Law Society of the Australian Capital Territory v Slater
[2015] ACTSCFC 2
•3 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | Law Society of the Australian Capital Territory v Slater |
Citation: | [2015] ACTSCFC 2 |
Hearing Date(s): | 3 August 2015 |
DecisionDate: | 3 August 2015 |
Before: | Penfold, Burns and North JJ |
Decision: | The defendant’s name is removed from the roll of legal practitioners. |
Category: | Principal Judgment |
Catchwords: | PROFESSIONAL MISCONDUCT – Lawyers – removal from the roll – necessity of the Court to record findings even where removal is by consent. |
Legislation Cited: | Legal Profession Act 2006 (ACT) ss 27, 234, 431 (3) |
Cases Cited: | Law Society of the Australian Capital Territory v Burns [2012] ACTSC 91 |
Parties: | Law Society of the Australian Capital Territory (Plaintiff) Mark Andrew Slater (Defendant) |
Representation: | Counsel Mr M Phelps (Plaintiff) Mr C Lynch (Defendant) |
| Solicitors Phelps Reid Lawyers (Plaintiff) Sharman Lynch Solicitors (Defendant) | |
File Number(s): | SC 62 of 2015 |
THE COURT:
On 3 August 2015, we ordered that the name Mark Andrew Slater be removed from the roll of people admitted to the legal profession maintained by this Court pursuant to s 27 of the Legal Profession Act 2006 (ACT), and indicated that our reasons would be delivered at a later date. These are those reasons.
The present proceedings were commenced by way of originating application seeking orders that, pursuant to s 431 (3) of the Legal Profession Act, the defendant’s name be removed from the roll of legal practitioners on the grounds that an order had been made by the ACT Civil and Administrative Tribunal (the ACAT) recommending that his name be removed from the roll of legal practitioners.
The ACAT proceedings
Between November 2009 and June 2014, the defendant was the principal solicitor of the law practice Mark Slater Family Law. The law practice held a trust account holding monies on behalf of clients. The defendant was the authorised person to sign cheques and withdraw monies from the trust account.
In April 2014, the defendant made a voluntary disclosure to the Law Society of the ACT regarding improper use of trust funds. On 28 April 2014, the Law Society appointed Mr Adrian Bray, an accountant, to investigate the defendant’s firm’s trust account pursuant to s 234 of the Legal Profession Act. Based upon a report prepared by Mr Bray dated 20 June 2014 (the Bray Report), the Law Society commenced proceedings in the ACAT by an application dated 24 July 2014 seeking declarations that the defendant had been guilty of professional misconduct. The grounds of the application before the ACAT were:
Ground 1: In breach of Section 223(1) of the Act, the Respondent failed to hold trust money in the trust account of the firm exclusively for the person on whose behalf that money was received and disbursed that money without the authority or direction of that person
Particulars
1.1On 13 February 2014, the Respondent, following a trust receipt of the sum of $5,000.00 on 12 February 2014 transferred an amount of $4,950.00 from his trust account to his office account without the authority of his client, [DP], as particularised at Appendix 1 of the Bray Report.
1.2On 12 June 2013 and 25 July 2013, the Respondent, following a trust receipt of the sums of $3,850.00 and $20,000.00 on 4 June 2013 and 24 July 2013 respectively, transferred the same amounts from his trust account to his office account without the authority of his client, [KG], as particularised at Appendix 2 of the Bray Report.
1.3On 7 February 2014, the Respondent, following a trust receipt of the sum of $1,320.00 on 4 February 2014, transferred the same amount from his trust account to his office account without the authority of his client, [KC], as particularised at Appendix 3 of the Bray Report.
1.4On 7 February 2014, the Respondent, following a trust receipt of the sum of $2,200.00 on 4 February 2014, transferred the same amount from his trust account to his office account without the authority of his client, [SH], as particularised at Appendix 4 of the Bray Report.
1.5On 16 January 2014, the Respondent, following a trust receipt of the sum of $4,950.00 on 13 January 2014, transferred the same amount from his trust account to his office account without the authority of his client, [BU], as particularised at Appendix 5 of the Bray Report.
1.6On 28 February 2014, the Respondent, following a trust receipt of the sum of $2,200.00 on 27 February 2014, transferred the same amount from his trust account to his office account without the authority of his client, [YS], as particularised at Appendix 6 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $1,092.00.
1.7On 1 May 2013, the Respondent, following a trust receipt of the sum of $2,900.00 on 29 April 2013, transferred an amount of $2,887.50 from his trust account to his office account without the authority of his client, [WS], as particularised at Appendix 7 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $508.00.
1.8On 22 August 2013, the Respondent, following a trust receipt of the sum of $6,600.00 on 19 August 2013, transferred the same amount from his trust account to his office account without the authority of his client, [TU], as particularised at Appendix 8 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $4,136.00.
1.9On 4 October 2013, the Respondent, following a trust receipt of the sum of $2,200.00 on 27 September 2013, transferred the same amount from his trust account to his office account without the authority of his client, [NI], as particularised at Appendix 9 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $1,474.00.
1.10On 31 October 2013, the Respondent, following a trust receipt of the sum of $2,200.00 on 30 October 2013, transferred the amount of $1,815.00 from his trust account to his office account without the authority of his client, [LQ], as particularised at Appendix 10 of the Bray report.
1.11On 27 February 2014, the Respondent, following a trust receipt of the sum of $4,180.00 on 21 February 2014, transferred the amount of $3,051.40 from his trust account to his office account without the authority of his client, [NM], as particularised at Appendix 11 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $2,717.00.
1.12.1On 3 October 2013, the Respondent, following a trust receipt of the sum of $4,400.00 on 2 October 2013, transferred the same amount from his account to his office account without the authority of his client, [KB], as particularised at Appendix 12 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $2,033.00.
1.12.2On 28 November 2013, the Respondent, following a trust receipt of the sum of $4,400.00 on 20 November 2013, transferred the same amount from his trust account to his office account without the authority of his client, [KB], as particularised at Appendix 12 of the Bray report and, in circumstances where this amount exceeded his legal costs to that date by $2,068.00.
1.13On 16 July 2013, the Respondent, following a trust receipt of the sum of $2,200.00 on 11 July 2013, transferred the same amount from his trust account to his office account without the authority of his client, [BN], as particularised at Appendix 13 of the Bray Report.
1.14On 19 September 2013, the Respondent, following a trust receipt of the sum of $1,320.00 on 16 September 2013, transferred the same amount from his trust account to his office account without the authority of his client, [OT], as particularised at Appendix 14 of the Bray Report.
1.15On 27 February 2014, the Respondent, following a trust receipt of the sum of $1,760.00 on 25 February 2014, transferred the same amount form his trust account to his office account without the authority of his client, [QH], as particularised at Appendix 16 of the Bray Report.
1.16On 28 November 2013, the Respondent, following a trust receipt of the sum of $2,200.00 on 25 November 2013, transferred the same amount from his trust account to his office account without the authority of his client, [CN], as particularised at Appendix 17 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $1,672.00.
1.17On 1 January 2014, the Respondent transferred the amount of $1,364.00 from his trust account to his office account without the authority of his client, [HQ], as particularised at Appendix 18 of the Bray Report.
1.18On 30 April 2013, the Respondent transferred the amount of $962.50 from his trust account to his office account without the authority of his client, [CT], as particularised at Appendix 19 of the Bray Report.
1.19On 29 March 2014, the Respondent, following a trust receipt of the sum of $4,950.00 on 28 March 2014, transferred the amount of $2,475.00 from his trust account to his office account without the authority of his client, [JC], as particularised at Appendix 20 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $1,125.00.
1.20On 14 November 2013, the Respondent, following a trust receipt of the sum of $2,000.00 on 8 November 2013, transferred the amount of $1,564.20 from his trust account to his office account without the authority of his client, [UV], as particularised at Appendix 21 of the Bray Report and, in circumstances where this amount exceeded his legal costs to that date by $770.00.
Ground 2: In breach of Section 230 of the Act, the Respondent caused deficiencies in his trust account totalling the sum of $63,286.50
Particulars
2.1 The Society repeats the particulars in Ground 1 above in relation to the unauthorised transfer of monies from the Respondent’s trust account to his office account in payment of legal costs either in advance of any work being undertaken at all on behalf of the client or, in excess of the value of the work undertaken as the case may be, as identified in the Ground 1 particulars.
Ground 3: In breach of Section 229(1)(b) of the Act the Respondent withdrew from his trust account during the period 1 April 2013 to 20 June 2014 amounts in payment of legal costs without the authority of his client, without the issue of a tax invoice to the client or, otherwise, within seven days of the date of the invoice as the case may be, being a failure to comply with Regulation 62 of the Legal Profession Regulations 2007
Particulars
3.1 The Society repeats the particulars in Ground 1 above.
Ground 4: In breach of Section 291 of the Act, the Respondent failed to include or attach to the tax invoices issued to clients written notification of the client’s right to have the costs assessed under Division 3.2.7 of the Act and the time limits which apply to the taking of such action
Particulars
4.1 The Society repeats the particulars to Ground 1 above in relation to the tax invoices issued to clients referred to in the Bray Report.
(emphasis as per original)
The defendant did not contest the proceedings in the ACAT and, on 5 February 2015, the ACAT made orders, by consent, declaring that the defendant was guilty of professional misconduct in relation to each of the grounds 1, 2, 3 and 4 in the application dated 24 July 2014 and requiring the defendant to pay the Law Society’s costs of the application. The ACAT further recommended that the defendant’s name be removed from the local roll of legal practitioners.
The present proceedings
Section 431 (3) of the Legal Profession Act provides that, if the ACAT makes an order recommending that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll, a copy of the order may be filed in this Court, and this Court may order the removal of the name from the roll. As we have already noted, the originating application seeking orders that the defendant’s name be removed from the local roll is based upon the order of the ACAT recommending that his name be removed from the roll. The defendant consented to this order being made, and we made the order on 3 August this year.
We have prepared formal reasons for making the order consistent with the approach taken by this Court in Law Society of the Australian Capital Territory v Burns [2012] ACTSC 91, where the need to provide reasons, even in cases where removal of the name of the practitioner is by consent, was discussed at [6] – [7]:
First, the reasons for a person’s removal from the roll may be relevant in any subsequent application for re-admission as a practitioner. In NSW Bar Association v Cummins (2001) 52 NSWLR 279, the New South Wales Court of Appeal (Spigelman CJ with whom Mason P and Handley JA agreed) held that even where the order removing a name from the Roll of Legal Practitioners is not opposed by the practitioner, the Court should record its findings, saying (at 285; [24]-[25]):
24 In such a case as the present, where there is no substantive contest as to the ultimate operative order which the Court should make, it is of particular significance that the Court should record its findings. As Kirby P said in The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4:
For the ordinary case, the Court has adopted the principle that, normally, it will state its findings on the totality of the matters put forward as constituting professional misconduct, so that these will be available to be dealt with, should they ever become relevant to any future application by the former solicitor for readmission to practise.
His Honour referred to Law Society of New South Wales v Seymour (Court of Appeal, 14 April 1982, unreported) and Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 362.
25 Kirby P went on to say in Prothonotary v Ritchard (at 4-5):
... Although the opinion must be reached that the offences warrant at the time of order permanent removal, the removal of a solicitor from the Roll is not necessarily intended to be permanent in fact. See Ex parte Evatt; Re New South Wales Bar Association (1971) 71 SR (NSW) 153 at 157 ... People can redeem themselves and demonstrate it by later conduct as a number of cases in this State, both of solicitors and barristers, show. Because that opinion may give encouragement, in due course of time, to an application to be readmitted, it is all the more important that the unfortunate saga of the opponent’s misdeeds should be collected and found by the Court.
Regulation of the legal profession generally
Secondly, the reasons given by a Full Court for ordering a person’s name to be removed from the roll may be useful in the regulation of the profession, both directly, as a warning to other practitioners, and also by providing guidance to both the relevant professional body (in this case the Law Society) and to the ACT Civil and Administrative Tribunal (ACAT), which plays a significant part in the regulation of the legal profession in the ACT including through its role in the processes for dealing with complaints about legal practitioners.
(emphasis as per original)
Conclusion
Being satisfied that the defendant was guilty of professional misconduct as set out in the Law Society’s application in the ACAT dated 24 July 2014, we made the order removing his name from the roll of practitioners.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Penfold, Justice Burns and Justice North. Associate: Date: 18 August 2015 |
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