THE LAW SOCIETY OF NEW SOUTH WALES v KEEFE [1989] NSWCA 207

THE LAW SOCIETY OF NEW SOUTH WALES v KEEFE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 12, 13 October 1989, 15 November 1989 [1989] NSWCA 207

LEGAL PRACTITIONERS — solicitor — professional misconduct — breaches of Legal Practitioners' Act 1898 — sole practitioner in compensation and litigation practice — specific complaints of unauthorised deductions from compensation award moneys and common law damages verdicts of amounts on account of costs — whether general authority to solicitor to deduct amounts — whether moneys received paid into personal account amount to deliberate misapplication of client's moneys — whether deduction from award moneys in compensation cases constitutes a breach of s55 and s56 Workers' Compensation Act 1926 — held: (1) The solicitor's practice of deducting costs from workers' compensation payments paid to him on the worker's behalf was unlawful, contrary to s56(2) Workers' Compensation Act 1926 and constituted professional misconduct; (2) Nonetheless, on this and other findings, the Court would not disturb the opinion of the Committee that the solicitor had not acted with deliberate dishonesty; (3) In two cases where the solicitor had admitted conscious wrong-doing, the Court was authorised to substitute its opinion of such wrong-doing for the contrary conclusion of the Committee; (4) Nevertheless, for the protection of the public, it was not necessary in all of the circumstances to remove the name of the solicitor from the roll of solicitors; (5) A fine of the maximum of $10,000 was therefore confirmed but the solicitor was required to give additional undertakings to the Court which the Court required as a further assurance for the protection of the public.

WORKERS' COMPENSATION — costs — deduction of costs from compensation award moneys — prohibition in S56(2) Workers' Compensation Act 1926 (see now s122 Workers' Compensation Act 1987) — meaning and requirements of — held: (1) The prohibition on the deduction of costs from compensation moneys contained in s56(2) was plain and clear in its requirements; (2) The prohibition was not confined to solicitor and client costs but provided for the protection of a worker's entitlement to compensation; (3) A routine practice of deducting costs from award moneys even where later reimbursed upon receipt of costs was contrary to the Act, unjustified by law and amounted to professional misconduct; (4) Nonetheless, in the circumstances of the case, upon the findings of the Statutory Committee as to the belief of the solicitor, the Court would not disturb the finding that the solicitor had not wilfully and deliberately acted contrary to law in making the deductions he did. Legal Aid Commission Act 1979, s41.