Prothonotary of the Supreme Court of NSW v Alcorn
[2007] NSWCA 288
•29 October 2007
New South Wales
Court of Appeal
CITATION: Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 HEARING DATE(S): 27/09/2007
JUDGMENT DATE:
29 October 2007JUDGMENT OF: Beazley JA at 1; McColl JA at 2; Hoeben J at 3 DECISION: A declaration that in respect of the matters referred to in Para 1 of the Summons the opponent is guilty of professional misconduct; A declaration that the opponent is not a person of good fame and character.; A declaration that the opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of NSW.; An order that the name of the opponent be removed from the Local Roll of Lawyers of the Supreme Court of NSW. CATCHWORDS: LEGAL PRACTITIONERS - conduct of solicitor - criminal offences and unprofessional conduct amounting to professional misconduct - deception of partners and investigators amounting to professional misconduct - sanctions for professional misconduct - not a person of good fame and character - not a fit and proper person to remain on the Local Roll of Solicitors of the Supreme Court of NSW LEGISLATION CITED: Crimes Act 1900
Legal Profession Act 1987
SCR 1970 Part 65ACASES CITED: Allinson v General Council of Medical Education and
Examination (1894) 1 QB 750
Barwick v Council of the Law Society of NSW [2004] NSWCA 32
Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448
Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655
McBride v Walton (NSWCA unreported, 15 July 1994)
NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
NSW Bar Association v Smith (NSWCA unreported 9 May 1991)
NSW Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562
Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320
Re: Davis [1947] HCA 53; (1947) 75 CLR 409
Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279PARTIES: The Prothonotary of the Supreme Court of NSW - Claimant
Brian Dean Alcorn - OpponentFILE NUMBER(S): CA 40002/2007 COUNSEL: Mr R Wilson - Claimant SOLICITORS: IV Knight - Claimant
PJ Duffy & Associates - Opponent
CA 40002/2007
Monday 29 October 2007BEAZLEY JA
McCOLL JA
HOEBEN J
1 BEAZLEY JA: I agree with Hoeben J.
2 McCOLL JA: I agree with Hoeben J.
3 HOEBEN J:
Nature of proceedings
The claimant by way of an Amended Summons filed 24 April 2007 seeks the following:
(i) Declarations that the opponent is guilty of professional misconduct.
(ii) A declaration that the opponent is not a person of good fame and character.
(iv) An order that the name of the opponent be removed from the Local Roll of Lawyers of the Supreme Court of NSW.(iii) A declaration that the opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of NSW.
4 The opponent does not oppose the making of those orders.
5 In making this application the claimant relies upon the inherent jurisdiction of the Court to discipline legal practitioners (Re: Davis [1947] HCA 53; (1947) 75 CLR 409). The claimant submits that the conduct engaged in by the opponent amounted to professional misconduct under the Legal Profession Act 1987 (the old Act) and under the common law.
6 In support of the summons the claimant relies upon the agreed statement of facts filed 15 June 2007 and signed by the opponent. The claimant also relies upon admissions of the opponent in his affidavit sworn 3 July 2007.
Factual background
7 The opponent was admitted as a solicitor of the Supreme Court of NSW on 3 April 1992. He has not sought to renew his practising certificate since 30 June 2005. His name remains on the Local Roll of Lawyers of the Supreme Court.
8 On 6 September 2005 the opponent was convicted of, and sentenced in relation to, six offences under the Crimes Act 1900. The opponent had before that date entered pleas of guilty to the offences.
(i) On 13 June 2002 at Sydney in the State of NSW did use a false instrument, to wit a statutory declaration dated 5 June 2002, purportedly signed by Manus Michael Friel, knowing it to be a false instrument, with intent to induce Malcolm Blakeley of the Office of State Revenue, NSW to accept the instrument as genuine and thereby given the said Brian Dean Alcorn a cheque for the sum of $34,043 to the prejudice of the said Malcolm Blakeley. (Count 1)
(ii) On 17 June 2002 at Sydney in the State of NSW did use a false instrument, to wit a statutory declaration dated 5 June 2006 purportedly signed by Kevin Patrick Friel and Manus Michael Friel, knowing it to be a false instrument, with intent to induce Malcolm Blakeley of the Office of State Revenue, NSW to accept the instrument as genuine and thereby given the said Brian Dean Alcorn a cheque for the sum of $47,539 to the prejudice of the said Malcolm Blakeley. (Count 2)
(iii) On 11 April 2002 at Sydney in the State of NSW being an agent of Marsden’s Law Group and its partners did corruptly receive from Neville Stumer a benefit, namely a signed blank cheque on the understanding that the said Brian Dean Alcorn would draw it in his favour for the sum of $30,000 and it is further alleged the receipt of the said cheque would influence the said Brian Dean Alcorn to show or not to show favour or disfavour to the said Neville Stumer in relation to the business or affairs of his principal, Marsden’s Law Group and its partners. (Count 3)
(iv) On 17 April 2002 at Sydney in the State of NSW being an agent of Marsden’s Law Group and its partners did corruptly receive from Neville Stumer a benefit, namely a signed blank cheque on the understanding that the said Brian Dean Alcorn would draw it in his favour for the sum of $30,000 and it is further alleged the receipt of the said cheque would influence the said Brian Dean Alcorn to show or not to show favour or disfavour to the said Neville Stumer in relation to the business or affairs of his principal, Marsden’s Law Group and its partners. (Count 4)
(vi) On 11 June 2002 at Sydney in the State of NSW being an agent of Marsden’s Law Group and its partners, did corruptly receive from Neville Stumer a benefit, namely a sum of $35,000 and it is further alleged receipt of the said sum of $35,000 would influence the said Brian Dean Alcorn to show or not to show favour or disfavour to the said Neville Stumer in relation to the business or affairs of his principal, Marsden’s Law Group and its partners. (Count 6)(v) On 5 June 2002 at Sydney in the State of NSW being an agent of Marsden’s Law Group and its partners, did corruptly receive from Neville Stumer a benefit, namely a sum of $35,000 and it is further alleged receipt of the said sum of $35,000 would influence the said Brian Dean Alcorn to show or not to show favour or disfavour to the said Neville Stumer in relation to the business or affairs of his principal, Marsden’s Law Group and its partners. (Count 5)
9 In the sentencing proceedings the following matters were taken into account by way of a Form 1, the opponent having admitted to committing those offences.
(i) On 17 June 2002 using a false document, a statutory declaration dated 5 June 2002 (offence 1 on form).
(ii) On 17 June 2002 using a false document, a statutory declaration dated 5 June 2002 (offence 2 on form).
(iii) On 26 April 2002 as an agent of Marsden’s Law Group receiving a corrupt commission, to wit, a cheque for the sum of $10,000 (offence 3 on form).
(iv) Between 2 and 3 May 2002 as an agent of Marsden’s Law Group receiving a corrupt commission, to wit, a cheque for the sum of $15,000 (offence 4 on form).
(vi) Between 11 and 17 April 2002 as an agent of Marsden’s Law Group receiving a corrupt commission, to wit, a cheque for the sum of $5,000 (offence 6 on form).(v) Between 9 and 20 May 2002 as an agent of Marsden’s Law Group receiving a corrupt commission, to wit, a cheque for the sum of $15,000 (offence 5 on form).
10 On 6 September 2005 the opponent was sentenced by Black DCJ to concurrent terms of imprisonment of 30 months with a non-parole period of 15 months, such imprisonment to commence on 6 September 2005. On 10 July 2006 the Court of Criminal Appeal quashed those sentences and in lieu imposed different sentences. The effect of those sentences was a head sentence of 2 years with a non-parole period of 1 year.
11 The facts on which those convictions were based were as follows. Neville Stumer, a Queensland mortgage broker, operated a scheme whereby investors would lend money to purported borrowers using the borrowers’ properties as security for their investment. The opponent was one of a number of persons who were involved and assisted Stumer in operating the scheme.
12 The scheme was based on money lending on short term at extremely high rates of interest secured over property. The owners of the properties did not know that their properties were being used in this way. For a property to be used as security in NSW, the Certificate of Title (CT) must be presented to the Land and Property Information Office to enable the registration of the particular dealing. In order to overcome this difficulty, the scheme used the device of a fraudulent statutory declaration stating that the CTs were destroyed in a cyclone. It was further represented that all the property owners were related and that the CTs were held together in premises which were destroyed in the cyclone.
13 The scheme initially used 12 properties owned in NSW by the Friel and Maher families. These properties were used to raise loans totalling $7,970,000. Subsequently a further 23 properties were used in the scheme which allowed another 7 loans to proceed, totalling $4,200,000.
14 The principal company involved in the scheme was Direct Money Corporation Pty Limited (DMC). That company commenced operations in January 2002 with Jacqueline Stumer, the wife of Neville, as the sole director. The company was placed into liquidation in January 2003. It is clear from the financial accounts of the company that approximately $9 million was paid to it, but there were no corresponding withdrawals to purported borrowers.
15 Wayne Sultan, a former Queensland solicitor and associate of Stumer, first contacted the opponent on 20 December 2001. At the time the opponent was a partner with Marsden’s Law Group of Campbelltown. Sultan told the opponent that he needed him to do some work but it had to be finalised by 21 December 2001. The work was described as a loan that involved the transfer of property from a borrower to a lender with an option to purchase in favour of the borrower on repayment of the loan. The plaintiff was told that the borrowers operated a business as lenders of last resort and were prepared to pay good returns on the money they borrowed. The opponent was told that the borrower’s solicitor was Trevor Brown, a Queensland solicitor. Brown was a participant in the scheme with Stumer.
16 This initial loan transaction proceeded to settlement on 21 December 2001. Although there were some unusual features to it, the opponent was unaware of its fraudulent nature. In subsequent transactions the opponent would prepare and email the necessary documentation to the appropriate person in Queensland, ie Brown, Sultan or Stumer. At settlement the documentation he had prepared would be presented to him, executed by the alleged borrowers and witnessed by Brown or another member of the scheme. The whole process for each loan took no longer than 3 days.
17 On 7 April 2002 Stumer contacted the opponent and informed him that he wanted to pay him additional money, apart from legal fees. Stumer said that he wanted to pay the opponent $5,000 as a bonus for every $200,000 of loan funds received. Stumer informed the opponent that he was happy with the level of service and the priority preparation of documents and that this warranted extra money for the opponent. The opponent says that at this time he did not accept nor say he would take any bonus or additional money from Stumer.
18 On 11 April 2002 the opponent attended a settlement of one of the loan transactions. After settlement Stumer handed to the opponent a blank cheque drawn on the DMC business cheque account with the ANZ. Stumer told the opponent that the cheque was for doing a good job. The opponent placed the cheque into his pocket and later filled it out for the amount of $30,000 and banked it into his NAB account on 18 April 2002.
19 On 17 April 2002 the opponent attended another settlement of one of the loan transactions. After settlement was concluded, Stumer again handed the opponent a blank cheque drawn on the same account. The opponent later completed this second cheque for the sum of $30,000 and banked it into his NAB account on 18 April 2002.
20 On 26 April 2002 after completion of a settlement Stumer handed the opponent a blank cheque drawn on the same account which the opponent later filled in for the amount of $10,000 and banked it into his NAB account on 26 April 2002.
21 On 3 May 2002 certain documents were delivered to the opponent at his Campbelltown office by an employee of Stumer. Included with the documents was a blank cheque. The opponent subsequently filled in the blank cheque for $15,000 and banked it into his NAB account on that day.
22 It was on 3 May 2002 that the opponent was contacted by a solicitor, Mr Dickinson, who told him that he acted for Ms Grace English. Ms English was the owner of a property at Doonside, which had been used as security in one of the fraudulent loan transactions. Mr Dickinson asked who was acting for Ms English and advised the opponent that he had held the CT for the Doonside property for a number of years. Following that conversation, the opponent made inquiries but was satisfied by the answers given to him by Stumer. On 13 May 2002 the opponent received a telephone call from Detective Parmenter of the Blacktown detectives in relation to the property at Doonside. The opponent answered the questions put to him and said that he did not think anything further about the matter.
23 On 9 May 2002 after another settlement, the opponent received a blank cheque from Stumer which he filled out for $15,000 and banked into his NAB account on 20 May 2002.
24 On 24 May 2002 the opponent was telephoned by a solicitor, Ms Deigan, who was acting for a proposed borrower. She drew to his attention a discrepancy between a signature on the 1979 transfer of one of the properties and the signature on the current transfer document. The opponent said that although he noticed a difference in the signatures he thought that the difference was due to people changing their signatures over time. The opponent made no further inquiries.
25 On 3 June 2002 the opponent attended a settlement and afterwards received from Stumer a sum of $35,000 which the opponent deposited directly into his NAB account on 5 June 2002.
26 On 6 June 2002 the opponent received $35,000 after two further loan transactions had been completed. This money was paid by the opponent into his NAB account on 11 June 2002.
27 On 14 June 2002 the opponent received a facsimile from Ms Axtens, solicitor, advising him that a caveat had been lodged over her clients’ property at Forestville. She said that her clients had no knowledge of any basis for the lodging of the caveat and requested that it be removed immediately. When the opponent raised this matter with Stumer, Stumer offered him $500,000 to keep quiet. The opponent says he rejected this offer. He removed the caveat.
28 The opponent says that it was at this time that he realised that he had been deceived and that the transactions in which he had been participating were probably fraudulent.
29 Despite this knowledge, the opponent contacted Malcolm Blakeley from the Office of State Revenue (OSR) requesting a refund of stamp duty paid in relation to one of the transactions. On 17 June 2002 the opponent attended the offices of the OSR and met with Mr Blakeley. At that meeting the opponent produced four statutory declarations, even though he knew that the four statutory declarations were false instruments. On being told by Mr Blakeley that further evidence was required the opponent faxed a letter to the OSR on 19 June 2002 attaching the further evidence requested in order to receive a refund of stamp duty. Acting on the documents produced, Blakeley subsequently refunded stamp duty totalling $91,080. At this stage the opponent had made no attempt to report the matter to any person.
30 Between 22 and 25 July 2002 the opponent was aware that the Law Society of NSW was investigating the loan scheme and that inquiries were being made of the partners of his firm. With this knowledge the opponent deliberately made false statements to those partners. He claimed that moneys which he had received from Stumer by way of commissions were repayments for advances the opponent himself had made to the scheme. These false statements were made in order to conceal the true nature of the payments. The opponent made those false statements knowing that they would be conveyed to the Law Society by the partners of his firm.
31 On 25 July 2002 Marsdens provided a report to the Law Society containing those false statements.
32 On 31 July 2002 the matter was reported to the NSW Fraud Squad. On 2 August 2002 a Mr Mitchell was appointed by the Law Society to investigate the affairs of the opponent. The investigation commenced on 5 August 2002.
33 On 5 August 2002 the opponent spoke to James Marsden, the senior partner of the firm, about banking records which would confirm the advances which he said he had made to the scheme. Mr Marsden was told that the opponent would travel to his home address in order to locate those banking records. At 2.00pm the opponent contacted Mr Marsden and asked him to come to his home to discuss something. It was on that occasion that the opponent admitted that he had been receiving secret commissions.
34 On 7 August 2002 the opponent’s secretary advised Mr Marsden that she had received a telephone call from a Campbelltown City Council employee, who was collecting rubbish from a park, which was about 300 metres from the opponent’s home address. This employee had found a number of documents in a garbage bin which had the firm name on them. When those documents were collected and examined they related directly to dealings between the opponent and Stumer and between the opponent and DMC.
35 Mr Mitchell interviewed the opponent on 9 August 2002. The opponent admitted placing the documents in the bin on 5 August 2002. He said that he got rid of the documents because he had panicked. The opponent confirmed the receipt of secret commissions, and the fact that he did not declare to any of the investors for whom he was acting, that he had received these commissions.
36 In March 2003 the opponent through his legal advisers wrote to the police volunteering to be interviewed in relation to these matters with a view to assisting the police in their inquiries regarding the other participants in the scheme.
37 The opponent was electronically interviewed by the police on 11 December 2003. During this interview the opponent made full disclosure in relation to the receipt of the commissions and his other conduct in relation to the loan transactions which were part of the scheme. Marsden’s Law Group terminated the opponent’s partnership on 14 August 2002.
38 In summary, in relation to at least six of the client lenders for whom the opponent acted in respect of transactions which were part of the scheme, he accepted commissions in respect of those transactions without disclosing to those clients the receipt of the commissions.
39 In relation to at least eight of the matters involving transactions under the scheme the opponent received formal documents which had apparently been signed and witnessed but which were incomplete. He then completed the documents himself without having them re-signed and witnessed. These documents were declarations by borrowers and acknowledgements of the receipt of independent advice by proposed borrowers
40 In relation to the client lenders for whom the opponent acted in respect of transactions under the scheme, he failed to provide any written advice about the scheme or any risks involved in it, prior to them making an investment. In particular, he failed to provide written advice with regard to lost Certificates of Title and the nature of the security being provided.
41 In relation to 12 of the matters involving transactions under the scheme, the opponent failed to assess and ensure payment of appropriate stamp duty when it was his responsibility to do so. This resulted in a loss of approximately $25,000 to the OSR.
42 In 19 of the matters he failed to issue any costs disclosure, in 22 of the matters he received payment without issuing any bill of costs and in 18 of the matters he failed to make any adequate file notes.
43 In August 2002 the opponent became severely depressed and did not work between that date and August 2003. His home, which he jointly owned with his wife, was sold and out of the proceeds of sale the sum of $285,000 was paid to Marsdens. He also forfeited an entitlement of $97,000 out of the partnership profits.
44 The opponent filed an affidavit dated
45 3 July 2007 admitting the allegations and accepting that the declaration and orders sought were the only appropriate consequence of his actions. In his affidavit the opponent has expressed deep regret and remorse for his conduct. He has not practised as a solicitor since August 2002 and did not seek to renew his practising certificate after 30 June 2005. In other words the opponent has lost his profession as a solicitor.
46 The opponent has now completed the sentences imposed on him by the Court of Criminal Appeal and is in regular employment as a development and business consultant. He has indicated an intention to work in the future to rehabilitate himself in the eyes of the community and the legal profession.
47 The opponent has fully co-operated with the claimant in these proceedings and has made all admissions asked of him.
Professional misconduct
48 As can be seen the declarations as to professional misconduct on the part of the opponent relate to the opponent’s conduct during the period January – August 2002. During this period the opponent engaged in professional misconduct by engaging in unsatisfactory professional conduct which involved a substantial and consistent failure to reach reasonable standards of competence and diligence (s127 of the old Act). This is the conduct referred to in particular (xxiii) of Para (1) of the amended summons.
49 The opponent’s conduct between 11 April and 17 June 2002 for which he was convicted in the District Court of six criminal offences and had six offences taken into account by the sentencing judge, also amounts to professional misconduct. All 12 offences involved dishonesty or corruption.
50 The opponent’s conduct between 11 April and 5 August 2002, which was not the subject of any criminal charges, amounted to further professional misconduct. This is the conduct referred to in particulars (xiii) - (xxii) and (xxiv) of Para 1 of the amended summons.
51 In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of “professional misconduct”. Rather “it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice” (A Solicitor v The Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at [21]).
52 A classic common law definition of professional misconduct is still that set out in Allinson v General Council of Medical Education and Examination (1894) 1 QB 750 where “professional misconduct” was described as:
- “… behaviour on the part of the practitioner which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency.”
53 Whilst that test is not an exhaustive description of professional misconduct it is an appropriate test for this application.
54 The opponent’s conduct between April and August 2002 comprised acts of dishonesty and deception. Those acts showed a willingness to lie and to create false documents to evade detection. While the conduct prior to April 2002 was less serious, it demonstrated a lack of dedication to maintaining appropriate standards of competence and diligence. The “factual background” in these reasons sets out the detail of these acts.
55 The conduct of the opponent in creating and using false legal documents in the course of his practice as a solicitor strikes at the fundamental role of a solicitor in our community and the trust placed in members of the legal profession. The seriousness of this conduct was exacerbated by the opponent’s initial attempts to mislead the Law Society and the partners in his firm as to his involvement in the matters under investigation. Much of the other conduct described involved serious conflicts of interest with his partners and clients, including the receiving of secret commissions totalling $180,000. That conduct would be reasonably regarded as disgraceful and dishonourable by members of the legal profession.
56 Taken together the conduct particularised in the summons was of such gravity that it demonstrates qualities in the opponent which are incompatible with the conduct of practice as a legal practitioner. I would make the declaration sought by the claimant, ie that the opponent is guilty of professional misconduct.
A person of good fame and character
57 The absence of “good fame and character” is a matter that falls to be determined at the time of the hearing not at some prior time (Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 per Holmes JA at 475.
58 In determining whether a person is of good fame and character, the Court is to consider “matters affecting the moral standards and attitudes and qualities (of an applicant for registration) and not merely consider what is his general reputation” – see Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 451 and Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655 per Higgins J at 692.
59 However the notion of good character is not at large. It must relate to the qualities relevant to practice as a professional. Kirby P described the concept as follows:
- “The “good character” which is required, the absence of which may give rise to complaint leading to sanctions, must be a “good character” relevant to the purpose for which the complaint is entertained, viz for the making of an order affecting the practice of the medical practitioner concerned as such… The relevant function of the Tribunal is to protect the public from medical practitioners whose continued practice may cause harm to the public”. (McBride v Walton (NSWCA unreported, 15 July 1994 at [15]).
60 Dixon J described the concept of “good fame and character” as follows:
- “It would almost seem to go to without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and more enduring moral qualities denoted by the expression “good fame and character”, which describes the test of his ethical fitness for the profession.” ( In Re: Davis at 420)
61 There was no question that the conduct of the opponent during 2002 demonstrated the absence of qualities necessary in a person of good fame and character. The only question is whether that situation continues at the present time. Walsh JA provides assistance on this question in Tziniolis at 461:
- “Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.”
62 Whilst the opponent has served his sentences of imprisonment, is in employment and is endeavouring to rehabilitate himself, the sort of proof referred to by Walsh JA has not and could not at this time be forthcoming. This is because of the serious nature of the conduct which took place between 11 April and 5 August 2002.
63 In my opinion the claimant is entitled to a declaration that the opponent is not a person of good fame and character.
Fit and proper person
64 The finding that a practitioner has been guilty of professional misconduct does not automatically lead to a finding that the practitioner is not a fit and proper person to remain on the roll of legal practitioners (Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279). Rather an order for the removal of the legal practitioner’s name from the roll is the final consideration where a finding of professional misconduct has been made (NSW Bar Association v Smith (NSWCA unreported 9 May 1991 at [37];).
65 Some guidance on this question is provided in Ziems as follows:
- “The conviction is not irrelevant: it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided. And we are bound to ascertain, so far as we can on the material available, the real facts of the case.” (Fullagar J at 288) and:
- “The vital question, as I have already said, and as these considerations show, is whether the conduct of the person concerned, whether it constitutes an offence against the law or not, has been such as to show that he is unfit to remain a member of the bar.” (Taylor J at 303)
66 In this case not only has the opponent been convicted of criminal offences, but the offences are of such a disgraceful kind and so concern his capacity to act as a legal practitioner, that he is not a fit and proper person to remain on the roll. In addition it is not only the conduct the subject of the criminal convictions which demonstrates the necessity for removal from the roll, but the other examples of dishonesty, lack of candour and failures of professional duties to which has been made.
67 In determining the question of fitness to remain on the Roll, as with the question of “good fame and character”, the focus of the inquiry is upon fitness as at the time of the application (Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17]). In making such a determination the important factor is the nature and extent of the past conduct and demonstrated dishonesty.
68 In this case the systematic course of dishonest conduct, albeit that it occurred in 2002 and over a relatively short period, is such that it is incompatible with the degree of honesty and integrity required for legal practice (NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, NSW Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562.) This is particularly so when the course of conduct involved deliberate deception and dishonesty, including attempts to deceive investigating authorities.
69 A legal practitioner is required to be faithful to the oath of office, the courts, fellow practitioners and clients and as such, considerable trust is placed in him or her. The conduct of the opponent has demonstrated aspects of his character that are “fundamentally inimical to fitness to practice as a legal practitioner” (Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [119]). In my opinion these matters establish that he is not a fit and proper person to discharge the responsibilities of practising as a legal practitioner.
70 The final consideration arises from the nature of these proceedings. Such proceedings are not punitive in nature and it is the protection of the public and the maintenance of proper standards within the legal profession which are the ultimate considerations.
71 In considering an order for the removal of a legal practitioner’s name from the Roll, it is clear that the deterrent aspect of such an order both in terms of the individual practitioner and others who may be tempted to engage in like conduct, must be considered. This deterrent aspect is consistent with both the protection of the public and the maintenance of proper standards within the legal profession.
72 For those reasons I am of the opinion that a declaration should be made that the opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of NSW. I am also of the opinion that an order should be made that the name of the opponent be removed from the Local Roll of Lawyers of the Supreme Court of NSW.
Costs
73 The claimant also seeks an order that the opponent pay the costs of this application. That application has not been opposed.
74 As indicated in the recital of the factual background, the opponent has co-operated fully with the claimant in these proceedings. Although represented in the proceedings, the opponent’s submissions were restricted to matters of detail associated with his current activities and rehabilitation.
75 Despite that co-operation, it is appropriate that costs be awarded against the opponent. Apart from the opponent’s concession to the order being made, this application was an inevitable and necessary consequence of the opponent’s conduct. It follows that a costs order should be made against him.
Orders
76 The orders which I propose are as follows:
(i) A declaration that in respect of the matters referred to in Para 1 of the Summons the opponent is guilty of professional misconduct. ***
(ii) A declaration that the opponent is not a person of good fame and character.
(iii) A declaration that the opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of NSW.
(v) An order that the opponent pay the claimant’s costs.(iv) An order that the name of the opponent be removed from the Local Roll of Lawyers of the Supreme Court of NSW.
77 THE COURT: After judgment was handed down on Monday, 29 October 2007 it was brought to the attention of the Court that the parties had made an agreement as to costs, the effect of which was that no costs would be sought against the opponent. Accordingly, applying the slip rule, order (v) in paragraph 76 is deleted.
***Para 1 of the summons is annexed to this judgment.
IN THE SUPREME COURT
OF NEW SOUTH WALES
SYDNEY REGISTRY
COURT OF APPEALNo. 40002 of 2007
Amended summons
Filed for the Claimant
PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALESBRIAN DEAN ALCORN
Claimant
Opponent
I V Knight
Crown Solicitor
Level 5, 60-70 Elizabeth Street
SYDNEY NSW 2000
DX 19 SYDNEY
Tel: 9224 5150
Fax: 9224 5155
Ref: T7 Geoff Boyd
The Claimant claims:1. Declarations that the Opponent is guilty of professional misconduct.
Particulars
(i) On 17 June 2002 the Opponent engaged in conduct of a dishonest nature for which he was convicted on 6 September 2005 at the Lismore District Court of knowingly using a false instrument with intent to induce a person to accept the instrument as genuine and consequently to do an act to the prejudice of that person, contrary to
s. 300(2) of the Crimes Act 1900 (NSW). (“Count 1”)
(ii) On 17 June 2002 the Opponent engaged in conduct of a dishonest nature for which he was convicted on 6 September 2005 at the Lismore District Court of knowingly using a false instrument with intent to induce a person to accept the instrument as genuine and consequently to do an act to the prejudice of that person, contrary to
s. 300(2) of the Crimes Act 1900 (NSW). (“Count 2”)
(iii) On 11 April 2002 the Opponent engaged in conduct of a dishonest nature for which he was convicted on 6 September 2005 at the Lismore District Court of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to
s. 249B(1)(b) of the Crimes Act 1900 (NSW). (“Count 3”)
(iv) On 17 April 2002 the Opponent engaged in conduct of a dishonest nature for which he was convicted on 6 September 2005 at the Lismore District Court of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to s. 249B(1)(b) of the Crimes Act 1900 (NSW). (“Count 4”)
(v) On 5 June 2002 the Opponent engaged in conduct of a dishonest nature for which he was convicted on 6 September 2005 at the Lismore District Court of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to s. 249B(1)(b) of the Crimes Act 1900 (NSW). (“Count 5”)
(vi) On 11 June 2002 the Opponent engaged in conduct of a dishonest nature for which he was convicted on 6 September 2005 at the Lismore District Court of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to s. 249B(1)(b) of the Crimes Act 1900 (NSW). (“Count 6”)
(vii) On 17 June 2002 the Opponent engaged in conduct of a dishonest nature for which, upon his admission, an offence of knowingly using a false instrument with intent to induce a person to accept the instrument as genuine and consequently to do an act to the prejudice that person, contrary to s. 300(2) of the Crimes Act 1900 (NSW) was taken into account on a Form 1, pursuant to s32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), upon the opponent being convicted of other criminal offences in the Lismore District Court on
- 6 September 2005. (“Offence 1 on Form”)
(viii) On 17 June 2002 the Opponent engaged in conduct of a dishonest nature for which, upon his admission, an offence of knowingly using a false instrument with intent to induce a person to accept the instrument as genuine and consequently to do an act to the prejudice that person, contrary to s. 300(2) of the Crimes Act 1900 (NSW) was taken into account on a Form 1, pursuant to
- s. 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), upon the opponent being convicted of other criminal offences in the Lismore District Court on 6 September 2005. (“Offence 2 on Form”)
(ix) On 26 April 2002 the Opponent engaged in conduct of a dishonest nature for which, upon his admission, an offence of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to s. 249B(1)(b) of the Crimes Act 1900 (NSW) was taken into account on a Form 1, pursuant to s. 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), upon the opponent being convicted of other criminal offences in the Lismore District Court on 6 September 2005. (“Offence 3 on Form”)
(x) Between 2 and 3 May 2002 the Opponent engaged in conduct of a dishonest nature for which, upon his admission, an offence of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to s. 249B(1)(b) of the Crimes Act 1900 (NSW) was taken into account on a Form 1, pursuant to s. 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), upon the opponent being convicted of other criminal offences in the Lismore District Court on 6 September 2005. (“Offence 4 on Form”)
(xi) Between 9 and 20 May 2002 the Opponent engaged in conduct of a dishonest nature for which, upon his admission, an offence of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to s. 249B(1)(b) of the Crimes Act 1900 (NSW) was taken into account on a Form 1, pursuant to s. 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), upon the opponent being convicted of other criminal offences in the Lismore District Court on
- 6 September 2005. (“Offence 5 on Form”)
(xii) On 17 April 2002 the Opponent engaged in conduct of a dishonest nature for which, upon his admission, an offence of being an agent corruptly receiving a benefit, the receipt of which would tend to influence the Opponent to show or not to show favour or disfavour to a person in relation to the business or affairs of his principal, contrary to s. 249B(1)(b) of the Crimes Act 1900 (NSW) was taken into account on a Form 1, pursuant to s. 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), upon the opponent being convicted of other criminal offences in the Lismore District Court on 6 September 2005. (“Offence 6 on Form”)
(xiii) Between 11 April and 5 June 2002 the Opponent engaged in conduct in conflict with the interests of at least six of his clients by accepting commissions in respect of transactions involving those clients without disclosing to those clients the receipt of any commissions.
(xiv) Between 11 April and 5 June 2002 the Opponent engaged in conduct in breach of his duty of trust to the partners in his firm by failing to disclose to them the receipt of commissions in respect of work undertaken in the course of his practice in the partnership.
(xv) Between 11 April and 5 June 2002 the Opponent engaged in conduct of a dishonest nature by failing to account to the partners of his firm for the receipt of commissions in respect of work undertaken in the course of his practice in the partnership.
(xvi) Between 11 April and 5 June 2002 the Opponent engaged in conduct of a dishonest nature by creating false documents purporting to relate to loans advanced by him in order to disguise the fact that he was receiving secret commissions.
(xvii) Between 22 and 25 July 2002 the Opponent engaged in conduct of a dishonest nature and in breach of his duty of candour to the partners of his firm by deliberately making false statements to them as to the true nature of certain transactions – by falsely informing them that he had invested in a loan scheme when in fact he was receiving monies as secret commissions.
(xviii) Between 22 and 25 July 2002 the Opponent engaged in conduct in breach of his duty of candour to the Law Society of New South Wales by deliberately making false statements to the partners of his firm as set out in particular (xvii), knowing that (a) the Law Society was investigating a loan scheme in which he was involved and that (b) the partners of his firm would pass the false statements on to the Law Society.
(xix) On 31 July 2002 the Opponent engaged in conduct of a dishonest nature and in breach of his duty of candour to the partners of his firm by deliberately repeating and confirming in writing to one of the partners the false statements referred to in particular (xvii) above.
(xx) On 31 July 2002 the Opponent engaged in conduct in breach of his duty of candour to the Law Society of New South Wales by deliberately repeating and confirming in writing to one of the partners the false statements referred to in particular (xvii) above, knowing that (a) the Law Society was investigating a loan scheme in which he was involved and (b) the partner would be likely to pass the information on to the Law Society.
(xxi) On 5 August 2002 the Opponent engaged in conduct of a dishonest nature and in breach of his duty of candour to the Law Society of New South Wales by attempting to dispose of documents relevant to an investigation by the Law Society which he knew was proceeding at that time.
(xxii) Between 1 March and 3 June 2002 engaged in conduct of a dishonest nature and in breach of his professional duty by completing formal documents after they had been signed by their makers in the presence of a witness.
(xxiii) Between January 2001 and June 2002, engaged in conduct in the course of his practice as a solicitor which amounted to substantial and consistent failures to reach a reasonable standard of competence and diligence:
i. Failing to check, or check with due diligence, the legitimacy of persons and transactions when serious concerns had been raised by both fellow lawyers and police in circumstances where he clearly ought to have done so;
ii. Failing to provide written advice about substantial financial transactions;
iii. Failing to provide adequate advice about the risks of substantial financial transactions;
iv. Failing to ensure required stamp duty was paid when it was his duty to so ensure;
v. Failing to issue costs disclosures in relation to numerous matters;
vi. Receiving payment from numerous clients without issuing a bill of costs;
vii. Failing to keep any, or any adequate file notes, in relation to numerous matters;
(xxiv) On or about 20 June 2002 the Opponent engaged in conduct in breach of his duty to a client by withdrawing, without the client’s knowledge or consent, a caveat which had been lodged over property for the protection of the interests of that client.
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