Terepo v Council of the Law Society of New South Wales [2022] NSWCA 210

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Terepo v Council of the Law Society of New South Wales [2022] NSWCA 210 Hearing dates: 16 August 2022 Date of orders: 25 October 2022 Decision date: 25 October 2022 Before: Bell CJ; Macfarlan JA; Mitchelmore JA Decision: (1) The Court orders that the Law Society's summons in proceedings 2020/301529, being the proceedings for removal of Ms Terepo's name from the Roll, be dismissed with no order as to costs. (2) In proceedings 2021/00075408, being Ms Terepo's appeal against the Tribunal's orders, the Court makes the following orders: (a) Appeal allowed in relation to Ground 1 of the Amended Notice of Appeal filed on 21 October 2021. (b) Order 1 made by the New South Wales Civil and Administrative Tribunal on 2 July 2018 is set aside and in lieu thereof, the Court declares that the Appellant is guilty of professional misconduct in respect of the following conduct: (i) the Appellant misappropriated the sum of $850 withdrawn in cash on 9 December 2014 (Cash Withdrawal) from the trust account of her former law practice LMJ Lawyers (Law Practice); (ii) the Appellant caused a deficiency in the trust account of her Law Practice by the Cash Withdrawal; (iii) the Appellant breached s 255 of the Legal Profession Act 2004 by reason of the 39 withdrawals totalling $13,020.50 being made from the trust account of the Law Practice made between 3 November 2014 and 2 February 2015, including the Cash Withdrawal, and disbursing those amounts; (iv) the Appellant breached s 255A of the Legal Profession Act 2004 by making the Cash Withdrawal; (v) the Appellant breached s 264 of the Legal Profession Act 2004 in the period 20 February 2014 to 29 June 2015 in that the trust records of the Law Practice were not kept in such a manner as to disclose their true position; (vi) the Appellant breached s 263 of the Legal Profession Act 2004 in that she did not, as soon as practicable after becoming aware that there was an irregularity in the trust account of the Law Practice, give written notice of the irregularity to the Law Society; (vii) the Appellant failed to comply with the notice under s 371 of the Legal Profession Uniform Law (NSW) served on her on 30 May 2016 by failing to provide the written information and documentation sought in the Notice. (3) Order 1 made by the Tribunal on 26 April 2019 is set aside and in lieu, the Court orders that: (a) The Appellant not be permitted to apply for a new practising certificate unless the following condition is satisfied: The Appellant must, at her own expense, undertake, complete and pass (achieving a pass mark of not less than 70% or equivalent as approved by the Director, Legal Regulation of the Law Society (Director) acting reasonably) the Ethics component of the Practical Legal Training course conducted by the College of Law and the Trust Account component of the Practice Management course conducted by the Law Society of NSW (or such other course(s) as may be approved by the Director acting reasonably). (b) The Appellant is to provide to the Director the original result notification from the provider/s of those courses. (4) Note that the Court makes no order as to the costs of the proceedings in the Court of Appeal. Catchwords: OCCUPATIONS — legal practitioners — misconduct and discipline — application by Law Society to remove from the Roll the name of a solicitor found guilty of professional misconduct and unsatisfactory professional conduct — appeal by solicitor against Tribunal (NCAT) decision — parties subsequently sought to have orders made by consent — the Court must satisfy itself as to the appropriateness of proposed consent orders APPEALS — Tribunal (NCAT) exceeded its jurisdiction — its finding of reckless indifference was impermissible because it went beyond the allegations put to it by the Law Society — on the application of both parties the Court set aside the Tribunal's order recommending removal of the solicitor's name from the Roll and in lieu ordered that the solicitor not be permitted to apply for a new practising certificate unless she satisfies an educational condition Legislation Cited: Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Regulation 2005 (NSW) Legal Profession Uniform Law 2014 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32; [2004] Aust Torts Reports 81–730 Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141 Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258 Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 Category: Principal judgment Parties: Sesilia Fehoko Terepo Council of the Law Society of New South Wales Representation: Counsel: K Qoro (Sol) (Applicant) C Webster SC with P A Maddigan (Respondent)