Legal Services Board v Bourozikas
[2009] VSC 382
•3 September 2009 (Reasons provided 8 September 2009)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8035 of 2009
| LEGAL SERVICES BOARD (ABN 82 518 945 610) | Plaintiff |
| v | |
| GEORGE BOUROZIKAS | Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2009 | |
DATE OF JUDGMENT: | 3 September 2009 (Reasons provided 8 September 2009) | |
CASE MAY BE CITED AS: | Legal Services Board v Bourozikas | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 382 | |
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LEGAL PRACTITIONERS – Removal of lawyers’ name from local Roll of Practitioners – Legal Profession Act s 2.4.42.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Senathirajah | Legal Services Board |
| For the Defendant | No appearance | - |
HIS HONOUR:
Introduction
Pursuant to s 2.4.42 of the Legal Profession Act (“the Act”), the Legal Services Board seeks to have Mr George Bourozikas removed from the Local Roll of Lawyers kept by this Court.
Mr Bourozikas was, on 19 November 2008 in this Court, convicted by Curtain J on three counts of theft and one count of deficiency in a trust account. He was sentenced to a total effective term of imprisonment of 18 months, with six months to be served immediately and the balance suspended for a period of 18 months.
I am of the opinion that it is appropriate that the Board’s application be granted and that Mr Bourozikas’ name be removed from the Roll. The following are my reasons for reaching this conclusion.
Factual matters
Mr Bourozikas was admitted as a solicitor and barrister of this Court on 1 April 1982. He worked as an employee solicitor from April 1982 to May 1984 and, since then, as a principal authorised to receive trust moneys. He conducted his legal practice from Houghton Road, Clayton, and operated a trust account with the Clayton branch of the ANZ bank.
As a result of a routine audit by Law Institute investigators, his criminal activities came to light. On 4 April 2007, the Law Institute applied for receivership of his practice, which was granted. On 22 February 2008, Mr Bourozikas was interviewed by the police and admitted carrying out the offences with which he was subsequently charged.
On 3 November 2008, Mr Bourozikas was presented before the Supreme Court and pleaded guilty to each of the counts with which he had been charged. It is helpful to recite parts of her Honour’s reasons for sentence (delivered 19 November 2008):[1]
[1][2008] VSC 558.
“4. You had also placed on the estate's file two unsigned letters addressed to each of the beneficiaries purporting to enclose a cheque for $50,000 to each of them as partial distribution of the estate. These matters came to light when, as part of a routine audit, the Law Institute investigators contacted Ms Lau and Mr Brooks seeking confirmation of the receipt of $50,000.
5. On 22 February 2008, you were interviewed by officers of the Fraud Squad. In that interview, you admitted depositing the two $50,000 cheques from the trust account into your personal bank account. You stated that you had been under financial pressure at the time and intended to borrow the money from the trust account and to pay it back. You admitted that you had spent all but $28,000 of the money paying off credit card debt, school fees, everyday expenses and a holiday to Greece, and you acknowledged that what you had done was dishonest. When asked if you had a reasonable excuse for having the deficiency in your trust account, you replied that there was no excuse, "I was just a stupid idiot."
6. In a letter dated 10 March 2008, you wrote to the Fraud Squad indicating that you would accept service of the hand up brief and that you intended to plead guilty. Amazingly, one week later, on 17 March 2008, you withdrew $43,170.79 from the account of two of your clients, Mr and Mrs Green, who were then living in America. The withdrawal was in the form of a Commonwealth Bank of Australia bank cheque, made payable to the Australian Taxation Office. At the time you had no authority to access Mr and Mrs Green's account, although previously you had been so authorised.
8. The police were notified on 7 April 2008 and investigations revealed that a cheque for $2,500 was paid by you into Mr and Mrs Green's account, but it was subsequently dishonoured. No other attempt had been made to repay the money.”
Her Honour reached the following conclusion as to Mr Bourozikas’ motivation for the defalcation:
“25. Although the money stolen from Mr and Mrs Green was intended to meet your obligations to the Australian Taxation Office so as to avoid bankruptcy, there is no doubt that the other moneys were stolen to fund your lifestyle choices and thus, as the prosecutor submitted and I accept, you were simply living beyond your means.”
The seriousness of the offences committed by Mr Bourozikas is reflected in the following paragraph of her Honour’s judgment:
“28. In sentencing you, I must have regard to the nature and gravity of the offences here committed. The defalcation in your trust account is a serious breach of your professional obligations, and the theft of your clients' money on three occasions two years apart is a significant breach of trust, it is reprehensible conduct of the highest order. It is conduct which brings the profession into disrepute and impacts upon the confidence the community reposes in the profession. It follows that I regard these as serious offences and your culpability as high.”
Subsequent to her Honour’s decision, the Crown appealed[2] and, although the appeal was dismissed, it is worth reciting what was said by the Court of Appeal in relation to the motives underlying the offences.
“22. The judge, however, was not satisfied that the respondent’s psychological condition attracted the principles adumbrated in Verdins, either in terms of a reduction in moral culpability or any amelioration of the need for general or specific deterrence. Rather, as her Honour found, the genesis of the respondent’s offending was that he had struggled to maintain the appearance of a successful solicitor when in reality he was working long hours without attaining financial success. It also appeared that the pressures of his working life were compounded by the early retirement of his conveyancing clerk, upon whom he had placed great reliance, and by his son’s condition. But the fact remained, as the judge observed, that the respondent had stolen the $100,000 to fund a lifestyle to which he aspired but could not afford, including the trip to Greece, a family holiday to Bali and fees for his daughter to attend pre-school; and, although the $43,170.79 stolen from the Greens had gone to pay the Australian Taxation Office in order to avoid bankruptcy, the need to do so had come about because the respondent was living beyond his means.”
[2][2009] VSCA 29.
The Court of Appeal also made the following observation in relation to the breach of a solicitor’s trust account obligations:
“25. The maximum sentence for theft is 10 years’ imprisonment and the maximum sentence for a deficiency in a trust account is 15 years’ imprisonment. The higher penalty for the latter offence reflects the very serious nature of fraudulent breach of a solicitor’s trust account obligations. As Young, CJ explained in Director of Public Prosecutions v Ryan, offences which demonstrate that a solicitor is not to be trusted bring the whole profession into disrepute and, therefore, a solicitor who is guilty of such offences must be punished severely. The sentences to be imposed in such cases, therefore, must be such as not only to reflect the nature and gravity of the offending but also to make plain the court’s abhorrence and denunciation of the nature of the offending and to provide general deterrence against the possibility of its repetition.” (Citations omitted).
Mr Bourozikas has served the six months’ imprisonment and has since been released.
Compliance by the Board with the statutory obligation of s 2.4.42 of the Legal Profession Act
The conviction of Mr Bourozikas triggered the operation of s 2.4.42 of the Act.[3]
[3]Section 2.4.42(1).
In accordance with sub-s (2), the Board served a notice requiring Mr Bourozikas to show cause why his name should not be removed.[4] He was given 28 days in which to show cause. The notice requiring him to show cause was served personally at the Beechworth Correctional Centre on 18 February 2009. No response was received by the Board.[5]
[4]Affidavit of Ellie Lucas sworn 24 July 2009, [14]-[15].
[5]Affidavit of Ellie Lucas [16]-[18].
The Board issued the originating motion in this proceeding on 29 July 2009 with an accompanying summons. The process was served on Mr Bourozikas and he has not appeared on the application.
In the circumstances, I am satisfied that the Board has complied with s 2.4.42(2) to (4) of the Act in giving Mr Bourozikas the opportunity to show cause as to why his name should not be removed.
Exercise of the power
An order such as that sought by the Board must not be made lightly. Proof of guilt of an offence does no more than trigger the operation of the provisions of sub-ss (2) to (4). The Court retains an overriding discretion concerning the removal of a practitioner’s name from the Roll.
In Law Institute of Victoria v Gough,[6] Hansen J said of the Court’s jurisdiction in considering an application to have a solicitor struck off the Roll:
“The jurisdiction being protective of the public, and not directed to punishment of the practitioner, it is not an answer to the application to point to the convictions and penalty which the solicitor has suffered. Nor on this application is the Court concerned with the general reputation of the practitioner, as the inquiry concerns intrinsic character which is a different matter as was pointed out in In re Davis (1947) 75 CLR 409 at 416-417 per Latham, CJ and at 426 per Dixon, J”. (Citations omitted).[7]
[6]Unreported, 10 February 1995.
[7]Ibid p 11.
In Re Weare,[8] Lopes LJ said:
“To my mind, the question which the Court in cases like this ought always to put to itself is this, is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor”.[9]
[8](1893) 2 QB 439, 448.
[9]See also Southern Law Society v Westbrook (1910) 10 CLR 609, 619.
The facts in Law Institute of Victoria v Gough were not dissimilar to those in the present case. The solicitor defalcated with clients’ moneys held on trust. Hansen J ordered that his name be struck off the Roll. In doing so, he made the following pertinent observation, which I respectfully adopt:
“The conduct (or misconduct) was grave (as were the offences), striking at the very heart of the standards of honesty and observance of proper professional standards which are essential to practice as a solicitor. Nor was there just one transaction, but a series of appropriations over a prolonged period of time.”[10]
[10]Unreported, 10 February 1995, p 13.
Conclusion
Mr Bourozikas’ conduct was a patent breach of the trust reposed in him by his clients. It was deliberate and repeated.
Having reviewed the material submitted on behalf of the Board and the applicable principles which I have endeavoured to set out, I have concluded that Mr Bourozikas is not a fit and proper person to practice and that his name should be removed from the Local Roll of Lawyers kept by this Court.
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