Law Society of NSW v Rickard

[2013] NSWADT 262

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Law Society of NSW v Rickard [2013] NSWADT 262

Hearing dates:

25 September 2013

Decision date:

25 September 2013

Jurisdiction:

Legal Services Division

Before:

G Mullane, Judicial Member
N Isenberg, Judicial Member
R Fitzgerald, Non-Judicial Member

Decision:

1. The Tribunal hereby prohibits any law practice from employing or paying the respondent Donna Louise Rickard in connection with the Legal Practice engaged in by the law practice without approval under section 17 of the Legal Profession Act 2004.

2.The respondent must pay the applicant $2,500.00 for its costs of and incidental to these proceedings.

Catchwords:

Lay associate to law practice - Fraudulent conduct - Order prohibiting any law practice from employing or paying.

Legislation Cited:

Legal Profession Act 2004

Category:

Principal judgment

Parties:

Law Society of NSW (Applicant)

Donna Louise Rickard (Respondent )

Representation:

Ms C Groenewegan for the Law Society of New South Wales (Applicant)
No appearance (Respondent)

File Number(s):

132007

reasons for decision

INTRODUCTION

1. The applicant in these proceedings is the Law Society of NSW and the respondent, who was from August 2008 until August 2011 a lay associate of the law practice trading as Paul Ward Harvey & Co in Sydney. The applicant seeks an order under s 18 of the Legal Profession Act 2004 prohibiting any law practice from employing or paying the respondent in connection with the legal practice engaged in by the law practice without approval under s 17 of the Act.

1. The applicant also seeks an order for the respondent to pay the applicant's costs of the proceedings.

NON-APPEARANCE

1. There has been no appearance this morning in the Tribunal by or on behalf of the respondent.

1. According to the evidence, which will be detailed later, the respondent was served personally at her home with the application on 9 July this year and since then has filed no appearance or reply to the application. Served with the application was a letter from the Law Society of 3 July 2013 and a copy of the affidavit of Anne-Marie Foord sworn 21 May 2013.

1. The matter was listed for directions on 7 August this year before Deputy President Justice Haylen. There was no appearance by or on behalf of the respondent and the proceedings were adjourned to 4 September to allow the respondent further time to file a reply and any affidavit. No documents were filed.

1. On 8 August the Law Society wrote to the respondent advising of what had transpired in the Tribunal on 7 August and also giving notice that the Law Society intended to apply on 4 September for the matter to be heard. The letter was served on the respondent by express post to the address at which she had been served with the application and also by sending the letter via email to her email address.

1. On 4 September there was no appearance by or on behalf of the respondent and the proceedings were then listed for hearing today.

1. The Law Society notified the respondent by letter of 4 September, which was served by express post and email. The registry also sent a letter of 5 September notifying the respondent's solicitors of the hearing being listed for today.

1. The Tribunal is satisfied the respondent has notice of the hearing today and is aware the hearing is proceeding. The Tribunal has concluded the respondent has decided not to participate in the proceedings and not to attend the hearing.

THE EVIDENCE

1. The evidence comprised the letter I referred to of 5 September from the registrar to the respondent's solicitors, the application filed on 24 May 2013, the affidavit of Ms Groenewegen of 4 September, the affidavit of Donna Louise Rickard and the affidavit of service of Christina Cook sworn on 10 July 2013.

FRAUDULENT CONDUCT

1. The respondent was employed by the legal practice as a parttime bookkeeper. Part of her duties was to make payments from the law practice office account and from the bank account of a service company of the law practice.

1. In the period from July 2009 to September 2011 inclusive, the respondent made unauthorised payments from those accounts to her own bank account.

1. She was convicted in October 2012 and December 2012 of offences in relation to those fraudulent payments. The convictions relate to payments totalling $62,155.26.

1. On the first conviction she was required to enter into a bond to be of good behaviour for five years and to pay compensation. On the second conviction she was sentenced to eighteen months imprisonment to be served by home detention and ordered to pay compensation. On the third conviction she was sentenced to eighteen months imprisonment to be served by home detention and ordered to pay compensation.

FINDINGS UNDER S 18 OF THE LEGAL PROFESSION ACT 2004

1. 15 Section 18 of the Act provides:

(1) This section applies to a person who is not an Australian legal practitioner and who is or was a lay associate of a law practice that:

(a) engages in legal practice principally in this jurisdiction, or

(b) employs or employed the person to work principally in this jurisdiction,

and so applies whether or not the law practice subsequently ceased to exist or engage in legal practice principally in this jurisdiction and whether or not any person ceases, by death or otherwise, to be a legal practitioner associate of the law practice.

(2) On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any law practice from employing or paying in connection with the legal practice engaged in by the law 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 that legal practice, or

(b) the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.

(3) An order under this section may apply to a specified law practice or specified class of law practices or may apply to law practices generally.

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

1. The Tribunal finds the respondent is not a fit and proper person to be employed or paid in connection with a legal practice.

1. The Tribunal is satisfied an order should be made under s 18 of the Legal Profession Act 2004 prohibiting law practices generally from employing or paying the respondent in connection with the legal practice of any law practice unless permission is granted under s 17.

COSTS

1. Section 20 of the legal profession act 2004 provides:

(1) The parties to an application to the Tribunal under this Division may be represented by an Australian legal practitioner at the hearing of the application.

(2) On making an order under this Division, or on determining an application for approval under section 17 (Associates who are disqualified or convicted persons), the Tribunal may make orders for costs.

(3) An order for costs:

(a) may be for a specified amount or an unspecified amount, and

(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and

(c) may specify the terms on which costs must be paid.

(4) A Council must:

(a) retain in its office a register of orders made under section 18 or 19 on its application or approvals given by it under section 17, and

(b) permit the register to be inspected during office hours and without charge, but only if the inspection is made by an Australian legal practitioner.

(5) In any proceedings under this Act, a document that purports:

(a) to be an order under section 18 or 19, and

(b) to be signed by the member constituting, or presiding at the sitting of, the Tribunal when the order was made,

is, without further proof, evidence of the order it purports to be.

1. We are satisfied, in view of the findings that are made in relation to the respondent's conduct and the fact she has not disputed any of the allegations made, the respondent should pay the applicant's costs of the proceedings.

ORDERS

1. The orders of the Tribunal therefore are:

1. The Tribunal hereby prohibits any law practice from employing or paying the respondent Donna Louise Rickard in connection with the legal practice engaged in by the law practice without approval under s 17 of the Legal Profession Act 2004.

2. The respondent must pay the applicant $2,500.00 for its costs of and incidental to these proceedings

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Decision last updated: 20 November 2013