New South Wales Bar Association v Nguyen

[2002] NSWADT 264

CITATION:	New South Wales Bar Association v Nguyen [2002] NSWADT 264
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Bar Association of New South Wales RESPONDENT Van Thieu Nguyen
FILE NUMBER:	012014
HEARING DATES:	18/09/02
SUBMISSIONS CLOSED:	09/18/2002
DATE OF DECISION:	12/16/2002
BEFORE:	Norton S SC - Judicial Member; Fox R - Judicial Member; Dyster B - Member
APPLICATION:	Professional Misconduct - barrister receive money on behalf of another person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT C Adamson, barrister RESPONDENT No appearance
ORDERS:	1. That the barrister Thieu Van Nguyen be found guilty of professional misconduct with respect to the conduct contained in Ground 1 of the Information filed 31 May 2001.; 2. Grounds 2 and 3 of that Information be dismissed.; 3. The proceedings be stood over to a date to be fixed to allow the Tribunal to hear submissions on the question of costs and penalty.

1 In this matter by Information filed on 31 May 2002 the Council of the New South Wales Bar Association complains about the conduct of a barrister when he received certain monies into bank accounts which were his or over which he exercised control. It was alleged that he received these monies in the course of his practice as a barrister on behalf of other persons and therefore in contravention of section 38(P) of the Legal Profession Act 1987 (LPA) and Rule 77 of the New South Wales Barristers Rules.

The Information

2 The Information filed on 31 May 2001 was composed of 3 grounds:

Ground 1

Between 18 December 1998 and 30 December 1998 the Respondent in the course of practising as a barrister received money on behalf of another person.

Particulars

(a) From on or about 18 September 1988 the Respondent acted as the legal counsel for Seab Australia Pty Limited ("Seab").

(b) Seab was a corporation incorporated in New South Wales, Australia.

(c) Between about September 1998 and December 1998 Seab entered into negotiations with Waterloo Land and Investment Co. Pty Ltd (Wallco) to establish a joint venture whereby live cattle would be exported from Australia imported into Vietnam.

(d) At all material times including between September 1998 and 30 December 1998 the Respondent operated an account with the Vietnam Foreign Trade Bank ("Vietcombank"), account No. 362 431 378 9130.

(e) On or about 16 September 1998 the Respondent agreed with Seab to allow his Vietcombank account to be used for the deposit of funds by Seab to satisfy requirements of the Vietnam Government in the sum of US$100,000 by way of a US bond until the completion of the licensing procedure in Vietnam or for the period of one year whichever happened earlier, which funds were to be held by him on trust for Seab.

(f) On or about 18 December 1998 the Respondent received into his Vietcombank account the sum of US $100,000 deposited by or on behalf of Wallco.

(g) On or about 28 December 1998 the Respondent removed the moneys from his account with the Vietcombank and transferred them into an account held with the St George Bank Limited in Sydney.

Ground 2

Between 30 December 1998 and 5 January 1999 the Respondent in the course of practising as a barrister received money on behalf of another person.

Particulars

(a) The Informant repeats the Particulars to complaint 1 above.

(b) On or about 28 December 1998 the Respondent received the sum of US$99,840 into an account held with the St George Bank Limited in the name of Austo tourism Resources, en entity in which the Respondent held a 50% interest.

(c) On 5 January 1999 the Respondent arranged for the payment of US$99,840 to Wallco Limited from the account held with the St George Bank Limited.

Ground 3

Between September 1998 and December 1998 the Respondent in the course of practising as a barrister received money on behalf of another person.

Particulars

(a) The Informant repeats the particulars (a), (b) and (d) to Ground 1 above.

(b) At all material times the Respondent acted as a legal counsel for Vietrade International Pty Limited ("Vietrade"), a company incorporated in New South Wales, Australia.

(c) In or about September 1998 the Respondent agreed with Vietrade to allow the deposit of a certified United States bill in the sum of US$1,000,000 into his Vietcom bank account in order to satisfy the Vietnam Government legal capital requirements for a joint venture between Vietrade and Southern Airconditioning (VN) Pty Limited ("Southern Airconditioning").

(d) In or about September 1998 the Respondent confirmed to Vietrade and Southern Airconditioning in writing that he had received into his Vietcom bank account the sum of US$1,000,000 by way of Certified USA Bill.

3 It was confirmed by counsel for the applicant that Ground 2 related to a transaction whereby money held on behalf of Wallco Limited referred to in Ground 1 was transferred from the barristers account in Vietnam to an account in New South Wales over which he exercised some control and then dispersed (minus a small amount presumably for bank fees) to Wallco Pty Limited, the rightful owner.

4 The information sought orders as set out in Section 171C (1) of the LPA. At the hearing it was confirmed that the applicant sought an order that the barrister was guilty of professional misconduct and it was indicated that they did not seek to have the barrister's name struck from the roles in accordance with Section 171C (a) as this Tribunal, differently composed, had made such an order on 13 August 2001.

Reply

5 The barrister did not file any reply nor did he appear when the matter was called on for hearing.

Service

6 An affidavit of service sworn on 8 June 2002 by Anastacey John Gavrily became Exhibit 1 and a further affidavit sworn by that deponent on 13 September 2002 became Exhibit 3. The two affidavits read together established that the barrister was served with the information and the affidavit of Alan William Blanch sworn 22 May 2001 together with a folder of exhibits on 5 June 2001.

Hearing

7 After a number of directions hearings the matter was listed for hearing on 18 September 2002. At that time the name of the barrister was called three times outside the court but there was no appearance. Exhibit 5 is a letter dated 23 July 2002 from the Tribunal informing the barrister of the hearing date together with an envelope indicating the letter was being returned. Exhibit 6 is an affidavit of John Wooldridge sworn 16 August 2002 deposing two attempted service of three affidavits on the barrister on 14 September 2002.

8 Exhibit 7 is an affidavit of attempted service sworn by Terrence Edmund Brightman deposing to the attempted service of three affidavits on the barrister on 21 August 2002, 29 August 2002 and 12 September 2002. When those affidavits were originally tendered to the Tribunal they had been incorrectly stapled but this was corrected by the solicitor for the applicant. The Tribunal satisfied itself by comparing the signatures on each page of the affidavit that they are now in the correct order.

Evidence

9 Annexed and marked "A" is a listing of exhibits received by the Tribunal. No oral evidence was given at the hearing.

Jurisdiction

10 The applicant relied on a number of documents contained in Exhibit 2 to establish jurisdiction in this Tribunal. Exhibit 2 is the affidavit of Alan William Blanch, Solicitor, sworn 22 May 2001. There are three grounds in the information and they are referred to in the affidavit as the Holman Webb complaint, paragraphs 5 to 99, Bar initiated complaint, paragraphs 100 to 109 and Russo and Partners complaint, paragraphs 110 to 134. These complaints correlate with grounds 1, 2 and 3 of the information. The following is a chronological list of the most relevant documents relied on by the applicant as establishing jurisdiction in this Tribunal.

Ground 1 Holman Webb Complaint

11 On 29 January 1999 a complaint was made by letter from Holman Webb Solicitors to the New South Wales Bar Association on behalf of their client, Waterloo Land and Livestock Company Pty Limited (AWB3).

12 On 5 February 1999 Ms H. Barrett (HB) referred that complaint to the Legal Services Commissioner (LSC) pursuant to Section 135(2) of the LPA. (AWB 4).

13 On 16 February 1999 by letter the LSC referred the matter to HB for investigation by the Professional Standards Department.

14 On 25 February 1999 Ms M. Goodwin, Deputy Professional Affairs Director (MG) wrote to the barrister informing him of the complaint, a copy of which was enclosed. (AWB 8).

15 On 4 March 1999 the barrister emailed MG with a current address. (AWB 11).

16 On 11 March 1999 MG wrote to the barrister providing further details of the complaint and requesting a response. (AWB 14).

17 On 22 March 1999 letter from the barrister acknowledging receipt of the complaint and enclosing a chronology of his version of events as they occurred just prior to Christmas 1998. (AWB 15).

18 On 16 April 1999 MG wrote to the barrister seeking comments on its further investigation. (AWB 21).

19 On 20 April 1999 email from barrister to MG providing an address for service in Cabramatta. (AWB 27).

20 On 24 May 1999 email from barrister to MG containing submission and requesting further copies of letters be sent by registered mail. (AWB 34).

21 On 10 June 1999 email from barrister to MG confirming he has received documents by registered mail. (AWB 40).

22 On 18 June 1999 letter from barrister to MG containing submissions.

23 On 14 June 1999 letter from barrister to President of Bar Council questing their jurisdiction over events which occurred in Vietnam.

24 On 19 August 1999 email from Corrs Chambers Westgarth indicating they had instructions to act for the barrister and requesting copies of documents. (AWB 47).

25 On 13 September 1999 letter applicant to barrister's solicitors requesting information. (AWB 49).

26 On 9 November 1999 email from barrister confirming Seab Australia Pty Limited was a client of his and seeking an extension of time. (AWB 54).

27 On 10 November 1999 email from barrister's solicitors requesting extension of time. (AWB 58).

28 On 26 November 1999 letter from barrister setting out responses to complaint regarding misleading Victorian Board of Examiners, and non compliance with Section 152 Notice. The response also deals with grounds 1 and 2. (AWB 63).

29 On 23 March 2000 letter from HB to barrister informing his of Bar Council resolution of 16 March 2000 and requiring him to explain his conduct the subject of the complaint by Holman and Webb. (AWB 72).

30 On 24 March 2000 letter from barrister to HB responding to above. (AWB 79).

31 On 3 April 2000 email from barrister's solicitors seeking explanation of complaint. (AWB 80).

32 On 26 May 2000 letter from HB to barrister informing him of the Bar Council's intention to suspend his Practising Certificate. (AWB 93).

33 On 27 June 2000 letter to barrister informing him of Bar Council's resolution of 15 June 2000 to suspend his Practising Certificate. (AWB 96).

34 On 9 August 2000 letter from barrister advising Bar Association that he would apply to remove his name from the list of practising barristers. (AWB 98).

35 On 7 November 2000 letter to barrister enclosing copy of PCC Report and inviting submissions. (AWB 99).

36 On 27 November 2000 letter from barrister commenting on PCC Report of 7 November 2000. (AWB 102).

37 On 27 February 2001 letter to barrister advising him of Bar Council meeting on 24 January 2001 and resolution with respect to grounds 1 and 2. (AWB 103).

38 The barrister was not present at the hearing of this matter. The Tribunal has reviewed the documents listed above and found that it has jurisdiction in this matter. On the face of it the letter informing the barrister of the Bar Council's resolutions (AWB 103) does not contain reasons and therefore may not comply with Sections 171J and Section 156 of the Legal Profession Act (see Murray v Legal Services Commission & Anor [1999] 46 NSWLR 224). The letter, however, enclosed the report to the Bar Council from the Professional Conduct Committee (PCC) which investigated the complaint and whose reasons were adopted by the Bar Council. From reading the documents it appears to the Tribunal that the barrister was notified of the complaint and given ample opportunity to present evidence and make submissions. It also appears that there was a sufficient period of time between the investigation of the complaint and the laying of the information. The Tribunal therefore finds it has jurisdiction with respect to the first ground.

Ground 2 - Bar Council Complaint

39 On 17 August 2000 Bar Council resolved to initiate complaint against the barrister.

40 On 7 September 2000 the barrister was notified of this complaint. (AWB 108).

41 On 11 September 2000 letter from barrister's solicitors acknowledging receipt of complaint and making submissions. (AWB 111).

42 On 9 October 2000 letter to barrister's solicitors informing them that PCC had made recommendation to Council to proceed with complaint and inviting submissions. (AWB 112).

43 On 27 October 2000 letter barrister's solicitors no further submissions. (AWB 114).

44 On 7 November 2000 further letter to barrister enclosing PCC Report and inviting submissions. (AWB 115).

45 On 24 January 2001 Bar Council resolution.

46 On 27 February 2001 letter to barrister informing him of resolution. (AWB 103).

47 After reviewing the above documents the Tribunal is of the opinion that it has jurisdiction to hear this matter noting that a copy of the PCC Report was sent with the letter of 27 February 2001. Again it appears to Tribunal that the barrister was given an opportunity to present evidence and make submissions and that a sufficient period of time elapsed between the investigation of the complaint and the laying of the information. The Tribunal therefore finds it has jurisdiction with respect to ground 2.

Ground 3 - Russo Complaint

48 On 28 September 1999 complaint received from Russo and Partners. (AWB 116).

49 On 7 October 1999 letter to LSC advising him of complaint. (AWB 117).

50 On 15 February 2000 letter LSC to HB referring the matter for investigation. (AWB 122).

51 On 24 February 2000 letter to barrister requesting his submissions with respect to complaints. (AWB 124).

52 On 28 March 2000 further letter to barrister requesting information and informing him of Section 152 of the LPA. (AWB 128).

53 On 10 April 2000 letter from barrister's solicitors concerning complaint. (AWB 131).

54 On 11 May 2000 letter from barrister's solicitors making submissions. (AWB 133 at 310).

55 On 27 November 2000 letter from barrister making submissions. (AWB 134) and enclosing documents.

56 On 24 January 2001 Bar Council resolution.

57 On 27 February 2001 letter to barrister informing him of resolution and enclosing copy of PCC Report.

58 Again having reviewed the documents the Tribunal finds it has jurisdiction in this matter.

Other Proceedings

59 As noted above the Tribunal was made aware of other proceedings against the barrister in this Tribunal. From reading the documents it appears that there was a possibility of proceedings under Section 152 of the Legal Profession Act. In response to an enquiry made by the Tribunal, counsel for the applicant indicated that there is no present intention of bring any further proceedings against the barrister. The Tribunal notes that it may have been preferable if all complaints concerning this barrister had been heard at the same time. There appears to the Tribunal to be a significant overlap between the proceedings heard on 13 August 2001 and the present proceedings.

Ground 1 - Evidence

60 Section 38P of the LPA provides:

"(1) A barrister is not, in the course of practising as a barrister, to receive money on behalf of another person unless authorised under this section".

61 Rule 77 of the New South Wales Barristers Rules provided:

"A barrister must not, in the barristers professional work, hold, invest or disperse any funds for any other person".

62 Thus the applicant must establish that the barrister received money on behalf of another person and that he received it in the course of his practice as a barrister. As the monies in the present instance were received into an account in Vietnam the applicant must show that the transaction has a connection to the barrister's practice of law in New South Wales.

63 Exhibit 14 is an affidavit of Van Angelo Moulis sworn 2 July 2002. Mr Moulis was at the relevant time a partner with Holman & Webb Solicitors. Paragraphs 9 to 18 inclusive of that affidavit were not read as it appeared they may have involved a breach of the Listening Devices Act, 1984. A transcript of the same telephone conversation comprised pages 25 to 46 of the Annexures to Exhibit 2. Those pages were withdrawn and not tendered. Mr Moulis deposes to a conversation with Mr Young of the St George bank. Annexure A to the affidavit is a letter to that bank and annexure is an email from Mr Young indicating that the legal department of the bank will accept service of court documents.

64 Details of the complaint are contained in the letter from Holman Webb dated 29 January 1998 which is Annexure AWB3 to Exhibit 2. In short their client, Waterloo Land and Livestock Co. Pty Limited (Wallco) entered into a joint venture involving livestock with Seab Australia in about September 1998. Wallco contributed US$100,000 to the working capital of the joint venture. Wallco received a fax from the barrister dated 16 September 1998 identifying the account into which the money should be paid.

65 The fax, which was annexed to the complaint, is at page 6 of the annexures to exhibit 2. The letterhead provides as follows:

"From the office of Dr Van Thieu Nguyen, Barrister of the Supreme Court of New South Wales, Australia, International Commission of Jurists, International Commercial Mediator".

66 There are three addresses on the letterhead, the relevant one being:

"Australia, 13th Floor, Wentworth Chambers, 180 Phillip Street, Sydney, 2000".

67 The document is headed confirmation and it reads:

"I, Dr Van Thieu Nguyen, hereby confirm that Mr John Alan Chegwyn, Chief Representative in Vietnam of Seab Australia has with me a trust account the particulars of which are following:
The account No.3624313789132.

The account type: Trust Account.

The account name: Van Thieu Nguyen.

The amount: US$100,000 (One Hundred Thousand United States Dollars) by way of one US bond of $100,000.

The bank: Vietnam Foreign Trade Bank (Vietcom Bank).

The terms: Until the completion of the licensing procedure in Vietnam or 1 year hereof whichever happens earlier.

The purpose: To be held in trust for commencing the licensing procedure for a joint venture between Seab Australia and Waterloo Land & Livestock Co. Pty Limited.

The administration fee: The account administration fee of 1% is applicable and payable in advance.

Vietnam date: 16 September.

Signed: Dr Van Thieu Nguyen.

68 Also enclosed with the complaint is a copy of a letter from Seab Australia Pty Limited to Wallco. The letter is dated 18 September 1998 and it is at page 7 of the annexure to exhibit 2. Relevantly it reads as follows:

"However, it order to resolve this matter we have consulted with our legal counsel in regards to setting up a joint venture trust account for Wallco (Sea) Co. Limited in Vietnam. Seab have already contributed US$100,000 to this account which is enclosed for your information.

We wish to inform to you the contact details of our legal counsel for your further arrangement if it is required to be implemented so as to enable us to meet the certain financial obligations as requested,

Dr Victor Van Thieu Nguyen .... Barrister of the Supreme Court of New South Wales". The address is the same as the Vietnam address on the confirmation referred to above.

69 The complaint also enclosed a computer printout showing that on 18 December 1998 an amount of money was received from Waterloo Land & Livestock Co. Pty Limited to the Vietcom Bank. It was placed in account 3624313789130 in the name of "Dr Van Thieu Nguyen Solicitors Trust Account". The address of Dr Nguyen is the same as that set out at page 6. (Page 8 of annexures to exhibit 2).

70 AWB6 is a letter from the barrister to the New South Wales Bar Association dated 6 January 1999. It seeks a ruling from the bar on the following matters:

"I am a member of the New South Wales Bar and also carry out three other offices as legal representative and attorney at law in Vietnam, China and USA. While working in Vietnam and China, I have been requested to establish trust accounts for some Australian companies having their branch business operations in Vietnam and China. The trust account is to be established with the local banks in Vietnam and China. The purpose of it is to satisfy the legal capital requirements determined by the Vietnamese and Chinese foreign investment laws for licensing and business operation. No disbursement or investment activities are carried on in the trust accounts".

71 The barristers sought a ruling as to whether this would be outside the New South Wales Bar rules.

72 AWB 7 is the letter dated 23 February 1999 from HB indicating that if the barrister was acting in his capacity as a barrister in New South Wales when performing work then the Bar rules would not permit the holding of trust monies. If he was acting in some other capacity then it may be a matter of local law.

73 AWB 15 is a letter from the barrister to the Bar Council 22 March 1999. It relevantly notes:

"I have transferred back to an unknown, unseen, unsolicited client (Wallco Limited), all the money he deposited in my account in Vietnam. I have fulfilled my obligation without charging him any fee at all. However, my unknown client has not fulfilled his obligation. He has not issued the statement to the effect that he has no intention to insult me given the circumstances".

74 That letter enclosed a chronology whereby the barrister explained how he came to hold the money. Relevantly he does not deny that the money was deposited into his account.

75 Page 58 of the annexures to exhibit 2 is a copy of a letter from Wallco International dated 16 December 1998. That letter authorises the payment of US$100,000 into the account of "Dr Van Thieu Nguyen, Solicitors Trust Account - account No. 362431378913".

76 AWB 34 is an email from the barrister to MG. At paragraph 2 he confirms that Wallco placed money into his bank account in Vietnam. He continues "I understand that as a legal practitioner registered in the New South Wales Bar, I have obligation to comply with New South Wales Bar rules. I, however, invite you to examine the possibilities that the Bar rules do not apply to the legal practitioner practising in other capacities in foreign jurisdictions other than Australia".

77 AWB 41 is a letter from the barrister to MG setting out submissions. The submissions highlight the fact that the barrister returned the money to Wallco.

78 AWB 42 is a further letter dated 14 June 1999 enclosing submissions. So far as it is relevant it reads:

4. "The purpose for which the money was deposited into my Vietnamese account is to show the goodwill of Wallco to the Vietnamese Government before any joint venture license can be issued. Such deposit money is required by Vietnamese licensing law. This money however, was fully refunded by me to Wallco's company account in Sydney because the joint venture license had been issued prior to the fund deposit without my knowledge. Legal and ethical obligation has been fully discharged on my part.

5. At all material times, I was referred to by Wallco's director Mr John Quintana as solicitor in Vietnam.

6. The matter clearly falls within the Vietnamese jurisdiction and power.

7. I acknowledge the Bar Council shall have power under the legal profession act and the Bar rule to deal with the matter concerning its legal professional members acting on the capacity and within its jurisdiction and power. However, I submit the Bar jurisdiction and power does not extend to legal profession members acting on other capacity in foreign jurisdictions as in this case.

79 AWB 54 is a copy an email from the barrister which states in part "I have not control Seab Australia Pty Limited. They were one of my clients one year ago. I were retained as a solicitor in Vietnam by them to provide legal assistance in obtaining a JV license under the Vietnamese jurisdiction in Vietnam. You should contact them directly if you wish to". The Tribunal notes that one year prior to the email would be November 1998.

80 AWB 63 is a further letter from the barrister to the Bar Association dated 26 November 1999. At page 2 the barrister acknowledges "In late 1997 and early 1998, I gave occasion advice to Seab Australia. This advice was not connected with the proposed joint venture with Waterloo Land & Livestock Company Pty Limited (Wallco)". The submissions set out that the barrister did not seek to have the money placed into his bank account and that he utilised a bank account of Austo Tourism Resources as a devise to return the money to Wallco, its rightful owner.

Submissions and Findings

81 It was submitted on behalf of the applicant that the above evidence established that the barrister has offended the provisions of Section 38P of the Legal Profession Act.

82 It is clear that the barrister received money belonging to another person into his bank account in Vietnam. The more difficult question is whether in receiving that money he was acting "in the course of practicing as a barrister".

83 The applicant submitted that the letter from Seab Australia Limited established that the barrister was the legal counsel for one of the parties to the joint venture. Reliance was placed on section 69 of the Evidence Act. The Tribunal accepts this submission supported as it is by various statements in documents prepared by the barrister which appeared to confirm he was at the relevant time acting as legal counsel for Seab Pty Limited.

84 The applicant further submits that the confirmation document (paragraph 67) establishes that the money was received by the barrister in the course of practising as a barrister. Of relevance is the address of Wentworth Chambers, the reference to trust account, and the barrister describing himself as a barrister of the Supreme Court of New South Wales. The Tribunal accepts this submission and notes that the account number in that confirmation correlates to the account number in the other documentation.

85 The barrister appears to suggest that he received the money as a solicitor in Vietnam and therefore the LPA and the New South Wales Bar rules have no application.

86 The Tribunal notes that the confirmation is dated in Vietnam. It notes, however, that the barrister describes himself as a barrister of the Supreme Court of New South Wales and lists Wentworth Chambers as his address. The Tribunal was referred to section 134 of the LPA. Subsection 4 of that section provides:

"A complaint may be made about conduct that is alleged to have occurred either within or outside this state".

87 The Tribunal was referred to the decision of the New South Wales Court of Appeal in the matter of Coe v New South Wales Bar Association unreported 29 February 2000. That case concerns the swearing of a misleading affidavit by a barrister. The Tribunal concluded that the affidavit was false and knowingly so. The Court of Appeal noted that "given that the barrister did not give evidence before the Tribunal, despite the most explicit warning of the risk he was taking, the conclusion was well nigh inevitable". (Paragraph 4 Mason P.). It was further noted that "if he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath". (Meagher JA paragraph 21).

88 The Tribunal acknowledges that the facts in the coe matter differ substantially from the present case. In that case the barrister was present at Court but chose not to give evidence. Nevertheless the Tribunal notes that the barrister, despite being given numerous opportunities to do so, failed to file any affidavit explaining his behaviour. The documents tendered by the applicant establish, at least to a prima facie level, that the barrister received money which belonged to another and that he received it in the course of his practising as a barrister which practice he carried on at least in part from Level 13, Wentworth Chambers, Sydney, Australia. The tribunal further notes that the confirmation document indicates that the barrister was acting as a barrister in New South Wales rather than a solicitor in Vietnam.

89 Is this conduct professional misconduct within the meaning of Section 127 of the LPA?. Professional misconduct and unsatisfactory professional conduct are defined in that section. From reviewing the evidence it appears that the barrister, although he received the money into his trust account, eventually returned the bulk of it to its true owner. The complaint is one of receiving money belonging to another rather than misappropriating it. It does not appear that the barrister gained any financial advantage out of his conduct. Nevertheless the prohibition against barristers receiving money belonging to others is so strong and so soundly based that the Tribunal finds that his conduct amounts to professional misconduct.

Ground 2 - Evidence

90 Ground 2 was a complaint made by the Bar Association. It relies on the evidence already summarised with respect to Ground 1 plus certain documents produced from the St George Bank which show that the funds were transferred into that bank and thence out to Wallco Pty Limited (exhibit 13).

Submissions and Findings

91 It was urged on the Tribunal by counsel for the applicant that there was sufficient evidence to show that the barrister had received money into an account controlled by him in New South Wales and that he had received this money in the course of his conduct as a barrister.

92 The Tribunal does not intend to review the evidence on this count in any great detail. The Tribunal finds it difficult to accept the proposition that a person can receive the same money twice in circumstances which could amount to professional misconduct. Further the purpose of the transfer of the funds into the St George bank account is acknowledged by the applicant as being to facilitate the return of the money to the rightful owner. In those circumstances the Tribunal is not prepared to make any finding of professional misconduct or unsatisfactory professional conduct with respect to this ground.

Ground 3 - The Russo Complaint - Evidence

93 The affidavit of Marc De Stoop sworn 1 July 2002 (Exhibit 10) deposes that he was a director of Southern Airconditioning Pty Limited a company now in receivership. In 1994 he became involved in a company known as Vietrade International Pty Limited. During the period 1994 to 1997 he forwarded "to Vietrade International various monies in respect of the proposed company and annexed hereto and marked "A" is a schedule prepared by me indicating the dates the monies were paid, the entity the monies were remitted to and the source of the funds."

94 Annexure "A" shows money being transferred to Vietrade International in a period from January 1996 to December 1996.

95 At paragraph 7 the affidavit deposes that in April 1998 Mr De Stoop became concerned about the money and spoke to a Mr Le. He was informed: "Don't worry, it is with the company's barrister in his trust account and he is holding it on behalf of everybody." He was further told that the barrister was holding the money on our behalf to kick start the business.

96 On 12 April 1998 Mr De Stoop received from Vietrade a fax of a letter from Dr Van Thieu Nguyen. That fax is annexure "B" to the affidavit.

97 In format the fax is similar to the document which is page 6 of the annexures to Exhibit 2. Dr Van Thieu Nguyen is described as "Barrister of the Supreme Court of New South Wales, Australia" but his address in Australia is given as a post office in Kingsford. The letter is headed "To whom it may concern" and states:

"This is to certify that Vietrade Pty Limited of 265 Reilly Street, Surry Hills, Sydney 2000, Australia, has deposited in our trust account the sum of $USD 1 million by certified USA bill. Should you require further information kindly contact the writer at the above phone and fax numbers in the Vietnam office."

98 On receipt of that fax Mr De Stoop telephoned the barrister and had the following conversation:

"My name is Marc De Stoop, I am involved in Vietrade and Mr Le has forwarded to me a letter from confirming that you hold our money in your trust account."
Dr Van replies: "Yes I hold the money in trust for parties until such time as I am authorised to release it."
I then said: "Are you a lawyer?"
Mr Van then replied: "Yes I am a barrister and a solicitor here in Australia. Don't worry, the money is safe."

99 Mr De Stoop did not ask the barrister how much money was held in his trust account or whether the letter annexure "B" was authentic.

100 Mr De Stoop deposes to a further conversation with the barrister which apparently took place in about August 1998 when he arrived in Vietnam. The relevant part of that conversation is that the barrister confirmed: "I have all the funds on deposit. I have US 1 million held in my trust account but I don't have authorisation to release any funds until I got two signatures from directors of Vietrade."

101 Mr De Stoop then deposes that he placed the matter in the care of his solicitor, Salvatore Russo, to attempt to recover the money from the barrister. The affidavit also annexes some letters from Vietrade International Pty Limited. There is no indication in the affidavit as to whether the money was recovered or not. AWB 88 is a facsimile from the barrister's then solicitors which encloses a letter from the barrister. In that letter it is alleged that the document annexure "B" to Mr De Stoop's affidavit is not the barrister's document. The barrister then hypothesises that Mr Le may have been responsible for the issuing of that document. The barrister has also forwarded various documents which are said to be translations of articles from the Vietnamese press.

102 AWB 134 includes at pages 328 to 332 a letter from the barrister. At page 330 it deals with the Russo complaint. The barrister states that he never met anyone from Southern Airconditioning Pty Limited nor acted for them in any capacity. At paragraph 3 on that page he again concedes receiving money from Wallco. At paragraph 5 on the following page he again states that he is not the author of Annexure "B" to the affidavit of Mr De Stoop. He also states that at no time was there to his knowledge any funds deposited in the Vietcom Bank on behalf of Vietrade. At paragraph 6 he says again he has never spoken with a representative of Southern Airconditioning and has not been involved in receiving the sum of $320,000 or any other sum.

Submissions and findings on Ground 3

103 If the telephone conversations set out in the affidavit of Mr De Stoop are accepted they establish that a Mr Le represented the barrister as being Vietrade Pty Limited's barrister. There is an acknowledgment by the barrister that he holds money for Vietrade and that he is a barrister and solicitor in Australia and that the money is safe.

104 Annexure "B" differs significantly from the document relied on in Ground 1. Although the barrister is described as "Barrister of the Supreme Court of New South Wales" his address in Australia is not barristers' chambers and he directs contact to be made via the Vietnam office.

105 The Tribunal is mindful of the fact that the barrister has not filed any affidavit and has not given oral evidence to this Tribunal. The documents tendered by the applicant, however, include an allegation from the barrister that that document is a forgery. The Tribunal notes that the money was paid to Vietrade in 1996. According to Mr De Stoop it was not until approximately April 1998 that he became aware of the existence of the barrister. There is no documentation to show the money passing from Vietrade to the barrister's account nor is there an account number in the document entitled "To whom is may concern". It may be that an expert in handwriting could identify the signature to that document as being the signature of the barrister. The Tribunal, however, does not feel it is qualified to make any such finding.

106 The Tribunal finds, therefore, it is not comfortably satisfied that the barrister has received money in the course of practising as a barrister thereby contravening s 38P of the LPA.

Ground 3

107 The Tribunal therefore dismisses Ground 2 of the Information.

Orders

108 The Tribunal orders:

1. That the barrister Thieu Van Nguyen be found guilty of professional misconduct with respect to the conduct contained in Ground 1 of the Information filed 31 May 2001.

2. Grounds 2 and 3 of that Information be dismissed.

3. The proceedings be stood over to a date to be fixed to allow the Tribunal to hear submissions on the question of costs and penalty.