Council of the Law Society of New South Wales v XX [2025] NSWCA 4

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v XX [2025] NSWCA 4 Hearing dates: On the papers Date of orders: 04 February 2025 Decision date: 04 February 2025 Before: Bell CJ; Payne JA; Stern JA Decision: 1. Declare that the Respondent is not a fit and proper person to remain on the Roll of Australian Lawyers maintained by the Court under s 22 of the Legal Profession Uniform Law (NSW) (the Roll). 2. Order that the name of the Respondent be removed from the Roll. 3. Order that the Respondent pay the Applicant's costs of, and incidental to, these proceedings. 4. Subject to order 8, an order that the Respondent be referred to by the pseudonym (XX) in these orders and the reasons for judgment. 5. Pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Act), and subject to the exceptions set out in Orders 9 to 14 below, on the basis of the ground in s 8(1)(c) of the Suppression Act the publication of information tending to reveal the identity of the Respondent in a manner which identifies the Respondent as the person who is alleged to have engaged in the conduct, the subject of these proceedings, is prohibited. 6. The Respondent's former law practices be referred to by the pseudonyms XX Law and YY Lawyers in the public version of any orders or judgments in this Court. 7. Pursuant to s 11 of the Suppression Act, Orders 4 to 6 inclusive apply throughout the Commonwealth. 8. Orders 4 to 7 inclusive apply until the expiration of 18 months after the Respondent's release to parole from his current custodial sentence in District Court proceedings 2019/00048381 and 2019/00363260. 9. Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of any information to any Court or Tribunal. 10. Orders 4 to 7 inclusive do not prevent any Court or Tribunal from making an order that information, whether or not it tends to reveal the identity of the Respondent, may be published (or, for the avoidance of doubt, disclosed). 11. Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information to the New South Wales Police, or to the Australian Federal Police. 12. Orders 4 to 7 inclusive do not prevent the publication (or, for the avoidance of doubt, the disclosure) of information for any one or more of the following purposes: a. the Council of the Law Society of New South Wales and or the Law Society of New South Wales investigating, handling and/or otherwise dealing with matters, allegations, claims or complaints involving the Respondent or any law practice, legal practitioner or former legal practitioner with which the Respondent has been associated, including but not limited to claims on the Fidelity Fund (being the fidelity scheme administered by the Law Society of New South Wales); b. the Council of the Law Society of New South Wales and/or the Law Society of New South Wales seeking legal advice in relation to the Respondent and/or matters, allegations, claims or complaints against or involving the Respondent or any law practice, legal practitioner or former legal practitioner with which the Respondent has been associated, including but not limited to claims on the Fidelity Fund; c. the Council of the Law Society of New South Wales instituting and/or carrying on legal proceedings against or involving the Respondent in any Court or Tribunal; and/or d. the exercise of the receiver's functions in relation to the law practice known as XX Law and/or the law practice known as YY Lawyers, whether by the receiver (whether present or his successor), or by any delegate, associate, employee or legal representative of the receiver. 13. Orders 4 to 7 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of: a. information about the suspension, or status, of the Respondent's practising certificate by the Council of the Law Society of New South Wales; b. information concerning claims which may be made against the Fidelity Fund in relation to the Respondent, XX Law or YY Lawyers, or any other law practice with which the Respondent has been associated including but not limited to information inviting any person who considers they have a claim to make one; and/or c. information concerning the receivership and/or management of XX Law or YY Lawyers, including but not limited to information concerning the appointment of any receiver and/or manager to XX Law or YY Lawyers, whether such publication or disclosure is, or has been, made before or after the making of these orders. 14. Orders 4 to 7 inclusive do not prohibit the publication (or, for the avoidance of doubt, the disclosure) of any information: a. by the Council of the Law Society of New South Wales and/or the Law Society of New South Wales, the receiver of XX Law or the receiver of YY Lawyers, the manager of XX Law or the manager of YY Lawyers to any client, former client or purported client of the Respondent, XX Law, YY Lawyers or any other law practice, legal practitioner or former legal practitioner with which the Respondent has been associated or has purportedly been associated for the purposes of providing such client, former client or purported client with information reasonably necessary to permit them to take steps to protect their rights and/or interests; or b. by any such client, former client or purported client for the purposes of taking such steps as are reasonably necessary to protect their rights and/or interests, including but not limited to seeking legal or other professional advice and/or commencing proceedings (whether against the Respondent or not), or to assist with any investigation or proceeding concerning the Respondent, whether such publication or disclosure is, or has been, made before or after the making of these orders. Catchwords: LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of offences relating to misappropriation of trust funds – where Respondent engaged in, or represented that he was entitled to engage in, legal practice following the suspension of his practising certificate and the issue of Supreme Court injunctions restraining him from legal practice Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8, 10, 11 Crimes Act 1900 (NSW) s 192E(1)(b) Evidence Act 1995 (NSW) s 91 Legal Profession Uniform Law (NSW) ss 10, 11, 22, 135, 138, 264 Supreme Court Act 1970 (NSW) ss 22, 23 Cases Cited: Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 Budniak v NSW Trustee and Guardian [2019] NSWSC 237 Council of the Law Society of New South Wales v Croke [2024] NSWCA 195 Council of the Law Society of New South Wales v Duncan [2024] NSWCA 147 Council of the Law Society of New South Wales v Green [2022] NSWCA 257 Council of the Law Society of New South Wales v Li [2024] NSWCA 218 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Council of the Law Society of New South Wales v XX (No 4) [2021] NSWSC 192 Council of the Law Society of New South Wales v XX [2019] NSWSC 874 Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141 Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 Council of the Law Society of NSW v XX (No 2) [2019] NSWSC 1079 Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; (2009) 258 ALR 768 Council of the New South Wales Bar Association v Perry [2007] NSWCA 111 Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 Council of the NSW Bar Association v Rollinson [2024] NSWCA 84 Hilton v Legal Profession Admission Board [2017] NSWCA 232 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258 Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 R v XX [2020] NSWDC 771 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) XX (Respondent) Representation: Counsel: B Tronson with C Hamilton-Jewell (Applicant) P Lange (Respondent)