The Council of the Law Society of NSW v Doherty

[2010] NSWCA 177

New South Wales

Court of Appeal

CITATION:	The Council of the Law Society of NSW v Doherty [2010] NSWCA 177
HEARING DATE(S):	14 July 2010
JUDGMENT DATE:	27 July 2010
JUDGMENT OF:	Tobias JA at [1]; Campbell JA at [2]; Young JA at [3]
DECISION:	The appeal is dismissed with costs.
CATCHWORDS:	Legal Practitioners- discipline- Legal Profession Act 2004- respondent solicitor found guilty of professional misconduct for breach of s 255, misappropriation, misleading statements and acting in conflict of interest- solicitor not struck off roll- additional breach of Rule 12 Legal Profession Conduct and Practice Rules and s 67(2)(a)- Administrative Decisions Tribunal failed to give effect to s 67(3) whereby breach of s 67(2)(a) is professional misconduct- whether Tribunal should have struck the respondent's name from the roll- whether solicitor is likely to be unfit to practice for the indefinite future- findings of Legal Services Division that not permanently unfit not to be lightly disturbed on appeal- whether "ordinary case" of misappropriation or less serious- borderline case- whether proper appreciation of conduct and solicitors' obligations- solicitor's conduct atypical, without evil intent and money repaid- honest belief in authority to utilize funds based on genuine file note- claim that he was indefinitely unfit to practice not made out. Words and Phrases- "misappropriation"- wide ambit of meanings- where honest belief in claim of right.
LEGISLATION CITED:	Legal Profession Act 2004, ss 67, 255, 729A Legal Profession Conduct and Practice Rules Supreme Court Act 1970, s 75A
CATEGORY:	Principal judgment
CASES CITED:	Dupal v Law Society (Court of Appeal of NSW, 26.4.1990, unreported, per Kirby P and Handley JA) Legal Practitioners Complaints Committee v Edward [2007] WASC 287 R v Nundah (1916) 16 SR (NSW) 482 Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93
PARTIES:	The Council of the Law Society of New South Wales (Appellant) Peter John Doherty (Respondent)
FILE NUMBER(S):	CA 2009/324937
COUNSEL:	G C Lindsay SC and S Barnes (Appellant) J M Ireland QC and D Mihalic (Respondent)
SOLICITORS:	R J Collins (Appellant) P J Doherty (Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal of New South Wales - Legal Services Division
LOWER COURT FILE NUMBER(S):	082029 (ADT)
LOWER COURT JUDICIAL OFFICER:	G B Molloy - Judicial Member; M Riordan - Judicial Member; C Bennett - Non-Judicial Member
LOWER COURT DATE OF DECISION:	23 June 2009; 30 November 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	The Council of the Law Society of NSW v Doherty [2009] NSWADT 155 The Council of the Law Society of NSW v Doherty (No 2) [2009] NSWADT 296

2009/324937

TOBIAS JA
CAMPBELL JA
YOUNG JA

Tuesday 27 July 2010

THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES v PETER JOHN DOHERTY

Judgment

1 TOBIAS JA: I agree with Young JA.

2 CAMPBELL JA: I agree with Young JA.

3 YOUNG JA: This is an appeal by the Law Society against the orders made by the Administrative Decisions Tribunal exercising its disciplinary powers over solicitors. The appeal is brought pursuant to s 729A of the Legal Profession Act, 2004 (the Act) which operates so that the appeal is of the same nature as an appeal under s 75A of the Supreme Court Act, 1970.

4 The core ground of appeal is that the Tribunal erred in not ordering that the respondent’s name be struck off the Local Roll of Lawyers.

5 The Tribunal gave its decision in two tranches. The first tranche, Law Society v Doherty [2009] NSWADT 155 published on 23 June 2009 found as follows:

1. The Respondent is guilty of professional misconduct in terms of paragraph B of the Second Amended Application for Original Decision, in that in relation to his client Geoffrey Rafter (“Rafter”) the solicitor:
a. Breached Section 255 of the Legal Profession Act 2004;
b. Misappropriated the sum of $35,000.00 belonging to Rafter (“Rafter’s funds”);
c. Knowingly misled Rafter in that:
c.1 having applied Rafter’s funds to discharge obligations imposed upon the solicitor’s company, Lloyd Lancaster Pty Limited, he failed to promptly inform Rafter that he had done so; and
d. Unreasonably delayed in advising Rafter that he had applied Rafter’s funds to discharge obligations imposed upon the solicitor’s company Lloyd Lancaster Pty Limited;
e. Failed to account to Rafter in respect of Rafter’s funds;
f. Acted in conflict of interest and preferred his own interest to those of his client Rafter.
2. That the Respondent breached Rule 12 Legal Profession Conduct and Practice Rules in the matter of Estate Flower, but in the circumstances the breach was minimal and not with intent and no dispositive order should be made in relation thereto.
3. That the Respondent was in breach of s 67(2)(a) but that in the circumstances the breach was minimal and not with intent and no dispositive order should be made in relation thereto.

6 The second tranche dealt with the disciplinary orders that ought to be made against the respondent, and was published on 30 November 2009: [2009] NSWADT 296.

7 In its submissions to the Tribunal in the second part of the proceedings, the Law Society submitted that, in view of its findings in the first tranche, the Tribunal had little option but to strike the name of the respondent from the roll. However, the Tribunal, whilst recognizing the force of that submission, considered that it was appropriate in this case to make some lesser order.

8 The order made was:

1. The practicing certificate of the Respondent Peter John Doherty be cancelled for a period of twelve (12) months from 25 September 2009, concluding 25 September 2010.
2. During the period of such cancellation the Respondent is to attend (and pass if appropriate) appropriate courses in trust accounting and ethics.
3. At the end of the period of cancellation, and subject to compliance with Order 2 above, the Respondent is to be issued with a practicing certificate that would entitle him to practice as an employed solicitor only for a period of six (6) years commencing 26 September 2010, with such additional restrictions as to areas of practice as may be agreed between the Law Society and the Respondent or, failing agreement, determined by this Tribunal.
4. The Law Society is directed to bring forward appropriate conditions that may be imposed consistent with the terms of this decision. The Law Society is to provide those conditions to the Respondent with a view to the Law Society and the Respondent agreeing to the terms thereof. In the case of agreement the Tribunal should be moved to make final orders consistent therewith. In the case of non-agreement the terms of conditions can be the subject of a further decision and liberty is granted to apply.
5. The Respondent is to pay the costs of the Law Society as assessed or as agreed.

9 In its notice of appeal, the Law Society challenges this order as inadequate. Apart from a direct challenge, it also seeks to review certain decisions along the way in the first tranche decision, basically saying that conduct which the Tribunal classed as inappropriate should have been held to be professional misconduct.

10 The respondent filed a cross appeal. This was not proceeded with. He also flagged the probability that he would file a notice of contention: he did not do so.

11 The basal facts are that the respondent was admitted to practise as a solicitor on 29 August 1997. At all material times he was a sole practitioner practising as “Lloyd Lancaster” or “Lloyd Lancaster Lawyers” at Kogarah.

12 The name “Lancaster” is the respondent’s wife’s maiden name and “Lloyd” is the first name of one of his children.

13 There were five complaints in the Law Society’s initiating process. The most significant of these was (B) with respect to a Mr Rafter. The respondent was alleged to have misappropriated $35,000 belonging to Mr Rafter, with misleading Mr Rafter by making false statements to him, by failing to account to Mr Rafter for his funds and by having a conflict of interest.

14 Other complaints were (A) with respect to unauthorised borrowings from the Estate of Flower, (C) failure to notify the Law Society that bankruptcy proceedings had been taken against him and (D) and (E) that he had acted as a solicitor after his practising certificate had been suspended.

15 The Tribunal found (B) established and held that there was professional misconduct. As to (A) and (C), the Tribunal found that there was a breach, there was unsatisfactory professional conduct, but not professional misconduct and that (D) and (E) were not established.

16 The Law Society challenges the categorisation of (A) and (C) as minor, and challenges the findings of (D) and (E) and says that in itself, the findings on (B) could lead to only one consequence, namely striking off.

17 I should note at this stage that the respondent concedes that (C) by virtue of s 67(3) of the Act does need to be classed as professional misconduct. However, he says that this does not affect the result of the case.

18 On the appeal Mr G C Lindsay SC and Mr S Barnes appeared for the Law Society and Mr J M Ireland QC and Mr D Mihalic appeared for the respondent.

19 Just as the Tribunal did, it is appropriate first to examine complaint (B).

20 The respondent and Mr Rafter (or their corporate vehicles) entered into two joint ventures, one in Byron Bay and the other in Hill End.

21 The Byron Bay joint venture appears to have three aspects to it. First, the parties were to purchase a property identified as the Haven property and then almost immediately resell it at a profit. Secondly, they were to obtain an option on the Byron Bay Caravan Park property and thirdly, they were to acquire an option over caravan park land at Banora Point.

22 That joint venture agreement required the respondent’s company, Lancaster Lloyd Pty Ltd to expend $126,000, including $16,000 for the deposit payable on acquiring the Haven property.

23 Under the Hill End joint venture agreement, Mr Rafter was to make available $35,000 for a deposit: he did so. However, the Hill End project did not proceed and Mr Rafter was entitled to a refund of his money.

24 The problem for the respondent was that he could not refund Mr Rafter’s money as he had used it as the deposit on the Haven property, his own cheque for the deposit having been dishonoured due to lack of funds.

25 In para 45 of the its first judgment, the Tribunal noted the following uncontested facts:

(a) 22 September 2006: the Respondent drew on his firm’s general/office account cheque #779 in $16,000, being the deposit on the Haven property. This was in accordance with clause 7(i) of the Byron Bay Joint Venture.
(b) 25 September 2006: Cheque #779 was presented.
(c) 26 September 2006: Cheque #779 was dishonoured. Pausing here, the Respondent’s evidence was that he drew the cheque for $16,000 in the belief that he “was receiving moneys into (his) account that day from a loan (he) was obtaining which would cover the cheque. However the funds did not arrive and (the) cheque was unexpected(ly) dishonoured.
(d) 26 September 2006: Rafter provides to the Respondent a Bank Cheque in $35,0000, intended to be the deposit on the proposed purchase of the Hill End property. This was in accordance with the Hill End Joint Venture, clause 3. The evidence of Rafter was that he regarded Geoffrey Rafter Developments as effectively himself such that when he drew on his own funds the Bank Cheque in $35,000 he regarded that as being in discharge of the obligations of Geoffrey Rafter Developments under the Hill End Joint Venture. In an accounting sense there 2 would have been a loan from Rafter to Geoffrey Rafter Developments. The Bank Cheque was payable to “Vista Capital”, being the mortgagee exercising power of sale over the Hill End property.
(e) 3 October 2006: The Bank Cheque payable to “Vista Capital” was deposited into the Respondent’s Trust Account. There is a dispute between the Respondent and Rafter relating to the circumstances/instructions with respect to this Trust Account deposit, and we shall deal with that below.
(f) 5 October 2006: Cheque #224 in $16,000 was drawn by Respondent against his Trust Account (not office/general account) from the $35,000 provided by Rafter. Pausing at this point, it is plain that the Respondent, in contradistinction to his activity 22 September 2006, was not using his own money but rather the money of Rafter. Cheque #224 was debited to the Respondent’s Trust Account ledger “Byron Bay Recreational Estate Pty Limited – Property Joint Venture” thus bringing the balance of that ledger to $19,000.
(g) 5 October 2006: The Trust Account cheque #224 in $16,000 was drawn payable to “Mrs J Haven” and was the deposit on the purchase of the Haven property (this replaced cheque #779 drawn on the Respondent’s general/office account, which had been dishonoured – see (c) above).
(h) 14 October 2006: The Respondent drew cheque #826 in $40,000 on his general/office account payable to “Byron Bay Retirement Village Pty Limited”, being the option to purchase Byron Bay Tourist Park Caravan Park. The Respondent says that he “mistakenly drew the cheque upon (his) general account rather than (his) trust account where the necessary money was held.”
(i) 17 October 2006: Cheque #826 in $40,000 was presented and dishonoured.
(j) 17 October 2006: $40,000 was transferred from the Respondent’s Trust Account ledger 21000 to the credit of another trust ledger number 21352. The first Trust Account ledger was styled “Lloyd Lancaster (General Account)” and the second styled “Byron Bay Recreational Estate Pty Limited – Property Joint Venture.”
(k) 18 October 2006: The balance of Trust Account ledger number 21352 (“Byron Bay Recreational Estate Pty Limited – Property Joint Venture”), being $19,000, was paid by internet withdrawal to the Respondent’s general/office bank account, and being described as “refund to client” and leaving a “nil” balance in that ledger. It was never explained what was the “refund”.
(l) 20 October 2006: Respondent’s general/office account cheque #829 in $35,000 payable to “Vista Capital” was presented and “dishonoured” on the following day. The purpose of this transaction was for the Hill End vendor’s solicitor to hold in escrow pending exchange of contracts – the Hill End purchase never went ahead – the cheque, although entered in the Respondent’s records as “dishonoured”, was in fact “stopped” by the Respondent. Nothing hangs on this.
(m) 23 October 2006: Cheque #836 in $40,000 payable to “Byron Bay Retirement Village Pty Limited” for the option to purchase the Byron Bay Caravan Park was re-presented against the Respondent’s general/office account and honoured.

26 The Tribunal made its findings on complaint (B) in para 115 as follows:

The Tribunal is clearly of the opinion:
1. There were two separate and distinct joint venture contracts.
2. The Respondent had an absolutely obligation to the joint venturers to ensure that the exact terms of the joint venture contracts were complied with by them and by him.
3. There was nothing in either joint venture contract that would have entitled the Respondent, or his company, to appropriate the $35,000.00 and use that money for the Byron Bay Joint Venture.
4. In order to succeed in his argument the Respondent would have had to have asserted a loan contract/agreement between Lloyd Lancaster Pty Limited and Rafter/Rafter Developments in or to the effect that Rafter/Rafter Developments would lent to Lloyd Lancaster Pty Limited $16,000.00 so that Lloyd Lancaster Pty Limited could make the deposit on the Haven property. No such assertion was made, either in evidence or by way of submission.
5. Any belief that the Respondent may have had relating to his/his company/s use of the $35,000.00 or the joint venture use of that money would be a belief not rooted in contract nor in any side agreement.
6. In all the circumstances the Tribunal finds that the Respondent misappropriated to his own use or to the use of his company Lloyd Lancaster Pty Limited the $16,000.00 and misappropriated to his own use or the use of his said company the $19,000.00, both together forming the $35,000.00 being, in turn, the bank cheque provided by Rafter/Rafter Developments and payable to Vista Capital.
7. Although the Tribunal finds much to criticise in the evidence of Rafter, taking into account to the whole of the material before it, the Tribunal is clearly of the view that it prefers the evidence of Rafter to the evidence of the Respondent. The Law Society has clearly discharged its burden of proof such that it was up to the Respondent to displace the clear prima facie conclusion that the $35,000.00 was used by him for purposes other than for which it was entrusted to him. In our view the Respondent clearly fails in that regard.
8. In relation to the Second Amended Application for Original Decision the Tribunal finds:
i) the Respondent breached s.255 Legal Profession Act 2004 (which requires a law practice to hold trust money exclusively for the person on whose behalf it is received and to disburse it only in accordance with a direction given by the person). The Tribunal also notes that, although not pleaded, there was a clear breach of s.264(2)(b) and s.264(2)(c).
ii) the Respondent misappropriated the sum of $35,000.00 belonging to Geoffrey Rafter.
iii) the Respondent knowingly misled Rafter in terms of paragraph B.3.3.1 of the Grounds in the said Second Amended Application (at [79] above).
iv) the Respondent unreasonably delayed advising Rafter that he had applied Rafter’s funds to discharge obligations imposed upon his company, Lloyd Lancaster Pty Limited.
v) the Respondent has failed to account to Rafter in respect of Rafter’s funds.
vi) the Respondent acted in a conflict of interest and preferred his own interest to those of his client, Rafter.
These are serious findings against the Respondent as a legal practitioner. The Tribunal does not make these findings lightly. It has carefully weighed up all the evidence and has been to some trouble to set out in detail above its reasoning behind making these findings. Both parties and their briefed lawyers have put great weight upon “the Rafter matter” and that is why the Tribunal has been to perhaps more than considerable length in dealing with this issue.

27 The Tribunal’s ultimate conclusion in its first judgment were:

145. In the upshot the Tribunal is clearly of the opinion:
1. The Respondent is guilty of professional misconduct in terms of paragraph B of the Second Amended Application for Original Decision (set out above at [79]), with the exception of B.3.3.2.
2. That the Respondent breached Rule 12 Legal Profession Conduct and Practice Rules in the matter of Estate Flower, but in the circumstances the breach was minimal and not with intent and no dispositive order should be made in relation thereto.
3. That the Respondent was in breach of s.67(2)(a) but that in the circumstances the breach was minimal and not with intent and no dispositive order should be made in relation thereto.
4. The Respondent did not, in all the circumstances, breach Sections 14(1) and/or 15(1) Legal Profession Act 2004.

28 It must be said, however, that these rather stern findings were mitigated to an extent in the second judgment where there were some statements inconsistent with them but more favourable to the respondent. The Tribunal accepted that the respondent had acted without evil intent and that his conduct in the matters being considered was not typical of him and that he at all times believed that he had Mr Rafter’s authority to utilize the $35,000 in the Byron Bay joint venture.

29 This was reinforced by the fact that the Tribunal accepted that a file note said by the respondent to have been made more or less contemporaneously with the conversation between the respondent and Mr Rafter to which it related was genuine and not concocted. That file note confirmed the respondent’s understanding.

30 However, the Law Society submitted that once the findings to which the Court referred at [5] above were made, on those findings alone, the Tribunal had little alternative but to strike the name of the respondent from the roll.

31 The Tribunal did not accept that submission. At paras [46]-[48] of its second judgment, it said that that proposition was not a proper summary of the authorities as each case depended on its own facts and the Tribunal and the Court always retained a discretion as to what order should be made for the protection of the public.

32 Before this Court, it was clear that the Law Society was submitting that in the ordinary case, where there is a finding of misappropriation by a solicitor, the appropriate order is one of striking off the roll, see, particularly Dupal v Law Society (Court of Appeal of New South Wales, 26.4.1990, unreported, per Kirby P and Handley JA).

33 However, it would appear that the Tribunal construed this submission as one to the effect that where there is a finding of misappropriation there must be an order for striking off. It properly rejected that idea.

34 The Law Society’s submission was that this was at least the ordinary case and that when one added all the other unsatisfactory aspects of the conduct of the respondent, in particular that the respondent still does not appear to recognize the gravity of his misconduct, striking off was the only possible outcome of the proceedings.

35 It is not necessary to examine all the authorities referred to by the Tribunal or in the written submissions on this point. However, for myself, I would not agree that, in view of the strong words of the judges in Dupal, it was open to the Tribunal, based on its own previous decisions, to reach the view it expressed at [141] that, even in an “ordinary” case (of misappropriation) an order for striking off might not be appropriate.

36 However, whatever might be meant by the expression “ordinary case”, it was open to the Tribunal (and to this Court) to say that the present is less serious than the “ordinary” case.

37 The respondent contended that, although “technically” there was a misappropriation of Mr Rafter’s $35,000, he genuinely believed that he was entitled to use the money the way he did.

38 The remarks of the Tribunal on this point are not entirely consistent. It seems to have accepted that the respondent genuinely believed that he was able to employ Mr Rafter’s $35,000 in the Byron Bay project. However, it took the view that there was no rational basis for such belief. At [105] of the first judgment, it indicated that if there was such a belief it was “not founded on the contract or on reality” and that the respondent in his own mind had constructed a scenario which he considered relieved him from refunding Mr Rafter’s $35,000.

39 The respondent says that he had a bona fide belief that he could use the money and that he had no fraudulent intent.

40 The Law Society accepted that it never alleged fraud. However, the transaction revealed that the respondent was commercially unsophisticated, motivated by greed, blind to his basic duties as a solicitor and to the risks of professional practice and inclined to prefer his own interests to that of his clients. This is a prime example of its submission that the respondent even now has no proper appreciation of his duties as a solicitor.

41 There was discussion both before the Tribunal and before us as to the width of the word “misappropriation”. The base meaning of the word is “wrongful conversion” (Stroud’s Judicial Dictionary, 7^th ed, vol 12 at 1689). It must be noted that in most cases of appropriation of the property of another, claim of right is a good defence and to establish a claim of right, all the accused need show is that he or she had an honest belief in the claim and not also that that belief was based on logic or reason: R v Nundah (1916) 16 SR (NSW) 482, a proposition that has never been doubted.

42 Mr Lindsay complains that the respondent cannot both not cross appeal against the finding of misappropriation and take the view on “penalty” that there was no real misappropriation. He submits that the respondent’s submissions are a collateral attack on the Tribunal’s findings on “liability” which should not be permitted in the deliberate absence of a cross appeal.

43 I do not sustain that complaint. It seems to me that the respondent is saying that whilst he accepts the finding, it is wrong to class every finding of misappropriation in the same light when considering the proper order to be made and that that is within his rights. As the word “misappropriation” has a wide ambit of meanings, this must be correct.

44 As the Tribunal points out, there have been a number of cases where “misappropriation” has been found, but no striking off order has been made. Although some of these decisions may be a tad suspect, others are not.

45 Thus in Legal Practitioners Complaints Committee v Edward [2007] WASC 287, the Full Bench of the Western Australian Supreme Court did not consider it appropriate to strike off a solicitor who had misused trust funds. It considered that the public were sufficiently protected by orders controlling the future practice of the solicitor.

46 I will return to complaint (B), but first consider the other complaints.

47 As to complaint (A), there was admitted borrowing contrary to the rule. However, it was on one isolated occasion. Although unauthorised borrowing of client’s money is a serious matter, were this the only breach, it would not lead to striking off.

48 As to (C), the Law Society notes that it is now conceded that this matter is one of professional misconduct.

49 The fault was in not notifying the Law Society that a bankruptcy petition had been served on the respondent. His excuse was that he did not realise his obligation. The information was furnished to the Law Society about two months late.

50 The Tribunal considered the breach minor. Unfortunately it did not give effect to s 67(3). This error probably means that this Court must itself consider the order that should be made in the light of this error.

51 Whether or not complaints (D) or (E) were made out as professional misconduct, the Law Society submits that what occurred again demonstrated that the respondent has no proper appreciation of the professional obligations of a solicitor.

52 Again, the Law Society points to evidence given by the respondent before the Tribunal which it says demonstrates that, even at the hearing, he had no proper appreciation of his obligations.

53 On the same line, the Law Society contends that the filing of the cross appeal and the indication of a notice of contention show that the proper realisation of his conduct has still not struck home.

54 Apart from relying on the approach of the Tribunal, the respondent asserts that the breaches were isolated ones, there was no evil intent involved, he is now 63, in poor financial circumstances, he has lost his practice over the matters and it would be a matter of extreme hardship for him now to be deprived permanently of his ability to earn a living.

55 Further, Mr Rafter’s money was repaid in full shortly after the Tribunal’s decision.

56 The Tribunal rightly rejected most of this plea. Hardship to the respondent is regrettable, but the prime object is the protection of the public.

57 As noted earlier, the error made below means that this Court must itself consider the proper order taking into account that complaint (C) must be found to be a matter of professional misconduct.

58 The authorities make it clear that the mandate of the Tribunal and this Court is to protect the public and that any idea of punishment is at least secondary.

59 There are a variety of orders which can be made if a solicitor is found guilty of professional misconduct ranging from a reprimand to striking off the roll.

60 The authorities justify the proposition that an order for striking off is made when the court considers that the Law Society has established that the solicitor is “permanently unfit to practice,” or as this Court more precisely held in Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93, he or she is likely to be unfit to practice for the indefinite future.

61 The answer to this enquiry must be assessed in the light of the findings of fact made below after adjusting for the error noted earlier.

62 It is also important to remember that the Division of the Administrative Decisions Tribunal which deals with disciplinary matters concerning solicitors is predominantly constituted by senior solicitors. Its findings come close to the findings of a specialist tribunal which should not lightly be disturbed on appeal.

63 The matter is one of fine balance. There is considerable force in the submissions of the Law Society.

64 Although complaint (C) resulted in a finding of professional misconduct, the prime thrust of unfitness was the finding on complaint (B).

65 Complaint (B) involved a finding of misappropriation. As noted earlier, the authorities establish that in the “ordinary case”, where a solicitor has been found to have been guilty of misappropriation, the result is an order for striking off the roll absent exceptional circumstances.

66 It seems to me that as good an approach as any to the proper order is to look at the hypothetical “ordinary” case and examine whether the present case is more or less serious than such a case and then consider whether the Tribunal’s order was “within the range” for such a case.

67 The factors indicating that this is worse than the ordinary case are that there are complaints (A) and (C) in addition to (B). Further, there is material to suggest that the respondent even now does not fully appreciate the seriousness of his breaches of professional standards.

68 I must confess some unease about this last proposition for two reasons; first, the warnings in Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 and, secondly, the express finding of the Tribunal at [141]:

In our opinion this Respondent has learned his lesson, is very contrite, understands his duties and is unlikely to offend again. In this regard it is significant that in his 10 years of practice he has not come to attention other than for the matters referred to in our Decision 23 June 2009 and in which findings were made in his favour.

69 The factors pointing the other way are that the misappropriation of the $35,000 was a one off case and is at least coloured by the surrounding circumstances, the breach of (A) was de minimis and that, since the orders made by the Tribunal, the respondent has taken the courses offered and sat the examinations set by the College of Law in Trust Accounts and Ethics. He is awaiting his results.

70 Furthermore, the assessment of what, in effect, was a specialist tribunal was that this respondent was not presently permanently unfit to be a solicitor.

71 Although I have considered this a borderline case, I consider that the material does not justify me being satisfied that the respondent is unfit to practice as a solicitor for the indefinite future.

72 Thus I would dismiss the appeal with costs.

**********