Legal Services and Complaints Committee v Ginbey
[2025] WASC 42
•13 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : FULL BENCH
CITATION: LEGAL SERVICES AND COMPLAINTS COMMITTEE -v- GINBEY [2025] WASC 42
CORAM: MCGRATH J
FORRESTER J
COBBY J
HEARD: 30 OCTOBER 2024
DELIVERED : 13 FEBRUARY 2025
FILE NO/S: LPD 6 of 2024
BETWEEN: LEGAL SERVICES AND COMPLAINTS COMMITTEE
Applicant
AND
HOWARD JOHN GINBEY
Respondent
Catchwords:
Legal practitioners - Disciplinary proceedings - Removal from Roll of Practitioners - Whether practitioner fit and proper person to remain a member of the legal profession - Dishonest acquisition and use of trust moneys - Failure to respond and deal with Legal Profession Complaints Committee
Legislation:
Interpretation Act 1984 (WA)
Legal Profession Act 2008 (WA) (repealed)
Legal Profession Conduct Rules 2010 (WA) (repealed)
Legal Profession Uniform Law (WA)
Legal Profession Uniform Law Application Act 2022 (WA)
Result:
Order that the practitioner's name be removed from the Roll of Practitioners
Category: B
Representation:
Counsel:
| Applicant | : | C R Bailey |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Legal Practice Board |
| Respondent | : | No appearance |
Cases referred to in decision:
Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340
Dupal v Law Society of New South Wales [1990] NSWCA 56
Kyle v Legal Practitioners Committee [1999] WASCA 115; (1999) 21 WAR 56
Law Society of the ACT v Powrie [2017] ACTSCFC 4; (2017) 12 ACTLR 184
Legal Profession Complaints Committee v Chin [2012] WASC 467
Legal Profession Complaints Committee v In De Braekt [2013] WASC 124
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v McLean [2012] WASC 297
Legal Profession Complaints Committee v Oud [2019] WASC 287
Legal Services and Complaints Committee and Ginbey [2023] WASAT 113
Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S)
JUDGMENT OF THE COURT:
By originating motion, the Legal Services and Complaints Committee applied for an order that Howard John Ginbey be removed from the roll of practitioners pursuant to s 23(1) of the Legal Profession Uniform Law (WA) (Uniform Law).
Background
Following an application made on 8 September 2022, a disciplinary proceeding against Mr Ginbey was referred to the State Administrative Tribunal for determination pursuant to s 428 of the Legal Profession Act 2008 (WA) (repealed) (the Act).
Because the proceeding concerned Mr Ginbey's conduct prior to 1 July 2022, the Tribunal determined the Act continued to apply to the proceedings as a result of s 37 of the Interpretation Act 1984 (WA), the Uniform Law having come into effect on that date.[1]
[1] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [17].
On 22 March 2024, the Tribunal made an order, pursuant to s 438(2)(a) of the Act, that it make and transmit a report to this court on the Tribunal's findings that Mr Ginbey was guilty of professional misconduct, with a recommendation that Mr Ginbey's name be removed from the roll of legal practitioners.
The report of the Tribunal was transmitted to this court on 16 April 2024. The report included the Tribunal's reasons for decision in Legal Services and Complaints Committee and Ginbey,[2] the Tribunal's reasons for decision in Legal Services and Complaints Committee and Ginbey,[3] a transcript of the hearing of 9 March 2023 and copies of the exhibits in the proceedings.
[2] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113.
[3] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S).
Mr Ginbey did not engage with the proceedings in the Tribunal. Despite having been personally served with the originating motion and directions hearing listing notice, and having been served by ordinary post with a copy of the applicant's submissions and with notice of this hearing, he has also not engaged with the proceedings in this court.
The findings against the respondent
The facts and findings of the Tribunal are set out in its reasons for decision and may be summarised as follows.
Mr Ginbey had practised as a sole practitioner under the name Ginbey & Co (the Firm) since 1991. Until 30 June 2019, Mr Ginbey held an unrestricted practising certificate. On 3 July 2013, Mr Ginbey closed his trust account. He informed the Legal Practice Board (the Board) accordingly on 9 July 2013.
Mr Ginbey informed the Board in August 2018 that he had been winding down his practice and considered it 'for all intents, closed.' A manager was appointed to the Firm on 12 December 2019.
Findings related to Mrs N-N
In the course of acting for Mrs N‑N and later the Public Trustee (at a time when the Public Trustee was Mrs N‑N's administrator) Mr Ginbey:
(a)in August of 2014 received from Mrs N‑N the sum of $37,704.14 which was transit money and trust money in circumstances where he operated no trust account;[4]
(b)received the sum of $37,704.14 into an overdraft account which at the time was in debit;[5]
(c)failed to pay the $37,704.14 to the Department of Veterans' Affairs as instructed by his client as soon as practicable after it was received, or at all;[6]
(d)failed to repay the funds to the Public Trustee after the Public Trustee in October 2017 had revoked the instructions to pay the money to the Department of Veterans' Affairs and demanded repayment of the money, only repaying it on 27 March 2018;[7]
(e)in June 2014 invoiced Mrs N‑N, and in July 2014 accepted payment of those invoices, for the sum of $2021, being the costs of preparing and lodging two survivorship applications, which to the respondent's knowledge was work he had not performed;[8]
(f)failed to lodge the Survivorship Applications diligently or at all;[9]
(g)after December 2017, failed to respond to communications and requests for information from the (then) Legal Profession Complaints Committee (LPCC) in connection with the N‑N matter;[10] and
(h)after December 2017, failed to comply with a summons issued by the LPCC pursuant to the Act in respect of the N‑N matter by the date for compliance, or at all.[11]
[4] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [81], [90].
[5] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [81] - [82].
[6] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [89].
[7] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [88], [89.4].
[8] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [120] - [127], [130]. Despite a demand served personally on the respondent by the Public Trustee for the sum of $2021 to be repaid, the respondent has never repaid any part of it: Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [132].
[9] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [133].
[10] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [147], [149].
[11] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [147], [149].
Mr Ginbey's conduct breached a number of provisions of the Act relating to trust and transit money, as well as provisions of the Legal Profession Conduct Rules 2010 (WA) (repealed) (Rules). Further, his failure to return the money to Mrs N‑N in circumstances in which he knew he had not performed the work for which the money was paid was a serious act of dishonesty.[12]
[12] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [138].
The conduct was characterised as professional misconduct under the Act and at common law, being conduct which would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence and which fell well short, to a substantial degree, of the standards observed or approved by members of the profession of good repute and competence.[13]
Findings related to the C matter
[13] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [282].
In the course of acting for Mr WC and Mr GC, who instructed him in November 2016 to act as the executor of their father's estate, to obtain a grant of probate, and to administer the estate, Mr Ginbey:
(a)requested and received from or on behalf of the clients into an overdraft account which was at the time in debit, the sum of $4,360 which was trust money within the meaning of the Act in circumstances where Mr Ginbey operated no trust account;[14]
(b)failed to account to the clients for the sum of $4,360;[15]
(c)failed to respond to communications and requests for information from the LPCC in connection with the matter;[16]
(d)failed to comply with a summons issued by the LPCC pursuant to the Act in respect of the matter by the date for compliance or at all;[17] and
(e)failed to deliver legal services diligently or at all.[18]
[14] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [171] - [174], [190].
[15] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [196].
[16] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [221].
[17] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [219].
[18] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [182].
Mr Ginbey's conduct in relation to the trust funds breached a number of provisions of the Act relating to trust money and satisfied the common law test of professional misconduct and the definition of professional misconduct as contained in the Act.
The conduct of Mr Ginbey in failing to deliver legal services diligently or at all, when he had already accepted payment for those services, while not as serious as that in relation to the trust funds, was still serious, and amounted to professional misconduct as defined in the Act and as described in the second limb of the common law test in Kyle.[19]
Findings related to the matter of P's estate
[19] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [282]; Kyle v Legal Practitioners Committee [1999] WASCA 115; (1999) 21 WAR 56.
P died in April 2016, leaving a will by which Mr Ginbey was appointed as her executor. In acting as the executor of P's estate, Mr Ginbey:
(a)between September and November 2016 misappropriated approximately $83,741.22 from the estate of P (Estate Funds) into his personal bank account;[20]
(b)withdrew or spent the Estate Funds which he had misappropriated into his personal bank account for a purpose unconnected with the administration of the Estate of P;[21]
(c)failed to account to the beneficiaries of the estate of P until around January 2021;[22] and
(d)A. failed to comply with orders of the Supreme Court of Western Australia dated 3 December 2018 and 15 February 2019 which required him to pass the accounts of the estate of P, or alternatively;[23]
B.if Mr Ginbey was not aware of the orders dated 3 December 2018 and 15 February 2019, avoided his responsibilities as executor and solicitor in circumstances where he continued to hold a practising certificate and where the administration of the estate of P was ongoing by:
(i)failing to check correspondence sent to his Firm's address, which remained the current address provided to the Supreme Court and to the Legal Practice Board; and
(ii)failing to update his address with the court or the Legal Practice Board, to the extent there had been a change.[24]
[20] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [243].
[21] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [247].
[22] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [282].
[23] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [263].
[24] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [269].
The conduct, in either case, met the definitions of professional misconduct as described in both limbs of the common law test articulated in Kyle and as defined in the Act.[25]
[25] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 [282].
The Tribunal's characterisation of the seriousness of the conduct
The Tribunal described the seriousness of Mr Ginbey's conduct in the following terms:
The misuse of client funds has been said to be conduct of the utmost seriousness, generally warranting striking off.
The failure to operate a trust account so as to ensure that client's funds were not comingled with his own funds and therefore could only be used in accordance with the client's instructions or returned to the client, was undoubtedly a serious failing. What was worse, however, was that the Practitioner retained his clients' funds without doing any significant part of the work for which he was engaged and refused to return the funds for lengthy period of time or at all despite being asked to do so.
The failure to respond to notices and summons issued by the Applicant was also serious misconduct. We have already referred to the obligations of legal practitioners to respond to notices and summonses issued by their regulatory authority. Legal practitioners are expected to uphold the law. The disregard of a statutory direction from the regulatory authority is, as was said in Law Society of New South Wales v Sullivan, a prima facie indication of unfitness to practise.[26] (citations omitted)
[26] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S) [24] - [26].
The Tribunal considered the lack of remorse, seriousness of the conduct, the lack of prior disciplinary history, the need for personal and general deterrence, the protection of the public, maintenance of public confidence in the profession, denouncing transgressions, Mr Ginbey's fitness to practise, and the fact that the conduct was not isolated and occurred over several years in relation to three client matters.[27] Having done so, the Tribunal indicated it was left in no doubt that the appropriate penalty was that set out in s 438(2) of the Act, being the making and transmission of a report to the Supreme Court (Full Bench) with a recommendation that Mr Ginbey's name be removed from the roll of practitioners.[28]
[27] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S) [22] - [34].
[28] Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S) [36].
Statutory framework and relevant principles
The application to this court is made pursuant to s 23(1)(c) of the Uniform Law, which relevantly provides that the Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court roll[29] on the recommendation of the designated tribunal, which in this State is the State Administrative Tribunal.[30]
[29] The roll of persons admitted to the legal profession maintained by the Supreme Court under s 28(1) of the Act continues from 1 July 2022 as the Supreme Court roll, which is required to be maintained under s 22(1) of the Uniform Law: Legal Profession Uniform Law Application Act 2022 (WA) s 322.
[30] Legal Profession Uniform Law Application Act 2022 (WA) s 22.
There is authority for the proposition that the report made by the Tribunal is conclusive as to all facts and findings mentioned or contained in the report.[31] In these proceedings there is no challenge as to the facts or findings or their conclusiveness.
[31] Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340; Law Society of the ACT v Powrie [2017] ACTSCFC 4; (2017) 12 ACTLR 184 [79].
A report from the Tribunal does not automatically result in an order that a practitioner be removed from the roll of practitioners. The court must satisfy itself that the practitioner is not a fit and proper person to practise law and that it is appropriate to remove their name from the roll.[32]
[32] Legal Profession Complaints Committeev Chin [2012] WASC 467 [19]; Legal Profession Complaints Committee v In De Braekt [2013] WASC 124 [31].
The principles to be applied in an application such as this are well established, and were summarised by this court in Legal Profession Complaints Committee v Oud[33] as including:
(a)the court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession;
(b)where the motion is to remove a practitioner from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner;
(c)fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges;
(d)removal from the roll is an order reserved for very serious cases, where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice; and
(e)integrity and honesty are essential characteristics expected of a practitioner, and therefore, the court has generally taken a very serious approach when dealing with dishonesty by a practitioner.
[33] Legal Profession Complaints Committee v Oud [2019] WASC 287 [17].
Disposition
Personal circumstances of the respondent
Given that the respondent has not appeared in these proceedings, and did not seek to place any material before the court, the court has no additional information as to the respondent's personal circumstances.
Is the respondent a fit and proper person?
The professional misconduct of Mr Ginbey occurred in relation to three separate matters, involving a number of clients and interested parties. Mrs N‑N was very vulnerable. Mr WC and Mr GC trusted Mr Ginbey, on the basis of their previous interactions with him, to administer the estate of their father. In the case of Mrs P, Mr Ginbey was sufficiently trusted to be appointed her executor, a position which he egregiously abused. His misconduct extended over a number of years, during which it provided Mr Ginbey a significant financial benefit. Mr Ginbey's conduct involved the misappropriation of more than $100,000 of trust funds, which he only repaid when it was persistently demanded.
The protective jurisdiction of the court requires that it treats misconduct in relation to trust monies with the utmost seriousness.
Mr Ginbey also failed to respond to requests and summonses issued by the LPCC either adequately or at all. A practitioner has a duty to be open and candid with the regulatory authority, and failures to do are to be regarded with considerable seriousness.
Mr Ginbey's conduct, as recorded in the report from the Tribunal, fell well short of the conduct expected of legal practitioners on repeated occasions over a period of years.
Honesty and integrity are essential characteristics required of legal practitioners, particularly where practitioners are dealing with moneys entrusted to them by their clients.[34] The public is entitled to expect that practitioners will act 'with meticulous care and complete honesty and accountability' in dealing with amounts held upon trust.[35]
[34] Legal Profession Complaints Committee v Masten [2011] WASC 71 [19].
[35] Legal Profession Complaints Committee v Masten [20].
Mr Ginbey's conduct, in seriously breaching his obligations to deal with trust money honestly and not for his own benefit, retaining amounts in respect of work that he did not carry out, and failing in his obligation to deal candidly with the LPCC regarding his conduct, demonstrated a lack of integrity inconsistent with his being a fit and proper person to remain a legal practitioner.
We were therefore satisfied that the only appropriate order was that Mr Ginbey's name be removed from the Roll of Practitioners, with the intention that the decision to do so should 'leave no doubt in the mind of a practitioner in financial difficulties, exposed to the temptation of using without clear authority the funds of another, the consequences that will flow for the right to practise when such misuse of funds is discovered'.[36]
[36] Dupal v Law Society of New South Wales [1990] NSWCA 56; Legal Profession Complaints Committee v Masten [34].
Costs
In circumstances in which Mr Ginbey did not oppose the orders sought by the Committee, it is appropriate to regard the costs of these proceedings as part of the cost of regulating the profession and to make no order as to costs.[37]
[37] Legal Profession Complaints Committee v McLean [2012] WASC 297 [16].
Orders
For these reasons, the court ordered that Mr Ginbey's name be removed from the Roll of Practitioners and made no order as to the costs of these proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Hon Justice Forrester
13 FEBRUARY 2025
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