MALFANTI v THE LEGAL PROFESSION DISCIPLINARY TRIBUNAL and ANOR [1993] NSWCA 171

MALFANTI v THE LEGAL PROFESSION DISCIPLINARY TRIBUNAL and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 23 August 1993, 23 August 1993

[1993] NSWCA 171

SOLICITOR — Debit in trust account — finding of professional misconduct — tribunal gave no reasons for concluding that solicitor deliberately or was recklessly indifferent in disregarding his obligations under s41 of the Legal Practitioner Act — appeal by solicitor.

COSTS — unreasonable prolongation of proceedings — investigative function of tribunal — failure of law society to adduce prima facie case — findings against solicitor reversed — order as to costs before Tribunal challenged

SOLICITOR — failure to register old system mortgage — solicitor held title deeds.

SOLICITOR — charges of professional misconduct — ten grounds asserted by Law Society — hearing over four days — majority of grounds dismissed — no evidence adduced by Law Society to substantiate these grounds — solicitor required to give evidence in the absence of a prima facie case against him — observations as to procedure before Tribunal.

HELD: No evidence before the Tribunal allowed it to conclude that there had been a wilful breach of s41 - breach occasioned by existence of debit was of trivial magnitude and could not amount to professional misconduct - there is nothing wrong with a solicitor maintaining in his own name a trust account providing that U is always in credit.

Allinson v General Council of Medical Education AND Registration [1894] 1 QB 750 applied.

HELD: conduct could not amount to professional misconduct.

(i) There is no reason why a solicitor should not be able to make a no case submission in disciplinary proceedings.

Re Veron; Ex Parte Law Society of New South Wales (1966) 84 WN (NSW) Pt1l 136, considered.

(ii) The obligation requiring a solicitor to assist the Tribunal in professional misconduct proceedings does not require the solicitor to enter the witness box to reply to unsubstantiated allegations incapable of establishing a case of professional misconduct.