Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons - [2012] NSWSC 260

Supreme Court

New South Wales

Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons [2012] NSWSC 260
Hearing dates: 3, 31 August 2011
Decision date: 23 March 2012
Jurisdiction: Common Law
Before: Adams J
Decision:
(1)The respondent is guilty of professional misconduct.
(2)At the time of the commission of the misconduct particularised in paragraph 1 (a) of the summons the respondent was not a person of good fame and character.
(3)I decline to make the declaration that the respondent is not a fit and proper person to remain on the local roll of lawyers of the Supreme Court of New South Wales.
(4)The respondent must pay the applicant's costs.

Catchwords: LEGAL PRACTITIONER - misappropriation - convicted of criminal offences - sentence completed - relevance of mental illness now controlled - whether unfit for practice.
Legislation Cited: Legal Profession Act 2004
Cases Cited: Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62
In Re a Practitioner (1984) 36 SASR 590 at 591
McBride v Walton [1994] NSWCA 199 (unreported, 15 July 1994)
Nash v Law Society of New South Wales [1988] NSWCA 100
Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
Category: Principal judgment
Parties: Prothonotary of the Supreme Court of New South Wales (Applicant)
Christopher Ronald Fitzsimons (Respondent)
Representation: P Griffin (Applicant)
J Lyons (Solicitor, Respondent)
Crown Solicitors (Applicant)
Lyons & Lyons (Respondent)

File Number(s): 2010/265686

Judgment

Introduction

Mr Fitzsimons was an articled clerk from 1964 to 1969 and admitted to practice on 5 December 1969 when he was 24 years of age. He was an employed solicitor until 30 June 1971, when he commenced practice in his own account in Chatswood and remained there as a sole practitioner until early 2002 when he merged his practice with another practice in Chatswood, forming a partnership. That lasted six months and he resumed practice on his own account. On 21 December 2005 his practising certificate was suspended and cancelled on 13 December 2007.

The Prothonotary of the Supreme Court applied in the Court of Appeal by summons for declarations that Mr Fitzsimons is guilty of professional misconduct, is not a person of good fame and character and is not a fit and proper person to remain on the local roll of lawyers of the Supreme Court of New South Wales. The following particulars were provided -

(a) Between 25 June 2001 and 27 February 2006 the Respondent engaged in conduct of a dishonest nature for which he was convicted on 17 December 2009 at the Sydney District Court of eight (8) counts of fraudulent misappropriation of money contrary to s178A of the Crimes Act 1900, and three (3) counts of use false instrument with intent contrary to s300(2) of the Crimes Act 1900.

(b) The Respondent misled the Legal Services Commissioner in a letter to him dated 25 January 2006 when, in response to a complaint, he stated that he had paid all moneys to Mrs Roberts.

Consequently, an order is sought that Mr Fitzsimons' name be removed from the local roll of lawyers of the Court. The first particular is not disputed, but issue is taken with the second.

Jurisdiction to exercise of the disciplinary powers of the Court with respect to legal practitioners is assigned by Rule 65A of the Supreme Court Rules to the Court of Appeal. Section 51 (4) of the Supreme Court Act 1970 provides that any proceedings pending before the Court of Appeal may "be remitted to a Division for the determination by trial or otherwise of the proceedings or any question arising in the proceedings".

When the matter came on before the Court of Appeal, Mr Fitzsimons' solicitor indicated that the application was opposed, essentially on the ground that the solicitor is now a fit and proper person because the matters giving rise to the application resulted from a psychiatric condition which is now controlled. The Court of Appeal stood the matter over to a directions hearing before Young JA. His Honour ordered that, in view of the necessity to call evidence and determine the extent, if any, to which the defendant's health problems contributed to the matters complained of, the summons should be referred to a single judge of the Common Law Division for decision. The matter was then listed before me. Young JA confirmed that it was intended that the judge determine all matters arising under the summons. This would have the advantage that each party would be able to appeal if it was felt appropriate to do so.

At the commencement of the hearing, I brought this matter to the attention of counsel. After some discussion, I decided, with the consent of the parties, that I should proceed on the basis of the direction of Young JA, as clarified by his Honour.

Legislative provisions

For the purposes of the Legal Profession Act 2004 ("the Act"), the expression s 496 provides "unsatisfactory professional conduct" -

Includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

Section 497 defines the expression "professional misconduct" as follows -

(1) For the purposes of this Act "professional misconduct" includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For a finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 [suitability for admission] or 42 [suitability to hold local practising certificate] if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

The "suitability matters" referred to in subsection (2) are outlined in section 9(1) of the Act. Relevant to this application are the following:

(a)whether the person is currently of good fame and character,

...

(c)whether the person has been convicted of an offence in Australia or a foreign country, and if so:

(i) the nature of the offence, and

(ii) how long ago the offence was committed, and

(iii) the person's age when the offence was committed.

Fitness and character

There was no controversy about the meaning of the expressions "fit and proper person" and "good fame and character". Neither is defined in the Act, which is scarcely surprising since they encompass notions of fact and degree which cannot be precisely described. Plainly enough, both refer to the moral character of the lawyer and not physical or mental capacity. It is, of course, true that reputation or fame is not the same as character or fitness but, as it seems to me, the question of reputation must be that which is fairly ascribed by reasonable persons having knowledge of the facts. It is also clear enough that the offences to which s 9(1)(c) refer must be those reflecting on the character of the legal practitioner either because of the facts giving rise to the offence or, it may be, simply the deliberate breach of the law. The significance of the offence or offences must be determined by reference to the particular circumstances of each case.

In McBride v Walton [1994] NSWCA 199 Powell JA stated the following (at 61-62) in a passage that, though directed to doctors, has been repeatedly cited in connexion with lawyers -

"To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider -

(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner."

With respect, this is a helpful guide to the appropriate approach for considering whether a legal practitioner has been guilty of professional misconduct within the meaning of the Act.

The offences

On 17 December 2009 Mr Fitzsimons was sentenced in respect of the conduct set out in the particulars. For the purpose of the sentencing proceedings in the District Court an agreed statement of facts was tendered. It was in the following terms -

On 21 December 2005 the Supreme Court of New South Wales appointed a Receiver, Jean Sayer, to the law practice known as C.R. Fitzsimons, the principal of which was the accused Christopher Ronald Fitzsimons. On the same day his practising certificate was suspended. An audit conducted of the limited files and records available to the Receiver and further investigation revealed:

Offence No.11

Sarah Gee Keg nee O'Neill died on 1 October 2000 at the age of 36, intestate. Her husband Rodney instructed his father's solicitor, the accused, to apply for Probate. Being distraught he was unaware of the exact assets of the Estate.

On 10 April 2001 $50,756.86, being State Super benefits, was received into the trust account of Fitzsimons on behalf of Rodney Keg from the Estate. After expenses the remainder of the funds were forwarded to Mr Keg on 30 April 2001 with a letter indicating that the administration of the Estate was virtually finished and enclosing a statement of account. Another payment of $2,228.91, from First State Super, was received by the accused and forwarded to Mr Keg on 6 June 2001. Mr Keg believed the Estate had been finalised and did not have any further dealings with the accused.

On 25 June 2001 $50,625.00 was deposited into the Trust account of the accused, being death benefits from First State Super for Sarah Keg. Mr Keg was not informed this money had been received. On 18 February 2002 a cheque was drawn on the Trust account and a bank cheque issued which was deposited into a Cash Management Trust account of Fitzsimons. The Trust Ledger was finalised "Payment to clients A/C".

On 4 March 2002 the balance of this account was withdrawn and the account closed. $51,412.67 was then used as the opening deposit for an account at Martin Place in name of Christopher and his wife Maria Fitzsimons. $50,000.00 was then transferred to a Commonwealth Marginal Lending Account on 21 March 2002. Mr Keg was informed by Jean Sayer of the existence of the money and received the sum from the Fidelity Fund of the Law Society in 2006.

Offence No. 7

On 19 December 2001 Myra Irene Nettlebeck died and Fitzsimons acted for the Executrix Jean Joss in obtaining a Grant of Probate and in the realisation and distribution of the assets of the Estate. Three beneficiaries of small amounts were named in the will and the residual was to be paid to the Royal Society for the Prevention of Cruelty to Animals, the Royal NSW Institute for Deaf and Blind Children and the Salvation Army. A property at Oxford St, Woollahra was part of the Estate and Fitzsimons advised Joss she could purchase the property for $380,000.00.

The accused had previously acted for Ms Joss and held $171,781.99 on her behalf being part of the Estate of her Father, V. Eddy. This sum was deposited into the "Direct Investment Account" of Christopher and Maria Fitzsimons on 10 May 2002. After further payments on 13 May 2002 Mrs Joss contributed a cheque of $111,351.00 to finalise the Estate. This cheque was also deposited to the Direct Investment Account of the Accused, without the knowledge of Joss. The money received was then expended from the account mainly by Netbank (internet) transfers to other accounts kept by the accused.

The bequests were to be paid and the balance of the Estate was then to be paid to the Charities in the amount of $92,377.67 each, closing the Estate. No letter or financial statement of account was received by Joss.

When questioned by Joss, Fitzsimons sent a 'Professional Costs and Tax Invoice' on 5 April 2005. The covering letter indicated the charities and other beneficiary had been paid as expected and the administration of the Estate completed during May 2002. Having concerns Joss made enquiries with the charities which revealed no payments had been received.

Offences No. 8 to 10

On request on 4 May 2005 Fitzsimons then sent Joss photocopies of Trust cheques 2023 to 2026, from his Solicitors Trust Account 062 140 10072183. The cheques, dated 3/6/02, were allegedly used to fund Bank cheques.

Cheque 2023 listed the bank cheque payee as the Royal NSW Institute for Deaf and Blind Children for $92377.67, cheque 2024 listed payee the Salvation Army of NSW for $92377.67, cheque 2025 the Royal Society for the Prevention of Cruelty to Animals for $92377.67 and cheque 2026 for another beneficiary M Meekings for $3,000.00.

Enquiries revealed on 3 June 2002 the balance of the Accused trust account 062 140 10072183 was $16,484.95, which was insufficient to cover funding of the cheques. These cheques were never presented for payment to the Commonwealth Bank. Notes in the cash book of the Practice record "cheques 2021 to 2026 destroyed for security to prevent accidental writing of cheques." The cheques butts recorded "cancelled closed."

The accused also supplied signed receipts purporting to be from each of the Charities.

The receipt acknowledging the payment of the legacy for the Royal NSW Institute for Deaf and Blind Children for $92377.67, dated 6 June 2002, was signed with an indecipherable signature. Enquiries revealed it was not the signature of the Chief Executive or Legal Officer of the Institute, the only people authorised to sign a receipt. No money was received by the Institute at that time.

The receipt acknowledging the payment of the legacy for the Salvation Army of NSW for $92377.67, dated 11 June 2002, was signed "C. White.". Enquiries revealed it was not the signature of the Legal Secretary of the Institute, the only person authorised to sign a receipt. No money was received by the Institute at that time.

The receipt acknowledging the payment of the legacy for the Royal Society for the Prevention of Cruelty to Animals, for $92377.67, dated 7 June 2002, was signed Richard Walsh. Enquiries revealed there was no employee of the Institute by that name or authorised to sign a receipt. No money was received by the Institute at that time.

Richard Walsh, a client of Marie Fitzsimons who was also a Solicitor, was spoken to and he stated that his signature appears on the receipt. However he denied signing the receipt, explaining Maria Fitzsimons had a stamp of his signature to be used when he was out of the country.

The beneficiary Mary Meekings was spoken in June 2005 by Joss. She stated she had not received a cheque from the Accused in payment of the legacy. On 21 June 2005 Meekings received a cheque from the accused for $3,000.00 and a letter stating he had previously sent a cheque in 2002.

On 29 November 2005 a cheque for $277,131.00 was deposited into the joint account of the accused and his wife. This cheque was drawn on the account of K & D Grubisa. Dominique Grubisa is the daughter of Christopher and Maria Fitzsimons. Three cheques for $92,377.67 were then drawn by Maria Fitzsimons on that date and Bank cheques forwarded to the Charities.

Offences No. 6 & 5

The accused acted on behalf of Malle Poole in respect of the Estate of her parents Linda and Tiit Kroll. On 31 March 2004 $114,985.33 was received into the trust account of Fitzsimons from the Estate. Without her knowledge or consent $50,000.00 was transferred from the trust account on 19 April 2004 to the joint account of Christopher and Maria Fitzsimons. The money was disbursed to Credit cards payments, another joint account of the Fitzsimons and the TAB. A note on the trust ledger of the practice lists the debit as "K. Poole CBA a/c interim distribution."

On 22 April 2004, again without the knowledge and consent of Mrs Poole, $25,000.00 was transferred from the Trust account to a joint account in Cairns held by the Fitzsimons and their daughter Louisa. This sum was disbursed in the same manner. The ledger records "K. Poole CBA a/c transfer interim."

Mrs Poole received a "Professional Costs and Tax Invoice" from the accused dated 6 May 2004. This shows her total payment of a cheque for $108,921.33, with a handwritten note stating "cheque banked into your account." An almost identical "Professional Costs and Tax Invoice" located in the file of the accused's practice shows, "$108,921.33. Less paid - $75,000.00, balance and cheque $33,921.33", apparently to conform to the trust ledger record.

A cheque from the joint account of the accused and his wife for $75,000.00 was deposited into Mrs Poole's account on 10 May 2004, being part of the full payment of $108,921.33 paid on that date. The funds for this cheque were provided by another client Peron P/L.

Offence No.4

Fitzsimons also acted for Mrs Poole and her husband Kenneth in relation to the purchase of a property at 14/344 West Botany Street, Rockdale. About 9 September 2005 Mr Poole gave Fitzsimons a cheque for $30,594.00 payable to the NSW Office of

State Revenue for stamp duty on the property. This cheque was deposited into the Cairns joint account of the accused, his wife and daughter Louisa, on 13 September 2005. Settlement took place on 13 September 2005.

In 2006 the Poole's spoke to Jean Sayer the Receiver of the practice. Mrs Poole realised she did not have the Certificate of Title for their house. An enquiry revealed their property was still registered to the previous owners. Mr Poole contacted the accused. Stamp duty on the property was paid on 14 March 2006 and the Transfer registered on that date. On 16 March 2006 the accused left the Certificate of Title to the property in the house in an envelope.

Offence No.3

On 8 November 2004 $61,750.75 was deposited into the joint account of Christopher and Maria Fitzsimons on behalf of Robert Harkess from the Estate of his Father Robert Harkess. The Solicitors Trust account was not used for this transaction. The credit balance of the account was $2,748.42. Debits totalling $59,200.00 were made, mainly credit card payments. On 16 December 2004 cheques were drawn to pay the beneficiaries of the Estate, being $27,709.38 to D. Harkess and $29,029.37 to R Harkess. These cheques were funded by the proceeds of an advance made to the Fitzsimons by Robin Wilson.

Offence No.2

The accused acted for Roger Huntington concerning the administration of the Estate of his Mother, Doris Huntington with probate granted on 30 November 2005. On 16 December 2005 a cheque for $173,585.78 was forwarded to the accused, representing the accommodation bond paid to the Uniting Church for care. Mr Huntington instructed the accused to use these funds to discharge a mortgage on the family home at 72 Tambourine Bay Road, Lane Cove and transfer the title to him as provided in his mothers will.

On 16 September 2005 the accused had opened an account at the CBA Chatswood, styled C.R. Fitzsimons Trust account, number 10566431. The cheque was deposited into this account on 21 December 2005, and without the knowledge or consent of Mr Huntington. This account was closed by the drawing of a cheque made payable to K & D Grubisa for that amount. This cheque was deposited into the St George account of KM & DE Grubisa.

Offence No. 1

On 27 February 2006, the accused, although his practising certificate was suspended, opened a Solicitors Trust account with the Commonwealth Bank, Kings Cross 10315225. Part of the opening deposit was two cheques received from the Uniting Church, $33,164.42 and $3,258.92 payable to the Estate of the late Doris Huntington. Without the knowledge or consent of Mr Huntington the majority of these funds were then transferred to the joint Cairns and Chatswood accounts. Mr Huntington did not receive this money.

Mr Huntington received no money or accounting documents from the accused. Jean Sayer alerted Mr Huntington to the situation, and the funds were not recovered from the accused. The mortgage on the property of Mr Huntington was discharged on 15 December 2006. The Commonwealth Bank were required to pay money to the Receiver in repayment for these transactions.

On these facts and his pleas of guilty, the solicitor was convicted of the following offences -

Offences, contrary to S.178A of the Crimes Act 1900 (NSW)

1. That on 27 February 2006 at Kings Cross did fraudulently misappropriate to his own use certain money, to wit, the sum of $36,423.34 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to the Estate of the late Doris Catherine Huntington.

2. Between 16 December 2005 and 21 December 2005 at Chatswood did fraudulently misappropriate to his own use certain money, to wit, the sum of $173,585.78 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to Perpetual Trustee Company Limited.

3. Between 8 November 2004 and 16 December 2004 at Chatswood did fraudulently misappropriate to his own use certain money, to wit, the sum of $61,750.75 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to the Estate of the late Robert Brown Harkess.

4.Between 9 September 2005 and 13 September 2005 at Chatswood did fraudulently misappropriate to his own use certain money, to wit, the sum of $30,594.00 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to the NSW Office of State Revenue.

5.That on 22 April 2004 at Chatswood did fraudulently misappropriate to his own use certain money, to wit, the sum of $25,000.00 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to Malle Poole.

6.That on 19 April 2004 at Chatswood did fraudulently misappropriate to his own use certain money, to wit, the sum of $50,000.00 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to Malle Poole.

7.Between 10 May 2002 and 1 June 2002 at Chatswood did fraudulently misappropriate to his own use certain money, to wit, the sum of $283,132.99 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to the Royal NSW Institute for Deaf and Blind Children, the Salvation Army and the Royal Society for the Prevention of Cruelty to Animals (NSW).

11. Between 25 June 2001 and 18 February 2002 at Chatswood did fraudulently misappropriate to his own use certain money, to wit, the sum of $50,625.00 in violation of the terms on which the said Christopher Ronald Fitzsimons so received the said money, the said Christopher Ronald Fitzsimons having received the said money upon terms requiring him to pay the same to Rodney Keg.

Offences, contrary to s.300(2) of the Crimes Act 1900 (NSW)

8. That on 4 May 2005 at Chatswood did use an instrument, to wit, a signed Acknowledgement of Receipt of Legacy from the Royal NSW Institute for Deaf and Blind Children, which was, and which the said Christopher Ronald Fitzsimons knew to be false, with the intention of inducing another person, to wit, Jean Joss, to accept the instrument as genuine and because of that acceptance, to do or not to do some act to that other person's or to another person's prejudice.

9. That on 4 May 2005 at Chatswood did use an instrument, to wit, a signed Acknowledgement of Receipt of Legacy from the Salvation Army signed by C White, which was, and which the said Christopher Ronald Fitzsimons knew to be false, with the intention of inducing another person, to wit, Jean Joss, to accept the instrument as genuine and because of that acceptance, to do or not to do some act to that other person's or to another person's prejudice.

10. That on 4 May 2005 at Chatswood did use an instrument, to wit, a signed Acknowledgement of Receipt of Legacy from the Royal Society for the Prevention of Cruelty to Animals (NSW) signed Richard Walsh, which was, and which the said Christopher Ronald Fitzsimons knew to be false, with the intention of inducing another person, to wit, Jean Joss, to accept the instrument as genuine and because of that acceptance, to do or not to do some act to that other person's or to another person's prejudice.

Overall, Mr Fitzsimons was sentenced to a head sentence of 21 months with a non-parole period of nine months, expiring on 11 September 2010.

Misleading the Legal Services Commissioner

On 15 December 2005 Ms Kathleen Dooley complained to the Legal Services Commissioner about Mr Fitzsimons' conduct whilst acting on behalf of the administratrix of the estate of the late Francis John Haylen. The complaint concerned two matters: firstly, despite requests for an account of the administration of the estate, none had been provided; secondly, there was also alleged a shortfall of about $40,000 in the total distribution to the beneficiaries.

The complaint was, it seems, forwarded to Mr Fitzsimons, who responded on 25 January 2006. After confirming that he acted for Mrs Roberts, the administratrix, the solicitor briefly described the assets and enumerated the beneficiaries. The letter said, "Mrs Roberts gave me specific instructions to pay all moneys to her and that was done". In fact, it appears that, although the bulk of the funds were paid to Mrs Roberts, other substantial amounts were paid to other beneficiaries. It does not appear to be alleged that any of these payments were inappropriate or unjustified. Although the accounts from which they were paid, as listed by the Crown Solicitor, appear to be unconventional and, perhaps, impermissible, this is not made the subject of any allegation of misconduct.

Two allegations are particularised. Firstly, as I understand it, that Mr Fitzsimons did not, when responding to the Commissioner's enquiry, disclose the payments to the other beneficiaries. Since it does not seem to be suggested these payments were improper, the failure to disclose them does not strike me as of particular significance. The Crown Solicitor, in the letter responding to a request for particulars, also alleges that the payments made to those beneficiaries "were taken from funds in the Phillipson Estate" and that Mr Fitzsimons misled the Commissioner by not disclosing this fact. This particular is somewhat obscure. It was not alleged in any part of the statement of facts in the District Court that Mr Fitzsimons had misappropriated funds from either the Phillipson or the Haylen Estates. Nor was any evidence put before me justifying this allegation. In the result, the allegation in respect of this matter amounts to a complaint that Mr Fitzsimons did not inform the Commissioner that he had not only paid estate funds to Mrs Roberts but also to the other beneficiaries.

On the other hand, in his affidavit of 27 January 2011 the solicitor says at paragraph 83 -

"In respect of the further and better particulars supplied by the Crown Solicitor referring to the Estates of Haylen and Phillipson my recollection is that these were two deceased estates where there was discord between the family members as beneficiaries. I wrote to the Legal Services Commissioner on 25th January 2006, a week after being discharged from the Northside Clinic on 18th of January 2006. I have no recollection of whether I had access to the Haylen file in preparing my letter but most likely I wrote it from memory without reference to the file. As the allegation is now one of fact that I paid the Haylen beneficiaries with the proceeds of the Phillipson estate and that gives rise to the allegation of deliberately misleading the Legal Services Commissioner, I say that I had absolutely no intention of deceiving the Commissioner, that I wrote the letter with the intention of being frank and helpful and that I had no idea at all of the link between the Haylen Estate and the misappropriation in the Phillipson Estate."

I note that Mr Fitzsimons was not required for cross-examination on his affidavit.

This appears to me to amount to an admission by Mr Fitzsimons of a misappropriation in connection with the Phillipson Estate. But, if so, it is certainly not an allegation that is referred to in the District Court proceedings or substantively (as distinct from alleging a failure to report it) the subject of complaint in this Court. Perhaps it was simply a mispayment or some confusion on his part. However this may be, I do not see how it can presently be taken into account.

I take the complaint to be, therefore, in substance, that the statement as to the payment to Mrs Roberts was inaccurate and that the solicitor was thus in breach of his obligation to be correct in his communications with the Commissioner. Accepting that the circumstances in which the response came to be made are truthfully stated in the affidavit, this does not seem to me to be a significant matter.

The views of the sentencing judge

It is conceded by the applicant that I should take into account the views expressed by the learned sentencing judge when dealing with Mr Fitzsimons. Her Honour thought that the mode of commission of the offences was relatively simple. Mr Fitzsimons deposited funds received from clients in his trust account. The money was then transferred to another account and thence to two accounts to which he had sole access. The transactions were fully documented and not concealed in any sophisticated way. Some years after the particular offences to which they related, the solicitor prepared false receipts to trick the persons entitled to the funds into believing that the accounts were in order. Unsurprisingly, this was ineffective and eventually led to the discovery of the frauds.

A very significant part of the case in the District Court was the uncontradicted reports from consultant psychiatrists Dr Paul Trott and Dr Jonathan Carne. Her Honour accepted that Mr Fitzsimons' frauds were instigated for the purpose of paying gambling debts. She referred to, and accepted, the following diagnosis by Dr Carne -

"It is more likely that Mr Fitzsimons was experiencing abnormalities in mood, both depression and elevated moods in the period of these offences. The exact relationship between the offence and Mr Fitzsimons' mood state was not able to be established, as Mr Fitzsimons was unable to recall exactly his mood during the specific periods in the offences took place.

...[T]he statement from Mr Fitzsimons' daughter...reinforces the strength of the conclusion that Mr Fitzsimons suffered from long standing bipolar affective disorder as well an alcohol abuse problem.

... Mr Fitzsimons probably suffers from longstanding bipolar affective disorder and alcohol abuse and dependence... his behaviour at the time of the offences was probably affected to a significant degree by abnormalities of mood.

...[It] is perfectly clear to me [that] the behaviour which brought about the gambling problem is a behaviour which, on balance, can be found to be as a result of a manic phase that he was in at the time."

Summarising the psychiatric case, her Honour stated -

The excessive gambling and subsequent misuse of funds seems to me to be a defined feature of the manic phase of the bipolar disorder as described by Dr Carne and Dr Trott. [Their] reports speak of the effects of the mania and the oppressive episodes on the offender's related disorders of alcohol misuse and gambling.

Also supporting this finding is the fact that, as noted by his daughter and Dr Trott, when the offender is medicated he is calm, thoughtful, responsive and responsible. When not medicated he is anything but that. This speaks in itself of a mental illness controlling the actions of the offender rather than the offender choosing to gamble and using his diagnosis as an excuse."

Her Honour accepted that Mr Fitzsimons had demonstrated genuine remorse and had made good (with the support of his family) his defalcations by, in effect, selling all their property, leaving nothing of any substance. Her Honour accepted that he had not sought to hide his assets. She concluded that he "will be a very good candidate for rehabilitation and a very good candidate for a finding that there is very little prospect of re-offending".

These findings were plainly the basis for (and, with respect, completely justified) the very lenient sentence imposed on Mr Fitzsimons.

Medical history

The solicitor's background and history concerning his mental condition are sufficiently set out in the detailed medical reports which have been tendered. In addition, Dr Jonathan Carne and Dr Bruce Westmore gave evidence before me. In substance, as it seems to me, there is no substantial disagreement about the nature of Mr Fitzsimons' mental problems and it does not seem necessary to set out in detail the history upon which it is based. A summary however is, I think, useful.

Mr Fitzsimons recalls that, from the time of his early secondary schooling, he developed periods of depression alternating with periods of emotional elation. These sensations have been with him all his life. In December 2005 he says that he plunged into a most severe period of depression and he had thoughts of murder and suicide. Realising that he had a serious mental problem he went to a longstanding friend who was a psychiatrist, Dr Rowe who saw him at his home and referred him for psychiatric treatment. After a week or so, as I understand it, he was admitted to Northside Clinic as an inpatient on 3 January 2006 and was discharged on 18 January. He was diagnosed with a severe episode of major depression with melancholia and psychotic features. It was thought, though not confirmed, that he might be suffering from bipolar disorder. Dr Lyndon, under whose care he had been admitted, noted that the solicitor "was preoccupied with a sense of shame and guilt relating to what he described as 'misappropriation of funds' approximately four years previously. Mr Fitzsimons also reported a longstanding history of excessive alcohol use consistent with a diagnosis of alcohol dependence. His risk of suicide was assessed on his admission as being very high. A brain scan showed changes consistent with his history of alcohol abuse, consistent with a possibility of early dementia and, more remotely, "possibly consistent with a diagnosis of longstanding bipolar disorder". Dr Lyndon thought that although this latter diagnosis was presumptive only, there was a reasonable possibility that it was the true diagnosis but the presence of co-morbid alcohol dependence meant that it was difficult to interpret the history of mood swings and diagnosed bipolar disorder with certainty. Mr Fitzsimons' early response to lithium augmentation suggested that his treatment prognosis would be reasonably good.

In February 2006, following his discharge from the Northside Clinic, Mr Fitzsimons came under the care of Dr Hugh Morgan. That doctor reported on 3 March 2006. The history given to that doctor by Mr Fitzsimons was that in 2002 his law practice was "on the skids" and, after an unsuccessful short term partnership, he left to practice alone. He told Dr Morgan that he was retained in connexion with a deceased estate with $300,000 to be donated towards charity and that he took the money. He said that he knew "for one millionth of a second" that it was wrong but said he was driven by a compulsion, "the thrill of doing it, taking the money and not being caught, the daredevil factor". Dr Morgan suspected that Mr Fitzsimons was hypomanic at the time. He was very regretful for his actions, the doctor noted, and also felt bad about the impact his behaviour had on his wife's legal practice and his family generally. He said that by July 2005 he was fed up with his practice, the doctor suspecting at this time that he was severely depressed, and felt he needed help and was insecure with a sense of failure. In September 2005, he surrendered his practising certificate to the Law Society but six weeks later changed his mind and arranged for it to be reissued to him. In the last week of November 2005 he sought to surrender his practising certificate again but the Law Society noted that there had been a complaint made against him and he was unable to do so whilst it remained outstanding. (Although this is unclear, it may well be that Mr Fitzsimons was referring to the misappropriations concerning the Nettlebeck Estate, which involved the sum of about $280,000). Shortly after he was advised of the complaint, an investigation ensued by the Law Society. However, Mr Fitzsimons went to the family holiday house in Queensland, leaving his wife at home to deal with the matter. Whilst he was in Queensland alone for three to four weeks he became paranoid, intensely worried, and dyed his hair to change his appearance, also attempting to obtain contact lenses. On 22 December 2005 Mr Fitzsimons returned home. On the previous day his practising certificate was suspended and a receiver was appointed in respect of his practice. As is usual, his personal assets were frozen subject to the ability to withdraw a weekly sum for expenses. On 30 December 2005 he saw Dr Rowe and, as I have related, ultimately was admitted to the Northside Clinic.

Dr Morgan concluded that Mr Fitzsimons had been suffering from Bipolar I illness, characterised by clear manic episodes and major depressive episodes. Dr Morgan relied on Mr Fitzsimons' self-reported history and also information provided by his wife whom, he thought, described "a very typical account of what somebody is like when they are manic". Dr Morgan suspected that Mr Fitzsimons had probably been suffering from a bipolar illness since his late teens or early twenties and believed that his very erratic behaviour towards the end of 2005 and the incident of misappropriation of funds in 2002 were all substantially related to his being mentally ill at the time and substantially interfered with his compliance with the legal requirements governing his conduct as a solicitor including having a substantial impact on his appreciation of legal and moral standards of conduct. Mr Fitzsimons had responded well to antidepressant and lithium medication, which Dr Morgan thought would need to be continued. He thought that he was and would remain well providing he continued treatment. (I note that Mr Fitzsimons had significantly understated both the occasions and the extent of his misappropriations. He also had not mentioned his gambling.)

Dr Morgan reported that Mr Fitzsimons' mental state examination, which occurred on 3 February 2006, "revealed a pleasant man who developed a good rapport who was honest, reflective and remorseful for his actions".

Despite this optimistic picture, Mr Fitzsimons, a little over three weeks later, committed the offence in the first count on the indictment, involving the opening of a Solicitor's Trust account with the Commonwealth Bank for the purpose of depositing two cheques of $33,164.42 and $3,258.92 payable to the Estate of the late Doris Huntington. Most of this money was transferred to Mr Fitzsimons' personal accounts. He was already under treatment and his affidavit does not suggest any relapse until he stopped taking his medication (as referred to above) in mid-2006. At this time, his practising certificate was suspended and, on 21 December 2005 a Receiver had been appointed to his practice. Of course, the inevitable ensuing investigation would have disclosed his defalcations, including this last one. This appears to suggest both that this offence was seriously irrational in the sense that its discovery was certain and that his behaviour was then inadequately controlled by the drugs. However, it might also suggest that the misappropriations were far less a result of his mental illness than he and the medical evidence suggests. I note that this chronology was not referred to in any of the medical reports, although Dr Trott, Dr Carne (who specifically mentioned, but without comment, the 2006 offences) and Dr Westmore - all of whose opinions are discussed below - nor was it mentioned by counsel in submissions as a matter that should lead me to doubt the significance to be attributed to medical opinions.

Mr Fitzsimons has not adverted to the 2006 offences in his affidavit and attributes all his defalcations to his mental condition. However, he does not make a statement one way or another about his condition at the time, except by implication that he felt much improved. Of course, he might well not have been a good judge of this if he were manic, or somewhat manic. As I have mentioned, he was not cross-examined on his affidavit. Nor was this matter the subject of cross-examination of either Dr Carne or Dr Westmore. Of course, I have no medical expertise and thus am unable to assess whether, at the time, his medication in fact stabilised his condition without intermittent relapse. Absent the considerations that arise from the omissions to cross-examine to which I have referred and the patent irrationality of the misappropriation when discovery was not only inevitable but imminent, the evidence on the whole could lead to the conclusion that, more probably than not Mr Fitzsimons was not significantly affected by his bipolar disorder at the time. I bear in mind also that the plaintiff bears the onus of proof. In the result, although I have real doubts about this matter, I am not prepared to draw an inference adverse to Mr Fitzsimons.

Mr Fitzsimons saw Dr Clive Allock on 1 and 15 February and March 2007 specifically to deal with his gambling issues. He told Dr Allcock that he had started gambling in his mid-teens until the age of 19, then resuming betting at about 24 years of age for a short time before restarting in the late 1980s with small bets through a telephone account. In the early 1990s he started to gamble on the horses using a computer program with which he had some successes. He then started to lose, at first hundreds of dollars a week and then larger sums as his betting increased as an attempt to make money. He did not feel it was as yet a major problem. He opened a TAB telephone account involving, it seems, sums of up to $5,000 and then $10,000 a week, concealing the extent of his gambling and especially the losses from his family and friends. He disclosed that he gambled as a way of escaping from problems. He lied to family members and others to conceal the extent of his involvement, committing illegal acts including fraud and embezzlement but yet denying that he had a pre-occupation with gambling or needing to gamble with increasing amounts of money to achieve the desired excitement. Mr Fitzsimons told Dr Allock that he had not gambled since June 2006 and felt no pressure or urge to gamble at this time.

Dr Allcock concluded that there was no doubt that a diagnosis of pathological gambling could easily be sustained "in recent years" and had significantly contributed to the decisions that Mr Fitzsimons made in terms of taking money. He thought that it was very likely, in light of his indication that he had now no urge to or interest in gambling, that it was very likely that he would have "a good prognosis on the gambling front". Dr Allcock noted, in this respect, that were other psychological issues and, if they increased in intensity then he would return to Dr Lyndon or the Northside Clinic for further assistance.

On 30 November 2009 Dr Paul Trott, who was then Mr Fitzsimons' treating psychiatrist, provided a report for the purpose of the sentencing proceedings. This report was based on his -

...having regular and recent reviews of [Mr Fitzsimons'] mood, mental state and level of functioning....[which enabled him] to gain an extensive and longitudinal psychiatric history concerning Mr Fitzsimons mental functioning, as well as providing continuing care.

Dr Trott's report briefly outlines the evolution of Mr Fitzsimons' major depressive episode which led him to consult Dr Rowe and then Dr Lyndon and admission to the Northside Clinic. It appears that after Mr Fitzsimons' consultation with Dr Allcock, he (wrongly) concluded that his gambling addiction was his main problem rather than that of bipolar affective disorder or other affective illness so that, feeling "well", Mr Fitzsimons discontinued his psychotropic medications and suffered an illness relapse which necessitated his readmission to the Northside Clinic. He was then again stabilised on lithium carbonate (a mood stabiliser) and Fluoxetine (an SSRI antidepressant). However, Mr Fitzsimons again discontinued his medication during 2008 because he felt "mentally well" and suffered a subsequent decline in mood, becoming quite dysphoric and negative in his outlook with emergent pessimism and hopelessness as well as entertaining notions of suicide and homicide. He said that this relapse stemmed from continuing stresses involving an inability to meet financial commitments, which had resulted in the forced sale of properties. He was admitted to the Cairns Base Hospital psychiatric unit where he was stabilized again on lithium carbonate. Dr Trott observed that Mr Fitzsimons' "gambling problem" may be separate to or part of his bipolar illness (hypomania).

Dealing with the misappropriations, Dr Trott referred to Mr Fitzsimons' acknowledgment of the wrongfulness of his actions but described "a sense of excitement" and "thrill" with his "feeling somewhat driven and compelled". Dr Trott also referred to Mr Fitzsimons' grossly excessive alcohol consumption. He described a history of recurrent cyclical hypomanic and major depressive states since especially the mid-1990s.

Dr Trott's diagnosis was that Mr Fitzsimons had a chronic moderate to severe Bipolar Affective Disorder Type II, as defined in DSMIV, which had been partially treated, manifesting recurrent major depressive episodes and in-between hypomanic states, the clinical picture being complicated by a co-morbid chronic moderate alcohol abuse as well as a gambling addiction, though these, according to the history given by Mr Fitzsimons, were now in remission.

Dr Trott described the course of Mr Fitzsimons' condition since February 2009 and the medical treatment provided to him which, with adjustment, had led gradually to improvement of his mood and mental well-being, including a resolution of various depressive symptoms and a loss of the suicidal and homicidal ideation together with a normalisation of his neuro-vegetative function.

Dr Trott also noted Mr Fitzsimons' expression of deep regret and remorse concerning his actions, especially in betraying the trust of clients and the subsequent harm that he had caused. Although not well expressed, it seems to me that Dr Trott accepted that Mr Fitzsimons Bipolar Affective Disorder (with alternating Hypomania and Major Depression) as well as former alcohol Abuse and gambling addiction resulted in a chronic pattern of impulsivity and recklessness (of spending and gambling) and his failure to fully consider the consequences of his subsequent miscreant actions, especially upon his clients, his legal practice, the legal profession and his family.

As mentioned, Dr Jonathan Carne reported on Mr Fitzsimons' condition on 4 December 2009 for the purposes of the sentencing proceedings. Dr Carne had available to him considerably more information about Mr Fitzsimons' criminal misappropriations. He obtained the following history -

"Review of Mr Fitzsimons Level of Functioning During the Period of his offences

The offences took place during 2002, 2004, December 2005 and February 2006.

Mr Fitzsimons told me that he lost interest in his legal practice in 2002 and went into partnership with a colleague nearby in Chatswood, however this did not work out and he terminated the partnership and returned to his own practice in which his wife who qualified as a solicitor in 1990 also worked.

2002 offence

During this period Mr Fitzsimons told me he was depressed about his unsuccessful new legal partnership which he felt was not working.

In 2003, the year in which no offences were committed, Mr Fitzsimons told me he left the partnership. He felt the pressure of working in a bad partnership had been relieved. He continued gambling.

2004 offences

Mr Fitzsimons told me he committed these offences to pay gambling debts.

2005 offences

Offences committed to pay gambling debts.

2006 offences

These offences were also committed to pay gambling debts."

Dr Carne gave a diagnosis of bipolar affective disorder (manic depression) with periods of depression and mood elevation, probably longstanding but with an unclear date of onset together with alcohol abuse/ dependence. He concluded -

"Mr Fitzsimons probably suffers from longstanding Bipolar Affective Disorder and alcohol abuse/ dependence. His behaviour at the time of the offences was probably affected to a significant degree by abnormalities of mood although, because of Mr Fitzsimons' poor recall of his mood states during the various periods of offending it was not possible to draw a direct causal relationship between mood and behaviour."

Dr Carne concluded in addition that -

"If Mr Fitzsimons continued his psychiatric treatment and abstinence from alcohol he thought it unlikely that any re-offending would occur. "

On 9 May 2011 Dr Carne provided a new report based upon a number of consultations he had with Mr Fitzsimons between 23 November 2009 and 4 May 2011. As I have mentioned, the first consultation was for the purpose of preparing a report for the sentence proceedings. Subsequent consultations were for treatment of Mr Fitzsimons' condition.

Dr Carne confirmed his initial diagnosis of longstanding Bipolar Affective Disorder and alcohol abuse/ dependence. He was still of the view that Mr Fitzsimons' behaviour at the time of the offences was probably affected to a significant degree by abnormalities of mood although, as he had earlier stated his poor recall of his mood states during the offending periods meant it was not possible to draw a direct causal relationship between mood and behaviour. Dr Carne pointed out that Bipolar Affective Disorder is not reversible although it responds to treatment which, when effective, abolishes symptoms such as mania, depression and the cyclical disturbance of mood which are typical of the illness. However, even full adherence to all treatment may not prevent relapses although they are less likely. He thought that, absent gambling and alcohol misuse, there is good prognosis for long term stability providing he continues to comply with psychiatric treatment and has domestic stability and social support. As to whether on clinical grounds he is employable in a legal practice, Dr Carne thought that if Mr Fitzsimons remained stable and he stays within the area of his professional ability his answer is "yes". So far as re-offending is concerned, providing he remains psychiatrically stable he thought that, in light of his remorse and acceptance of responsibility and his wish to rehabilitate himself, there is little likelihood of re-offending. Dr Carne felt that he could say that Mr Fitzsimons shows "clear and convincing evidence of rehabilitation".

Dr Carne gave evidence before me and was cross-examined by counsel for the Prothonotary. He confirmed the opinions given in his reports and that he was continuing to treat Mr Fitzsimons. He said that during the period of treatment Mr Fitzsimons has been clinically stable and it appeared that, at present at least, his medication is effective and appropriate. He is seeing Mr Fitzsimons between monthly and bi-monthly and would expect this to be so for about two years. If his stability continued the frequency of assessments could be reduced providing he regularly sees a general practitioner. Dr Carne made the point in cross-examination that he did not actually diagnose bipolar disorder in Mr Fitzsimons. He said that he had been presented with a man diagnosed with bipolar disorder by two or three different psychiatrists and who was stable at the time he saw him. He accepted the diagnosis based upon those made by previous treating psychiatrists, whose analysis seemed on the face of it to be correct. Moreover, it was confirmed by the information provided in the statements of his daughters. Dr Carne said, in cross-examination, that he did not feel he could go far as to say that, but for Mr Fitzsimons' mood disorder, he would not have committed the offences but nevertheless it had a role to play, that is, there was a causal connection. However, it was necessary to be cautious in this respect because there were gaps in the history and the additional complication of Mr Fitzsimons' alcohol abuse during the relevant period. As the doctor commented, quite fairly, it is scarcely possible to disentangle the causative factors.

Dr Carne was taken to Dr Westmore's opinion that it was Mr Fitzsimons' gambling disorder primarily which caused his professional conduct, although the mood disorder and alcohol abuse may have played some role. Dr Carne thought that the gambling behaviour resulted from the bipolar disorder. He explained that gambling alone is not necessarily the result of a mental illness but the severity and irresponsibility of the gambling and of the consequences were the result, in his view, of the abnormal mood states caused by Mr Fitzsimons' bipolar disorder. Asked whether, as a result of his disorder, Mr Fitzsimons was able to distinguish between right and wrong, Dr Carne replied that he could not say what Mr Fitzsimons' mental state was when he was committing the offences. He tried to obtain a history covering that period but Mr Fitzsimons was not able to recall exactly how he felt at that time. He was asked whether he would expect Mr Fitzsimons to be able to recall that he had in 2001 and mid-2002 misappropriated the sums of about $50,000 and $280,000. Dr Carne said that he was treating Mr Fitzsimons over a period of 10 months when he was well but it would be unusual for a person suffering from a manic episode not to be able to remember a significant event such as a course of action involving misappropriation of funds. However, this involved speculation since every individual is different and the effects of an illness vary from person to person. In addition, Mr Fitzsimons had a severe alcohol problem as well as his bipolar disorder and it is quite clear that excessive consumption of alcohol leads to many deficits and failure to record or recall memories.

The Prothonotary called Dr Bruce Westmore, who examined Mr Fitzsimons at the behest of the Crown Solicitor. This examination occurred on 9 June 2011. I do not need to repeat the history taken by Dr Westmore and set out in his report. Although in some respects it is more detailed than other histories and, perhaps more focused, no doubt a reflection of the advantage that Dr Westmore had from reading the other reports, I do not think it differs significantly from those previously given. So far as psychiatric diagnostic issues are concerned, Dr Westmore's conclusion is at one with the other doctors, namely that Mr Fitzsimons has Bipolar Affective Disorder, which is currently in remission as is his gambling disorder and alcohol abuse. He thought that it is unlikely that Mr Fitzsimons suffers from Antisocial Personality Disorder, despite the nature of the offending behaviour. He thought his general level of functioning is likely to have fluctuated significantly depending on his mood state, his gambling addiction and his abuse of alcohol.

Dr Westmore agreed with Dr Carne that it was not possible to establish a positive relationship between the Bipolar Affective Disorder and the offending behaviour. Otherwise, Dr Westmore agreed with Dr Carne's opinions about Mr Fitzsimons' present condition and the possibilities of relapse. Dr Westmore added the following -

"The nature, extent and chronicity of his previous gambling behaviour which was associated with serious ethical breaches in his practice of law obviously represent a serious concern. At this time, he reports that he is not gambling. I would not accept that there may be some relationship between his previous mood disorder, alcohol abuse and gambling although the gambling disorder is a unique illness in and of itself. I would recommend that he attend Gamblers Anonymous or a similar group on a long term basis. I accept that this can be difficult for some patients but it does provide them with additional support and reality testing in relation to their previous problems."

Dr Westmore expressed the view that it was Mr Fitzsimons' "gambling disorder primarily which caused his professional misconduct... [though] mood disorder and alcohol abuse may also have played some role in his serious error of judgment and professional misconduct". As to Mr Fitzsimons' level of insight into the gravity of his misconduct, Dr Westmore pointed out that he had only seen Mr Fitzsimons on one occasion. To the extent that he could comment on this aspect, Dr Westmore thought that he has at least moderate and probably greater insight into the gravity of his misconduct. Dr Westmore summarised his report in this way -

It would seem that this man was in the past an energetic and committed lawyer but that his various medical problems affected his capacity to practise both mentally and in a practical sense. It is likely he his highly experienced and he appears to be highly motivated to return to make some contribution to the law. I think he does have that potential and capacity but that he will require support and supervision if that occurs.

In the course of his evidence, Dr Westmore described Mr Fitzsimons' gambling problem, as severe and extreme, indeed "very" extreme. He said that the preoccupation with gambling suggested that it was a primary and unique problem but that he nevertheless agreed it was related to depression in the sense that people who are depressed, it is known, have a propensity to gamble.

In his affidavit of 11 May 2011 Mr Fitzsimons stated -

"I now recognise that my bipolarity caused me serious errors of judgment which triggered my professional misconduct giving rise to my criminal convictions and imprisonments. I recognise too that I have been addicted to alcohol and gambling which two vices caused me to depart from responsible behaviour and into a horrid world of lies, deception and ultimately criminality. I accept full responsibility for my misconduct and criminality."

It appears from this passage that Mr Fitzsimons accepts responsibility for his wrongdoing but believes that it arose from "serious errors of judgment" caused by his bipolarity. His acceptance of "full responsibility" for his wrongdoing is, to this extent, qualified. I make this observation in passing since Mr Fitzsimons was not required for cross-examination and it was not suggested to me that I should act on the basis that he did not fully acknowledge the moral shortcomings which, at least in part, contributed to his conduct. He has not suggested - nor could it be suggested - that, at the time he committed the misappropriations and the attempts at cover up, he was not fully aware that what he was doing was both seriously immoral as well as illegal. I do not think it can be seriously doubted that his judgment was warped by his mental condition and his gambling and alcohol addictions.

The failure to report

I raised in the course of Dr Westmore's evidence the point that, during the entire period of his misconduct there were times when he would have appreciated that he had done some very wrong things and asked -

"Q. Therefore his decision to do nothing about it when he had a positive duty as a legal practitioner... there must have been times when he must have been - of course it is all relative - but relatively in his right mind and known what he had done and yet decided for whatever reason not to correct it. Fear of consequences is a perfectly rational response, so it is not irrationality that would lead one not to do anything about it?

A. No. I agree."

It seems to me that the evidence suggests, as I put to Dr Westmore, that there were times when the applicant was in his right mind, if not entirely so, and knew that he had committed serious offences. Yet, he not only did not attempt to make good his thefts, he did not inform the Law Society (as was his independent duty) of what he had done. Since, ex hypothesi, this silence was not the result of his illness, it indicates to my mind a significant failing of moral character that reflects upon the question whether he is a fit and proper person to remain on the role.

However, this issue was not a part of the particulars relied on by the Prothonotary nor a matter raised by Mr Griffin with Dr Carne or, for that matter, Dr Westmore. During submissions I raised the problem specifically with Mr Griffin in the following way -

"HIS HONOUR: I don't think it could be doubted he was guilty of professional misconduct. It seems to me the real issue is the significance of the psychiatric evidence and quite what is meant by present unsuitability or present suitability.

GRIFFIN: Indeed and to put it in context, the primary submission by the applicant is that the conduct contended for by the respondent makes him permanently unfit to remain on the roll.

HIS HONOUR: There are two aspects of the conduct. The first one is the conduct itself. Accepting that, for the sake of discussion, it would not have occurred but for his mental condition. I think the evidence is clear that there were substantial periods of time when he was quite, how shall I put it, not in command of himself.

I think I would infer that there were times he knew that he had committed crimes and knew that he had a duty to disclose them and yet he did not do so. So that even accepting the causal relationship between the offences themselves and his psychiatric condition, there appears to be, I haven't of course decided anything but there appears to be in the psychiatric evidence a high likelihood, perhaps a certainty, that he was aware of the crimes and aware of his duty to disclose them and did not do so and that is a very significant professional and indeed moral failure. It is not for me to judge that. I can understand why you would be afraid of doing so and worried about doing so and the destruction to your family.

All those motives, of course, are powerful ones and would affect that person but he was a person who had a duty and his duty required peremptorily and unconditionally that those personal considerations not affect his performance of it.

Since that failure occurred at a time of a degree of normality in which his ability to understand what was happening and was the position was not significantly affected, that provides a secondary serious question about his suitability which, itself, is an independent ground of misconduct and I am not sure as I sit here whether you have particularised it but if you have not if nevertheless strikes me, subject to your submission on the matter, as a matter necessity to be taken into account when considering what appropriate orders should be made and whether he has suitability and certainly it militates against such a finding.

GRIFFIN: And indeed, your Honour, there is a third aspect which is the allegation of misleading the Legal Services Commissioner."

During submissions made by Mr Lyons on Mr Fitzsimons' behalf the following exchange occurred -

"HIS HONOUR: What do you say however about his undoubted duty to inform the Law Society of his defulcation.

LYONS: I go back to my introduction your Honour and the quote from Dr Westmore basically when he said what I think was probably impaired was his capacity to care. He knew for a moment he was wrong and it just went ta ta. We have admitted all those things your Honour. We have said look we have done these very dishonest things, we are embarrassed. We have been to gaol.

HIS HONOUR: You see the problem is, as I see it, that there is a complete explanation, you see, accepting for a moment and I am not sure it goes that far, but accepting for a moment that it is the combination of his bipolar condition and his addiction which explains why he gambled and why he took the money. He was not, his mind was not disordered for the entire time. He was in practise after all, at a time when his mind was not disordered, he must have known of his thefts and his duty to disclose them.

As to the duty to disclose them, the least charitable view is that he decided not to disclose them, not because he didn't know they were wrong, not because he didn't care, but on the contrary, because he did care and he did not wish to suffer the consequences of what he had done. An entirely rational but fundamental breach of duty. Now what is the answer to that analysis of the material?

LYONS: I don't have the answer to that other than a quotation from Dr Westmore.

HIS HONOUR: I must say, I will read his evidence again. I don't think Dr Westmore answers that problem. He accepted that there were times when his mind was not disordered and that is plainly true, or significantly disordered. He was able to get on with the ordinary things of life. That is plain. He was able to conduct a law practise with apparent competence. That is plain also. But there was, I don't wish to be harsh about it, a moral lacuna which surrounded these thefts and I must say, that is a difficulty that I have in accepting that he is a fit person to be a solicitor. That is because the thefts can be, on one view of the evidence, explained. But I do not see how that explanation explains the breach of duty to disclose them.

Now, I understand it is not neat, the condition doesn't start then and stop neatly. But we are dealing with a long period of time during which it is plain he must have been in his right mind.

LYONS: May I ask your Honour a question, when you say a duty to declare, you mean ring up the Law Society and say "I have just stole $400,000 from the trust account".

HIS HONOUR: Yes. Inescapable, is it not?

LYONS: I just can't imagine anyone doing it your Honour.

HIS HONOUR: I can, and I happen to know it has been done.

LYONS: Not at the time it was taken.

HIS HONOUR: Well no, but the person comes to realise the seriousness of what they have done and comes forward and confesses. Now that has happened. But whether it has or not, there is an undoubted duty to do so, is there not?

LYONS: There is a duty, yes.

HIS HONOUR: This is not a subject capable of debate, and it is a duty to disclose theft made by other solicitors of which you are aware and your own. It is an important duty because it is often difficult, of course, to discover and so on.

LYONS: Yes.

HIS HONOUR: It is a part of the requirements of integrity. And I have difficulty in seeing how the medical evidence explains that aspect of the case. I understand, of course, all the human reasons that would lead someone to hesitate before taking such a step of disclosure. But as those reasons become powerful, so must the insistence on the duty itself be unqualified. You see the reasons.

LYONS: Yes.

HIS HONOUR: That is, as I see it as I sit here now, of course I will read all the material.

LYONS: The integrity your Honour, if I may, once all this came to a smashing end they immediately set about selling all their assets to repay these monies. So there is integrity your Honour. It isn't void.

HIS HONOUR: I am not suggesting your client is utterly void of integrity Mr Lyons, I wouldn't say that for a moment. That is not the question.

LYONS: Thank you, your Honour.

HIS HONOUR: There is something that concerns me, it is said in P and has been repeated but I am not sure what it actually means. That is you have to be satisfied that the person or the solicitor is permanently unfit. How can you ever be satisfied of that?

GRIFFIN: You can't in one sense because it would involve a degree of speculation.

HIS HONOUR: What is meant by--

GRIFFIN: I take it to mean that the behaviour is such that one cannot at the moment foresee the person going from unfitness to fitness. But it shouldn't be read literally in the sense that given enough time and enough behaviour.

HIS HONOUR: It is a gloss on the Act.

GRIFFIN: It is.

HIS HONOUR: I am not sure it is the Act, it is the rule, the rule is whether someone is fit or unfit. I suppose if someone were momentarily unfit I could understand why you wouldn't say they were relevantly unfit.

GRIFFIN: I suspect it is a condemnation phrase grown out of seeking to express a level of--

HIS HONOUR: I could understand behaviour so egregious, take this case, if there were absolutely no evidence whatever of any mental condition at all, it was simply naked greed and dishonesty, well, one simply could not imagine a solicitor who had done that ever been being able to get back on the roll.

GRIFFIN: Except to say the legislation doesn't prohibit application for restoration. It may be it is hopeless but nonetheless there is nowhere, a legal or medical field where a professional who's struck off and indeed medical field it is common to nominate a period of time in which they cannot make an application.

HIS HONOUR: I wouldn't, that is not appropriate here, is it?

GRIFFIN: No.

HIS HONOUR: Would you mind just taking me to the revisions of the Act which govern my own discretion or jurisdiction, do you have it there?

GRIFFIN: I don't have the Legal Profession Act with me.

Can I say one thing picked up by Mr Lyons, where he said Mr Fitzsimons "just didn't care", can your Honour look at page 10 which repeats the statement of facts before the District Court. If you look down the middle of the pages there is a heading against number one on page ten [a reference to the offence committed in February 2006, after the appointment of the receiver].

HIS HONOUR: Yes."

Mr Lyons did not suggest that the issue of failure to report was unfair or unfairly raised at a late stage. Nor did he seek an adjournment to enable further evidence to be obtained, either by his client or the doctors.

Although it is somewhat unsatisfactory to deal with this issue rather late in the piece, it was raised in sufficient time for Mr Fitzsimons' solicitor to have made some application if he felt it was in his client's interest to do so. Moreover, he made submissions as to the matter. I have come to the view that it is necessary to take it into account on the issue of Mr Fitzsimons' fitness for practice.

Gambling Addiction

In his affidavit of 27 January 2011 Mr Fitzsimons deposed that, in 2006 or 2007, he entered a gambling addiction treatment program at St Vincent's Hospital, attending once a week for 13 weeks. He attended the first six appointments with a psychologist who then terminated his enrolment and referred him to Dr Allcock at the St John of God Hospital, to whose report I have referred. Mr Fitzsimons says, in accordance with his advice, he stopped gambling. He did not enter any TAB outlets, buy lottery tickets or similar gambling products and voluntarily agreed with his wife that he should not be allowed access to or carry any money at all. By following Dr Allcock's advice of carrying no money, having no credit cards and doing shopping with a fixed sum of money given to him by his wife, returning home with the merchandise, the change and the receipt for payment to prove what had been spent, he mustered the will power to stop gambling.

Alcohol

Mr Fitzsimons says that since 2006, following diagnosis of and treatment for his mental condition, he has significantly reduced his alcohol intake. He says that he does not now feel obliged to drink and estimates that he now has two glasses of wine with his evening meal maybe twice a week. As I have mentioned, there was no cross-examination of Mr Fitzsimons and, considering the other evidence in the case, it seems to me that I should accept this testimony.

Present position

Since 2006 Mr Fitzsimons was placed on welfare benefits and given a New Start Allowance without the requirement to report his activities or seek employment. In February 2008 he applied for and was granted a disability support pension on the ground of mental illness and he is still in receipt of that pension. As I understand it, he is not presently employed. Of course, Mr Fitzsimons was in prison between 12 December 2009 and 11 September 2010 and on parole for a further period of one year, requiring him to accept supervision from the Probation and Parole Service. There is no suggestion that he had ever been in breach of parole. Mr Fitzsimons says that he wishes to return to Cairns and take employment there with the Queensland Employees Practising Certificate or alternatively to hold a Queensland Volunteer's Practising Certificate and assist the communities on Cape York Peninsula in community legal centres. He says that, if he is permitted to remain on the roll, he undertakes never to apply for an unrestricted practising certificate and never to have any involvement with trust moneys.

Amongst other things, Mr Fitzsimons' elder daughter with whom and her husband and three children Mr Fitzsimons has lived whilst on parole deposes that he is taking his lithium medication daily and there has been a noticeable change in his conduct and behaviour patterns. She says that he is well mannered, caring, loving and a pleasure to be with, which characteristics "are completely opposed to his lifelong erratic behaviour". She says he is not the same man that she knew very well before he undertook psychiatric treatment and medication but is "a different man now and a much better person". So far as his drinking is concerned, she says that Mr Fitzsimons no longer drinks heavily or daily although he has a glass or two of table wine with the evening meal twice a week and sometimes will not drink for a week or more at a time. She says "certainly the alcohol dependent father I knew has been transformed into a sensible, reliable, sober and trustworthy person". She confirms that Mr Fitzsimons does not now gamble, she has not seen him with any gambling sites open on his computer and from time to time she subtly checks with him about the urge to gamble. This deponent was not required for cross-examination on her affidavit.

Lastly, I should mention that as a result (as I understand it) of Mr Fitzsimons' conduct he and his wife separated. She was subsequently diagnosed with breast cancer which required a number of operations. On 17 May 2011 she underwent her fifth and final operation, which was successful. Mr Fitzsimons says that he has been caring for his wife every day since her discharge from hospital and hopes for a reconciliation. He has acknowledged that his actions had a catastrophic effect on his wife's life including her loss of her ability to practise.

The attitude of the Law Society

When this matter was called on before the Court of Appeal, McColl JA brought to the attention of Mr Griffin the views of Young JA expressed in Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 at [27] suggesting that in the case such as this the Law Society should present its considered views to the Court as to whether the practitioner is a fit and proper person to remain on the roll. Mr Griffin informed the Court of Appeal that "in broad terms" the Law Society was "supporting this application to strike off and... were adjourning their proceedings [in the Administrative Decisions Tribunal] pending the decision of this Court." I am not aware of the material that was available to the Law Society although I assume that it did not include Dr Westmore's report. In the result, I think it right to act on the basis that the Society has indicated its support for the action taken by the Prothonotary, although that it has not seen fit to make a substantive submission as to the material considerations rather limits the utility of this expression of opinion. Furthermore, its attitude may well have been affected by the allegation as to misinforming the Commissioner, which, as stated above, is not, in my view, of any significance.

Discussion

Firstly, for the reasons given, I think that complaint about the communication with the Commissioner should be dismissed.

A careful consideration of the medical evidence leads me to conclude - and I think this is consistent with the view expressed by the sentencing judge - that, were it not for the combination of his addictions with his mood disorder and excessive drinking, it is likely that Mr Fitzsimons would not have committed the misconduct that gave rise to the offences and thus his convictions. However, the misappropriations were repeated over some years in very substantial amounts by methods that, if not complicated, nevertheless required a not insubstantial degree of planning. Moreover, there were also methodical attempts to cover up at least one of them. Despite Mr Fitzsimons' tragic mental illness that was, I would accept, playing a significant role in his behaviour, these crimes necessarily involved a significant degree of moral turpitude.

There can be no doubt that the conduct involved in each of the offences for which he was convicted constituted serious professional misconduct. To adopt the language of Clarke JA in Nash v Law Society of New South Wales [1988] NSWCA 100 at 7, "the illness stands in mitigation, and in partial explanation, of those breaches." To these matters I feel impelled to add the failure to report, when he was in a fit state to do so, his actions to the Law Society. Accordingly, the declaration as to professional misconduct should be made.

It does not follow that the declaration as to fitness and the order for removal should be made. This depends on Mr Fitzsimons' present fitness to remain on the roll. I am not in any sense called upon to punish Mr Fitzsimons. The jurisdiction being exercised by the Court is protective. Of course, the past misconduct may demonstrate that he "lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner": Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 per Giles JA at [14] citing In Re a Practitioner (1984) 36 SASR 590 at 591; Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 at [89], [113], [125]. His Honour went on to say -

"But if, for example, the past conduct is sufficiently explained as the product of psychiatric illness now controlled by medication, it may be that the protective function of the exercise of the Court's jurisdiction is met by less than unalloyed unfitness and removal..."

Giles JA noted that although the reports were not uniform, there was agreement that the practitioner's bipolar disorder in that case contributed to his misconduct, with different emphases on the extent of contribution. In the result, however, Giles JA concluded that "absent more full assurance that the opponent's misconduct was attributable to psychiatric illness and will not recur" and in light of the fact that the practitioner had not appeared and contended for a regime by which he could remain on the roll subject to supervision and medical monitoring, the declaration as to unfitness and the order for removal should be made. It appears that the practitioner's condition was "on the milder end of the spectrum" as he recovered without treatment with mood stabilising medication at any stage.

Conclusion

I accept that the present state of Mr Fitzsimons' mental condition means that it is unlikely to have an adverse effect on his conduct. He is to be commended also for successfully dealing with his gambling addiction and alcohol abuse for something over six years, despite short term relapses when he has gone off his medication. However, in light of the lack of satisfactory explanation of and justification for his omission to report to the Law Society as mentioned above, I am not satisfied that Mr Fitzsimons' mental condition was such as to excuse, in a professional sense, his misconduct.

Taking up the issues referred to in McBride, the misconduct can be satisfactorily explained only to some, though a significant, extent as an error of judgment warped by his mental illness, rather than a defect of character; the intrinsic seriousness of the misconduct directly impinges on his fitness to practise law, since it arose in the context of doing so; the misconduct was not an isolated episode but it was to some extent atypical or uncharacteristic of the practitioner's normal qualities of character, given the his mental illness; the motivation which gave rise to the misconduct, except for the non-reporting, was the addictive need to gamble, to a significant degree exacerbated by his mental illness; the underlying qualities of character shown by previous and other conduct were basically sound, except for the moral turpitude demonstrated over a number of years not only by the defalcations themselves but also by his failure to report them; in respect of the practitioner's conduct post the misconduct, he has succeeded in dealing with his gambling and alcohol addictions, has shown genuine remorse and contrition, and has repaid with substantial difficulty the persons from whom he stole.

The overall effect of the evidence, both favourable and adverse, has persuaded me that Mr Fitzsimons now is very different from the person he was when he committed his criminal offences, both in terms of his mental health and, more significantly, in his moral character. Weighing up all these considerations, I have concluded (adapting the language of Giles JA in Farran, cited above) that, although not all "of his past conduct is sufficiently explained as the product of psychiatric illness now controlled by medication, it may be that the protective function of the exercise of the Court's jurisdiction is met by less than unalloyed unfitness and removal".

I make the following declarations -

(1) The respondent is guilty of professional misconduct.

(2) At the time of the commission of the misconduct particularised in paragraph 1 (a) of the summons the respondent was not a person of good fame and character.

(3) I decline to make the declaration that the respondent is not a fit and proper person to remain on the local roll of lawyers of the Supreme Court of New South Wales.

(4) The respondent must pay the applicant's costs.

I am minded to make an additional declaration to the following effect -

Mr Fitzsimons is not fit to practise as a sole practitioner or in partnership or as a solicitor having access to a trust account and that any practising certificate be subject to the conditions that he continue to remain under the care of a general practitioner and any specialist whom that practitioner may refer him and comply with any regime of treatment or medication prescribed for him, including undertaking of any tests as directed. He is to give written authority to his medical practitioners to provide progress reports to the Law Society when requested to do so.

Before doing so, I invite the parties to provide written submissions within seven days as to whether such a declaration can be and, if so, in what form it should be made.

**********

Decision last updated: 23 March 2012

Medium Neutral Citation:	Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons [2012] NSWSC 260
Hearing dates:	3, 31 August 2011
Decision date:	23 March 2012
Jurisdiction:	Common Law
Before:	Adams J
Decision:	(1)The respondent is guilty of professional misconduct. (2)At the time of the commission of the misconduct particularised in paragraph 1 (a) of the summons the respondent was not a person of good fame and character. (3)I decline to make the declaration that the respondent is not a fit and proper person to remain on the local roll of lawyers of the Supreme Court of New South Wales. (4)The respondent must pay the applicant's costs.
Catchwords:	LEGAL PRACTITIONER - misappropriation - convicted of criminal offences - sentence completed - relevance of mental illness now controlled - whether unfit for practice.
Legislation Cited:	Legal Profession Act 2004
Cases Cited:	Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 In Re a Practitioner (1984) 36 SASR 590 at 591 McBride v Walton [1994] NSWCA 199 (unreported, 15 July 1994) Nash v Law Society of New South Wales [1988] NSWCA 100 Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
Category:	Principal judgment
Parties:	Prothonotary of the Supreme Court of New South Wales (Applicant) Christopher Ronald Fitzsimons (Respondent)
Representation:	P Griffin (Applicant) J Lyons (Solicitor, Respondent) Crown Solicitors (Applicant) Lyons & Lyons (Respondent)
File Number(s):	2010/265686