of his conversations with the Respondent and in the Tribunal's view Mr Napper's position was not shaken in cross-examination.
73 The Tribunal finds that the Respondent through the nature of her answers and responses to Mr Napper acted in a manner which caused hindrance, obstruction and delay to a Trust Account Inspector and accordingly Particular 3 of Professional Misconduct set out on the grounds of the Application is made out.
Professional Misconduct
74 Accordingly the Tribunal finds that the Respondent was guilty of professional misconduct as set out in the Application.
What Orders are appropriate?
75 In her written Submissions, the Respondent contends that the remedy sought by the Law Society, namely that the Respondent's name be removed from the Roll, is too severe in the circumstances of the case. The Respondent further contends that an appropriate remedy would be to have the Respondent work under supervision for a period of time.
76 The Law Society in its written Submissions filed on 4 April 2008 maintains that this is a matter in which the appropriate remedy is the striking off of the Respondent.
77 The Respondent through her Counsel relies on the fact that certain mistakes were made and there was inadvertence by members of the Respondent's staff, particularly in relation to the matter for Mr Ong. In some of her answers under cross-examination, the Respondent personally seemed to take the view that if there were any misappropriation by her it was "technical" in nature. As indicated above in paragraphs 55 and 62, much of the Respondent's evidence indicates a failure to appreciate the nature and extent of her responsibilities in dealing with trust monies.
78 In the case of Law Society of New South Wales v Moulton [1981] 2 NSWLR736 at 740-741, Hope JA said:
- "It is no answer to a charge of professional misconduct in relation to transactions with his clients' money that the solicitor did not appreciate that what he was doing constituted professional misconduct.
A failure to understand and appreciate the care that must be taken by a solicitor who wants to make use of his trusting client's money for his own purposes would generally show an unfitness to remain on the Roll."
79 In the case of Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, Mahoney JA at page 444 said:
- "The disciplinary jurisdiction remains one concerned with whether the solicitor is a fit and proper person to be held out by the Court as such.
In deciding whether a person is a fit and proper person for this purpose, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner or those aspects of it relevant to the office of a solicitor."
80 Mahoney JA in the Forman case continued at page 444:
- "It is also, I think, relevant for the Court to take into account the effect which its order will have upon the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors. The Court will no doubt, where appropriate, articulate the standards required and that they are high. However, the Court must, I think, also take into account the effect of what it has said of, for example, a decision to allow a solicitor guilty of a serious infringement of those standards, to continue to practise."
81 In Law Society of New South Wales v Jones (unreported 27 July 1978) CA (NSW), Street CJ said:
- "Reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor."
82 The Tribunal is influenced by these remarks in light of its findings as to the highly unsatisfactory nature of the Respondent's actions in respect of clients' monies.
83 The Tribunal cannot be satisfied that any order requiring the Respondent to work under supervision would be sufficient and effective to protect the public against the risk that the Respondent would re-offend. The Tribunal cannot be satisfied that the Respondent understands the "fundamental prerequisites" spoken of by Street CJ in the passage cited at paragraph 82 above. That being so, the Tribunal is not satisfied that the Respondent is a fit and proper person to be entrusted with the responsibilities of a solicitor.
84 Accordingly the Tribunal will order that the Respondent's name be removed from the Roll.
Other Orders
85 The Law Society in its written Submissions has indicated that it would consent to an Order for Costs in the assessed sum of $2,500.00.
86 There appear to be no further or ancillary orders which need to be made.
Orders
- i. The Tribunal orders that the Respondent's name be removed from the Roll
ii. The Tribunal orders that the Respondent pay the Law Society's costs of and incidental to these proceedings, in the sum of $2,500.00 within three months of the date of this judgment.
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