LAW SOCIETY OF NEW SOUTH WALES v BANNISTER [1993] NSWCA 157

LAW SOCIETY OF NEW SOUTH WALES v BANNISTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, HANDLEY and SHELLER JJA 20 July 1993, 27 August 1993

[1993] NSWCA 157

The respondent Solicitor acted on a redemption application to the Compensation Court. An award of $43,000 was made to the client. The Solicitor asked the client to pay $3,000 by way of costs, knowing that he was not so entitled. The Solicitor caused the redemption cheque to be endorsed by the client and paid into his firm's trust account and then drew cheques for $40,000 and $3,000 in favour of the client. The $3,000 cheque was cashed and the proceeds given to the Solicitor who appropriated the money to his own purposes. The Solicitor later claimed costs from the client's employer; this was not revealed to the client.

The matter was not made known to the Law Society until police, acting on a complaint from the employer, drew the matter to its attention.

The Legal Profession Disciplinary Tribunal made a finding of professional misconduct and imposed a fine of $10,000. The Law Society appealed, claiming that the Tribunal had erred in finding that the Solicitor was fit to continue to practise, although the Society had not urged that his name be removed from the roll before the Tribunal.

Held: The Solicitor's conduct showed him to be unfit to practise; protection of the public required that his name be removed from the roll.

Gleeson CJ I have had the advantage of reading in draft form the judgment of Sheller JA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Handley JA I agree with Sheller JA.

Sheller JA This is an appeal by the Law Society of New South Wales (the Law Society) pursuant to s164 of the Legal Profession Act 1987 (the Act) from a determination of the Legal Profession Disciplinary Tribunal made on 18 October 1990 after a hearing into an amended complaint made under s135 of the Act and dated 20 December 1989 against the respondent solicitor, Francis William Bannister (the Solicitor). The complaint in its original form was dated 31 January 1989.