Law Society of New South Wales v Player
[2007] NSWADT 191
•22 August 2007
CITATION: Law Society of New South Wales v Player [2007] NSWADT 191 DIVISION: Legal Services Division PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
Ian Alexander PlayerFILE NUMBER: 072006 HEARING DATES: 28 June 2007 SUBMISSIONS CLOSED: 28 June 2007
DATE OF DECISION:
22 August 2007BEFORE: Chesterman M - ADCJ (Deputy President); Brennan JWF - Judicial Member; Dyster B - Non Judicial Member CATCHWORDS: Solicitor – Disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
New South Wales Bar Association v Cummins [2001] NSWCA 284REPRESENTATION: APPLICANT
RESPONDENT
P Boyd, solicitor
In personORDERS: 1. The name of the Respondent is to be removed from the local roll.; 2. The Respondent is to pay the Applicant’s costs of and incidental to these proceedings, as agreed or assessed.
Introduction
1 In this case, the Applicant, the Law Society of New South Wales (‘the Solicitor’) filed on 15 February 2007 a Disciplinary Application under s. 551 of the Legal Profession Act 2004 (‘the LP Act’), alleging that the Respondent solicitor, Mr Ian Player (‘the Solicitor’) was guilty of professional misconduct on six grounds.
2 These grounds, as set out in the Application, were as follows:-
- 1. The Solicitor wilfully breached Section 61 of the Legal Profession Act 1987.
2. The Solicitor misappropriated moneys.
3. The Solicitor practised as a solicitor after his practising certificate was cancelled.
4. The Solicitor engaged in unethical conduct in that he:-
- (a) omitted from returns lodged with the Office of State Revue notifications of stamp duty payable:
(b) falsely stamped documents with a stamp provided by the Office of State Revenue;
(c) falsely inserted transaction numbers on documents;
(d) placed false letters, facsimiles, file notes and other documents in a file;
(e) issued a Bill of Costs for work not performed.
6. The Solicitor mislead (sic) a client.
3 In accompanying Particulars, the Application outlined nine transactions, occurring between December 2002 and July 2005, in the course of which the Solicitor allegedly engaged in the conduct on which the Application is based. In the Particulars, these transactions were headed with the letters A to I. We will also identify them by reference to these letters. Relevant aspects of them are set out below.
4 The orders sought in the Application were an order that the Solicitor’s name be removed from the Roll, an order for costs and such other order as the Tribunal thought fit.
5 In an affidavit sworn on 15 February 2007 on behalf of the Law Society, Mr Raymond Collins stated that the Solicitor was admitted as a solicitor of the Supreme Court on 22 December 1983 and held a practising certificate until 30 June 1986. On 9 March 1987, he renewed his practising certificate, which he held on an annual basis until the Law Society resolved on 7 July 2005 to reject his application for renewal.
6 Mr Collins’ affidavit also indicated that the Law Society made a complaint against the Solicitor on 24 January 2006. Following investigation by solicitors in the employ of the Law Society, the Law Society’s Professional Conduct Committee, pursuant to its delegated power, resolved on 23 November 2006 to institute these proceedings in the Tribunal.
7 In his Reply, filed on 9 May 2007, the Solicitor admitted Grounds 1, 4, 5 and 6 of the Application. He did not admit Ground 2 and he denied Ground 3, providing Particulars in support of this denial. At the hearing, he maintained this position with regard to each of the six Grounds.
8 The evidence principally relied on by the Law Society was an affidavit sworn on 19 February 2007 by Ms Jean Sayer, a Chartered Accountant. By an order of the Supreme Court made on 7 July 2005 on the application of the Law Society, Ms Sayer was appointed as Receiver of the trust property of the Solicitor. Three reports that she prepared with reference to this property, dated respectively 19 October 2005, 9 November 2005 and 9 January 2006, were annexed to her affidavit.
9 The Solicitor filed no evidence and did not seek to cross-examine either of the Law Society’s witnesses.
10 The alleged conduct of the Solicitor on which the Law Society based its case occurred before the date of commencement of the LP Act. But because the relevant complaints were made and these proceedings were instituted after that date, the matter falls to be determined wholly under the LP Act, subject only to the condition that no order may be made that is ‘more onerous’ than could have been made under the Legal Profession Act 1987: see LP Act, Schedule 9, clause 17.
The transactions involving stamp duty
11 Amongst the nine transactions outlined in the Particulars to the Application, seven – namely, Transactions A, B, C, D, E, G and H – share an important common feature. This is that in all of them the Solicitor placed stamps on conveyancing documents, using a stamping machine provided to him by the Office of State Revenue for the purpose of ‘self stamping’, but did not include the amounts of stamp duty or vendor duty payable in his monthly notifications to the Office of State Revenue. In each of these transactions except for Transaction H, he placed on one or more of the relevant documents a transaction number that resembled one of the seven-digit numbers that had been allocated to him for the relevant monthly period, but was not identical to any one of these numbers. He would, for instance, transpose the last two digits of one of the numbers allocated to him. In Transaction H, he did not place any transaction number on the document.
12 Through misusing in this way the stamping machine that had been provided to him, the Solicitor managed to conceal from relevant parties, including his clients and the Office of State Revenue, the fact that funds supplied to him in order to pay the stamp duty or vendor duty owing on the relevant documents were not applied for this purpose but were instead paid to or for the benefit of the Solicitor himself.
13 The Application alleged that in the course of each of these seven transactions, the Solicitor engaged in unethical conduct falling within Ground 4(a), Ground 4 (b) and, save in the case of Transaction H, Ground 4(c).
14 In relation to all of the seven transactions except Transaction C, the Application alleged also that the Solicitor committed a wilful breach of s. 61 of the Legal Profession Act 1987 (Ground 1) and that he engaged in misappropriation (Ground 2).
15 In view of the admissions made by the Solicitor, it is sufficient for present purposes to quote in full the description given in the Particulars of the steps taken by the Solicitor in one of these seven transactions – namely, Transaction B – then to indicate briefly the ways in which each of the other six transactions differed materially from Transaction B.
16 Transaction B. In Transaction B, the Solicitor acted on behalf of Renee Emma Gould and Scott Richard Gould in the sale of a property, in the purchase of another property and in obtaining finance from a bank on the security of a mortgage. The relevant events occurred between 3 February and 17 March 2005.
17 In the Particulars, Transaction B was described in the following way:-
- B. Renee Emma Gould and Scott Richard Gould
1. The Solicitor acted for Mr & Mrs Gould on the purchase of 43 George Street, Holmesville and the sale of 110 Montgomery Street, Argenton, together with a mortgage to St George Bank.
2. Stamp duty payable on the contract and Transfer was $8,992.00 to be paid on settlement and from the proceeds of the mortgage.
3. The Solicitor forwarded to the St George Bank a Solicitor’s undertaking as to settlement [dated 23 February 2005].
4. The undertaking included the following:-
- “(c) To use such moneys for none other than the stated purpose of the loan.”
6. The Solicitor stamped the Transfer with a false transaction number.
7. The Solicitor did not stamp the contract.
8. The Solicitor did not remit the moneys paid to him for payment of the stamp duty to the Office of State Revenue.
9. On 10 March 2005 a bank cheque for $6,675.00, representing part moneys received for the payment of stamp duty, was deposited by the Solicitor to his general account. The balance of $2,309.00 [of the $8,992.00] received for stamp duty was deposited on 10 March 2005 to the National Australia Bank account of the Solicitor and a Ms S G Cassidy.
10. The Solicitor has misappropriated the sum of $8,992.00.
18 By virtue of these events, the Application alleged that in Transaction B the Solicitor engaged in conduct falling within Grounds 1, 2, 4(a), 4(b) and 4(c).
19 Transaction A. In Transaction A, the Solicitor acted on behalf of Peter James Ralph and Helen Lesley Ralph in the purchase of a property and in obtaining finance from a building society on the security of a mortgage. He also acted for the building society. The relevant events occurred between 15 February and 24 June 2005. The amount that the building society made available for the payment of stamp duty was $13,508.00. The Solicitor paid this amount into a bank account in his own name.
20 This transaction differed from Transaction B in one important respect. This was that some of the copies of correspondence found by Ms Sayer in the Solicitor’s file did not match the correspondence received by the relevant parties or was not replicated at all in the correspondence that they received from him. In particular, the file copy of a cheque request drawing authority purportedly sent by the Solicitor to the mortgagee showed the payee as the Office of State Revenue, whereas in the document actually sent to the payee was shown as the Solicitor himself.
21 By virtue of this additional element, the Application alleged that in Transaction A the Solicitor engaged not only in conduct falling within Grounds 1, 2, 4(a), 4(b) and 4(c), but also in conduct falling within Ground 4 (d).
22 Transaction C. In Transaction C, the Solicitor acted on behalf of himself and Susan Gail Cassidy in the purchase of a property. In a letter dated 1 July 2005 to a trust account inspector employed by the Law Society, he described Ms Cassidy as his current de facto partner and added that she was unaware of the steps taken by him in any of the transactions involved in these proceedings. The relevant events in Transaction C occurred between 12 March and 23 April 2004. The stamp duty payable, but which the Solicitor did not pay, was $17.094.00
23 This transaction differed from Transaction B in a number of important respects. In this instance, the Solicitor used the device of stamping the contract and the transfer with a false transaction number solely in order to avoid paying the stamp duty. He did not receive any funds from a client, or from a lender to a client, that were earmarked for this purpose.
24 By virtue of these events, the Application alleged that in Transaction C the Solicitor engaged in conduct falling within Grounds 4(a), 4(b) and 4(c). There was no allegation of conduct within Ground 1 or Ground 2.
25 Transaction D. In Transaction D, the Solicitor acted on behalf of Benjamin Joseph Farthing and Denise Margaret Farthing in the purchase of a property and in obtaining finance from a bank on the security of a mortgage. The relevant events occurred between 23 April and 28 May 2004. The amount that the bank made available for the payment of stamp duty in the form of a cheque made payable to the Office of State Revenue, but which was not paid to this Office, was $9,669.00.
26 This transaction differed materially from Transaction B in two respects: (a) the correspondence did not include any express undertaking by the Solicitor to use the funds that were made available for stamp duty for this specific purpose; and (b) there is no evidence as to how the Solicitor disposed of these funds.
27 By virtue of these events, the Application alleged that in Transaction D the Solicitor engaged in conduct falling within Grounds 1, 2, 4(a), 4(b) and 4(c).
28 Transaction E. In Transaction E, the Solicitor acted on behalf of Paul George Anthony De Bono and Barbara Lee De Bono in the purchase of a property and in obtaining finance from a bank on the security of a mortgage. The relevant events occurred between 2 November and 17 December 2004. The amount that the bank made available for the payment of stamp duty was $6,717.00. The Solicitor paid this amount to a firm of solicitors in discharge of costs owed by him on a family law settlement.
29 This transaction differed materially from Transaction B in so far as the correspondence did not include any express undertaking by the Solicitor to use the funds that were made available for stamp duty for this specific purpose.
30 By virtue of these events, the Application alleged that in Transaction E the Solicitor engaged in conduct falling within Grounds 1, 2, 4(a), 4(b) and 4(c).
31 Transaction G. In Transaction G, the Solicitor acted on behalf of Julie Talevski, Lina Bozinovska, Karol Bozinovska and Michelle Bozinovska in the sale of an investment property. The relevant events occurred between 3 September and 29 October 2004. Vendor duty in the amount of $5,557 was payable. The Solicitor, having advised his clients to this effect, received from the purchaser a cheque for this amount drawn in favour of the Office of State Revenue, but deposited it into a bank account in his own name and that of Ms Cassidy.
32 This transaction differed materially from Transaction B in so far as the correspondence did not include any express undertaking by the Solicitor to use the funds that he would receive on account of vendor duty for this specific purpose.
33 By virtue of these events, the Application alleged that in Transaction G the Solicitor engaged in conduct falling within Grounds 1, 2, 4(a), 4(b) and 4(c).
34 Transaction H. In Transaction H, the Solicitor acted on behalf of Jun Niu and Jian Ping Wang in the sale of an investment property. The relevant events occurred in or about November 2004. The vendors advised him that vendor duty in the amount of $14,535.00 was payable. The Solicitor received from the purchasers two cheques, in the amounts of $14,000 and $535 respectively, drawn in favour of the Office of State Revenue. He did not send these cheques, or the amount of vendor duty payable, to this Office.
35 This transaction differed materially from Transaction B in three respects: (a) the Solicitor did not add any transaction number to the stamp that he placed on the instrument of transfer; (b) the correspondence did not include any express undertaking by the Solicitor to use the funds that he would receive on account of vendor duty for this specific purpose; and (c) there is no evidence as to how the Solicitor disposed of these funds.
36 By virtue of these events, the Application alleged that in Transaction H the Solicitor engaged in conduct falling within Grounds 1, 2, 4(a) and 4(b) (but not 4(c)).
37 Conclusions regarding these seven transactions. In these transactions, the total amount of stamp or vendor duty that the Solicitor, by his own admission, failed to remit to the Office of State Revenue was $76,068.50.
38 The Solicitor did not admit Ground 2, which is that he ‘misappropriated moneys’. The Law Society did not allege any misappropriation on his part in Transaction C, but alleged misappropriation in each of the remaining six transactions.
39 As indicated above, there was no evidence before us showing how the Solicitor disposed of the amounts of stamp duty or vendor duty involved in Transactions D and H. In the other four transactions (A, B, E and G), there is undisputed evidence that the Solicitor applied the amounts of stamp duty or vendor duty involved for his own benefit. The total of these amounts was $34,774.50.
40 In our opinion, the Law Society’s allegation of misappropriation by the Solicitor is however sufficiently made out by proof that he did not send to the Office of State Revenue the moneys that expressly or by implication were made available to him solely for the payment of stamp duty or vendor duty on behalf of his clients. This matter is established in relation to all of the six transactions in respect of which the Application alleges misappropriation. The total amount of stamp duty or vendor duty involved in these six transactions was $58,978.50.
41 The Solicitor admitted liability under all the other Grounds advanced by the Law Society with respect to these seven transactions (A, B, C, D, E, G and H).
42 Our conclusion, having regard to these admissions and to the evidence contained in Ms Sayer’s report, is that the Law Society has established Grounds 1, 2, 4(a), 4(b), 4(c) and 4(d) as particularised in the Application.
The Solicitor’s dealings with Mr Wray
43 The matters alleged by the Law Society. In the Particulars to the Application, the Solicitor’s conduct in Transaction F, involving a client called Geoffrey William Wray, was put forward in support of Ground 3 (practising as a solicitor after his practising certificate had been cancelled) and Ground 6 (misleading a client) in the Application.
44 According to these Particulars, the Solicitor acted on behalf of Mr Wray in Supreme Court proceedings instituted by Mr Wray’s sister. These proceedings related to two properties that were registered in their names as joint tenants. During June 2005, they were settled on terms that Mr Wray should pay to Ms Wray the sum of $650,000 in consideration for her transferring to him her interest in the properties.
45 The Solicitor also acted for Mr Wray in obtaining mortgages on these properties to secure loans from two lenders totalling $900,000.
46 As mentioned above, the Solicitor held a practising certificate, except for a period of about nine months, from the date of his admission in 1983 until 7 July 2005. On that date, the Law Society resolved to reject his application for renewal of his certificate. He received notification of this rejection on 11 July 2005
47 On 11 July 2005 the Solicitor sent a letter to Mr Wray. The letterhead used was not the letterhead of his firm and it displayed a different address. The letter commenced as follows:-
- I write to confirm, firstly, that I have not renewed my Solicitor’s Practising Certificate. At this date, I am no longer a Solicitor, nor do I hold myself out as one.
Nevertheless, I wish to assist you in finalisation of the above proceedings and am able to do so in the general capacity of your support person.
48 The letter then advised that settlement of the Supreme Court proceedings was to take place at the Law Society’s offices on 15 July 2005 and that the Solicitor would be asking Mr Wray to sign the deed of settlement on that day. It was accompanied by a settlement statement showing how the funds lent to Mr Wray would be applied on the settlement, and by an invoice, dated 23 June 2005, for the costs payable by Mr Wray in relation to this matter.
49 Ms Sayer found in the Solicitor’s file a copy of Short Minutes of Order in the Supreme Court proceedings, dated 15 July 2005. They were signed by Mr Wray and by the solicitor representing Ms Wray.
50 In accordance with the settlement statement, on the same day, the Solicitor received a total sum of $52,282.57 on account of costs, paid from the funds provided by the lenders to Mr Wray.
51 Also on 15 July 2005, the Solicitor deposited this sum in a bank account in the name of himself and Ms Cassidy.
52 According to the Particulars, the Solicitor, in calculating the costs due to him from Mr Wray, failed to take into account a payment of $19,525 that Mr Wray had previously made.
53 The Law Society’s submissions. Mr Boyd, who appeared for the Law Society in these proceedings, argued with regard to Ground 3 that the Solicitor practised as a solicitor without holding a practising certificate when he did the following things: (a) writing the letter dated 11 July 2005; (b) obtaining Mr Wray’s signature to the deed of settlement at some time between 11 and 15 July 2005; (c) attending the settlement on 15 July 2005, or instructing someone else to do so; and (d) at the settlement, receiving the cheque for $52,282.57 on account of costs.
54 Relying on matters contained in Ms Sayer’s report but not set out in the Particulars, Mr Boyd argued also that the Solicitor practised as a solicitor without holding a practising certificate when he briefed a barrister, Ms Jodi Steele, to appear at the Supreme Court on 15 July 2005. Mr Boyd acknowledged, however, that Ms Sayer made no finding as to when the Solicitor sent the brief to Ms Steele.
55 In relation to Ground 6, Mr Boyd argued that the Solicitor misled Mr Wray through stating falsely in the letter of 11 July 2005 that the reason why he was ‘no longer a Solicitor’ was that he had not renewed his practising certificate. He thereby concealed from Mr Wray the true reason, which was that the Law Society had rejected his application for renewal.
56 As we understood Mr Boyd’s submissions, he did not claim that the Solicitor’s failure to take Mr Wray’s payment of $19,525 into account fell within Ground 6.
57 Mr Boyd also referred to other matters outlined in Ms Sayer’s report: notably, that in the Short Minutes of Order filed in the Supreme Court identified Mr Wray’s solicitors as a firm in which the Solicitor’s brother was a partner and gave false contact details for this firm. These matters were not, however, set out in the Particulars.
58 The Solicitor’s submissions. While admitting Ground 6, the Solicitor denied Ground 3. In a very brief submission to us, he stated that in relation to the latter Ground, he maintained the position set out in his Reply.
59 In the Reply, he referred to the following aspects of his conduct: (a) he disclosed to Mr Wray that he was not acting as a solicitor; (b) he ‘desisted from using any letterhead which may have intimated any such capacity’; and (c) he did not sign, or purport to sign, any document in the capacity of a solicitor.
60 Our conclusions. With regard to Ground 6 (which the Solicitor admitted), we accept Mr Boyd’s submission that the Solicitor, in his letter of 11 July 2005, materially misled Mr Wray, by whom he had been retained, in knowingly giving a false reason for his no longer holding a practising certificate.
61 With regard to Ground 3, we point out initially that it is not open to the Law Society to rely on evidence in Ms Sayer’s report suggesting that the Solicitor briefed a barrister at a time when he no longer held a practising certificate or that in the Short Minutes of Order he gave misleading information regarding the solicitors representing Mr Wray. The reason is that these allegations did not form part of the Particulars.
62 Neither party addressed us at length on the matter of principle raised by the Solicitor’s Reply on Ground 3. This is whether after notifying Mr Wray in the terms set out above at [47], the Solicitor, in taking the steps described at [53], could be held to have ‘practised as a solicitor’.
63 This question is not straightforward. In the absence of detailed argument, we will not rule upon it. Our principal reason is that our ruling, whichever way it went, would not affect the orders that we are, in our opinion, bound to make in this case by virtue of our conclusions on the five other Grounds alleged in the Application.
64 For the foregoing reasons, we uphold Ground 6 of the Application, to the extent that it is claimed against the Solicitor with respect to Transaction F. We make no finding in relation to Ground 3.
The Solicitor’s conduct when acting for Quiltax Pty Ltd
65 In the Particulars to the Application, the Solicitor’s conduct in Transaction I, involving a client called Quiltax Pty Ltd (‘Quiltax’), was put forward in support of Ground 4(e) (issuing a bill of costs for work not performed) and Ground 6 (misleading a client) in the Application.
66 According to these Particulars, the Solicitor acted on behalf of Quiltax in instituting Local Court proceedings against Paul Thomas Gray and Carole Ann Gray for the recovery of $15,801.08 on account of unpaid rent. The Solicitor issued a statement of claim on 23 December 2002. He arranged for agents to appear for Quiltax at call-overs on 5 June, 3 July and 31 July 2003.
67 He then failed, however, to comply, or to ensure compliance, with the following orders and directions made by the Court: (a) to file and serve a statement by 28 August 2003; (b) to appear at a pre-trial conference on 4 September 2003; (c) to file and serve the required statement by 18 September 2003; and (d) to appear at an adjourned hearing on 25 September 2003.
68 On this last date, the Court ordered the matter to be struck out with costs to be paid by Quiltax.
69 The solicitors representing Ms Gray, one of the defendants, wrote to the Solicitor, conveying offers of settlement, on 7 July 2003 (offering $2,000) and 8 August 2003 (offering $3,000). The Solicitor did not reply to either letter. His only communication with these solicitors was a letter dated 15 August 2003 stating that Quiltax was prepared to accept an offer of $10,000.
70 On 16 October and again on 4 November 2003, Quiltax wrote to the Solicitor enquiring as to the status of the matter. The Solicitor did not reply to either letter.
71 On 24 March 2004, the Solicitor wrote to Quiltax advising that he had received an offer to settle the matter for $7,500 and asking for confirmation of Quiltax’s acceptance. He enclosed a document that he described as his ‘final tax invoice’, claiming a total amount of $1,864.50. This included profit costs of $1,500 plus GST for services which he described as follows:-
- To my professional fees of and incidental to instructions for the period commencing 1/3/2002 to date, and including further anticipated attendances on preparing, filing and engrossing Terms of Settlement; and including numerous Court attendances in the intervening period; all necessary and incidental correspondence; Court pleadings, telephone attendance; attendance on negotiations.
72 On 12 May 2004, the Solicitor wrote to Quiltax enclosing a cheque for $5,635.50 drawn on his general account. He described this amount as representing the agreed settlement sum of $7,500 less the amount of $1,864.50 claimed in his tax invoice.
73 There had in fact been no offer by the defendants to settle for $7,500 and they had not paid any money to the Solicitor. Furthermore, the Solicitor was never involved in ‘preparing, filing and engrossing Terms of Settlement’ or in ‘numerous Court attendances’ as claimed in his tax invoice.
74 In his Reply, the Solicitor admitted liability under the two Grounds to which these Particulars relate.
75 Our conclusion, having regard to these admissions and to the evidence contained in Ms Sayer’s report, is that the Law Society has established Ground 4(e) of the Application, and has also established Ground 6, to the extent that it is claimed against the Solicitor with respect to Transaction I.
The claim of professional misconduct
76 As formulated, Ground 1 claimed that the Solicitor ‘wilfully breached Section 61 of the Legal Profession Act 1987’. But since these proceedings are to be determined wholly under the LP Act, subject only to one qualification (see [10]), the provisions directly applying are those within the LP Act that correspond to the relevant parts of s. 61. These provisions are ss. 225 and 227. Under s. 498(1), a breach of either provision is ‘capable of being unsatisfactory professional conduct or professional misconduct’.
77 Mr Boyd argued that in any event the conduct alleged against the Solicitor (and in large measure admitted by him) amounted to professional misconduct at common law, falling within the accepted definition in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761. It was, he said, conduct that ‘would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’.
78 The Solicitor’s brief submissions did not specifically address this part of the case.
79 We accept the Law Society’s contention that the Solicitor’s conduct as established under five of the six grounds alleged – i.e., all of them except Ground 3 – clearly amounted to professional misconduct. It manifested a recurring determination on his part, over the period of two years between mid-2003 and mid-2005, to deceive his clients and/or the Office of State Revenue. Except in two of the nine transactions involved (Transactions F and I) his principal motivation was to obtain pecuniary benefits for himself. The scale of these benefits was substantial. For these reasons, the criterion stated in Allison is, in our opinion, indubitably satisfied.
The orders that we should make
80 It is well recognised that the test for determining whether the name of a legal practitioner should be removed from the Roll following a finding of professional misconduct is whether the practitioner, at the time when this question must be resolved, is a fit and proper person to remain on the Roll.
81 In his oral submissions to us, the Solicitor drew our attention to steps that he had taken by way of repayment of money owed for stamp duty or vendor duty. The Particulars outlining Transaction A in fact referred to his having paid the amount due to the Office of State Revenue ($13,508) in June 2005, after this Office had detected the prior non-payment of duty. At the hearing, the Solicitor tendered documents showing that in settlement of proceedings brought against him by this Office in 2006 to recover the remaining duty payable, together with penalties, he had paid the further sum of $27.739.79.
82 The Solicitor also submitted that he had done his best to facilitate the proceedings instituted against him by the Law Society.
83 In view of these matters, the Solicitor invited us to consider whether a period of suspension from practice, instead of removal from the Roll, might be the appropriate order for us to make.
84 Mr Boyd pointed out, however, that when in mid-2005 a trust account inspector employed by the Law Society raised questions with the Solicitor regarding some of the seven transactions that involved non-payment of stamp duty, the Solicitor made some admissions (in a letter dated 1 July 2005 to the inspector) regarding four such transactions (A, B, C and E), but failed to mention the other three. Furthermore, during the investigation by Ms Sayer, he told her that all the papers remaining in his firm’s office premises were personal papers when this was not the case. As stated in her second report, she only discovered that files relating to former clients were also in these premises when the landlord told her this. Among the files that she then examined were the files relating to the two transactions (G and H) in which the Solicitor withheld payment of vendor duty.
85 In view of this behaviour by the Solicitor, we cannot accept his assertion that he fully co-operated with the Law Society. We note also that he did not tender any testimonials from former clients or fellow-practitioners.
86 Having regard to these matters, there is in our judgment no reason to believe that the deficiencies in honesty and integrity displayed by the Solicitor in a number of different transactions spanning a period of two years have been remedied to any significant extent. Accordingly, he ‘must be regarded, at the present time, as permanently unfit to practise’ (to quote the test formulated by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 at [26]).
87 It follows that our principal order in these proceedings must be that the name of the Solicitor be removed from the local roll, pursuant to s. 562(2)(a) of the LP Act.
88 The Law Society applied for the costs of these proceedings. Under s. 566(1) of the LP Act, the Tribunal must make a costs order against a legal practitioner whom it has found to have engaged in professional misconduct, unless it is satisfied that exceptional circumstances exist.
89 There being no grounds for a finding of exceptional circumstances, we order that the Solicitor pay the Law Society’s costs as agreed or assessed.
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