JOBNAME: No Job Name PAGE: 1 SESS: 1 OUTPUT: Mon Oct 22 15:50:34 2007 /reports/caseml]/case/urj/9706885 LAW SOCIETY OF NEW SOUTH WALES v WALSH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 5 PowELL, BEAZLEY JJA and CLARKE AJA 12 June 1997, 15 December 1997 [1997] NSWCA 185 Legal Practitioners — Misconduct and discipline — Solicitors — Complaints — Of professional misconduct — Of unsatisfactory professional conduct — Whether conduct occurred in connection with the practice of law — Whether conduct justifies finding practitioner not of good fame and character — Appropriate order. Powell JA The questions which fall for decision in this appeal and cross-appeal from the determination of, and orders made by, the Legal Services Tribunal on 12 September 1996 in respect of an Information which had been laid by the Appellant on 8 March 1996 are: 1. whether, when dealing with the first ground of complaint in the Information, the Tribunal erred: a. in holding that the conduct of the Respondent the subject of that ground of complaint was not conduct occurring in connection with the practice of law; b. in holding that the conduct of the Respondent the subject of that ground of complaint was such that the Respondent was not of good fame and character and that, accordingly, that conduct constituted "statutory professional misconduct"; c. in holding that the fact that the Respondent's conduct the subject of that ground of complaint constituted "statutory professional misconduct" did not justify a finding that the Respondent was not a fit and proper person to remain on the roll of legal practitioners; and d. in holding that the appropriate protective order to be made in respect of the "statutory professional misconduct" which it had held established was for the imposition of a fine of a $8,000.00; 2. whether in respect of the third ground of complaint, which ground of complaint it held not established, the Tribunal erred: a. in holding that it would have been unreasonable to expect that the Respondent should have made any review of the facts prior to advising the Appellant that he had not used a Power of Attorney granted to him by his mother after his mother's death; b. in failing to hold that the Respondent was guilty of unsatisfactory professional conduct and professional misconduct in failing to make proper inquiries as to the facts reasonable available to him prior to responding to the Appellant; c. in holding the complaint not established; 3. in respect of the fourth ground of complaint, which complaint the Tribunal held not established, the Tribunal erred: 2 UNREPORTED JUDGMENTS a. in failing to hold that the conduct of the Respondent the subject of that complaint fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner,. b. in holding that the conduct of the Respondent the subject of this ground of complaint was mere negligence and, thus, did not constitute unsatisfactory professional conduct; c. in holding the complaint not established; 4. whether, in respect of the fifth ground of complaint, the Tribunal erred: a. in holding that the conduct of the Respondent, the subject of that ground of complaint, was conduct occurring in connection with the practice of law; b. in holding that the conduct of the Respondent, the subject of that ground of complaint, constituted unsatisfactory professional conduct; and c. in holding that the appropriate protective order to be made in respect of the conduct of the Respondent the subject of that ground of complaint was for imposition of a fine of $2,000.00; 5. in the event that it be held that either, or both, of the protective orders which were made by the Tribunal in respect of the first and fifth complaints was, or were, inappropriate, what is the appropriate order, or what are the appropriate orders, to be substituted for the order, or the orders, made by the Tribunal. Such difficulties as arise in the resolution of those questions are, I regret to say, the result of the manner in which the Appellant conducted its investigations before formulating, the manner in which the Appellant formulated, its complaints the subject of the Information, the manner in which the Appellant conducted the hearing of the Information before the Tribunal and what I can only describe as the somewhat ambivalent stance taken by the Appellant on the hearing of this appeal. However, before proceeding to examine the questions to which I have earlier referred, it is necessary to provide some background material as to the Respondent, and a statement, in as short a form as the circumstances permit, of the facts which gave rise to the complaints which were later incorporated into the Information which was laid by the Appellant against the Respondent. The Respondent, who was aged 61 years at the time of the hearing before the Tribunal, was the son, and one of the three children, of John Stanley Walsh and Mavis Mary McArthur Walsh (to the latter of whom I shall refer as "the deceased"), the other two children of the marriage being the Respondent's sisters, Beverley Dawn Brain (formerly Goldthorp, and then Phillips) and Dianne Marilyn Farlow. The Respondent appeared to have commenced employment in the Petty Sessions Branch of the Department of Attomey-General and of Justice, as it was then known, in about 1952, remaining in that employ for a period of about 2 years. Thereafter, in about 1954, the Respondent entered into articles of clerkship and commenced to undertake the examinations conducted by the Solicitors Admission Board. After completion of the period of his articles, the Respondent, so it would seem, was employed as a managing clerk until he completed the examinations required for admission, following which he was admitted as a solicitor on 23 November 1962. Upon admission, the Respondent appears to have entered into partnership with his employer in a practice known as Robert A URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 3 Patrick & Son. Thereafter, and up to and including the hearing before the Tribunal, the Respondent practised continuously as a solicitor either in partnership or as a sole practitioner. In the years after his admission, the Respondent, on a number of occasions, served as a member of various professional bodies and as a member of various committees of those bodies. Originally the Respondent was involved in the formation of the St George Sutherland Law Society, subsequently serving on the committee of that Society for a number of years prior to being elected its President for the year 1976. In 1986, so it would seem, the Respondent was elected a life member of that Society. In 1976 the Respondent was elected as a Suburban Councillor of the Appellant for a term of 2 years, at the conclusion of which term he was re-elected for a further term of 2 years. In 1980 the Respondent as elected as an ordinary Councillor of the Appellant for a term of 3 years, at the conclusion of which term, so it would seem, he was elected for a further term of 3 years. During the period of 10 years in which he was a Councillor of the Appellant, the Respondent served as a member of numerous committees of the Appellant, became a member of the Executive Committee of the Appellant and held the office of Treasurer. After retiring from the Council of the Appellant, the Respondent, as it would seem, served as a member of the Arbitration Liaison Committee, and of the Law Cover Claims Committee, of the Appellant. In addition to serving as a member of those professional bodies, the Respondent between 1983 and the end of 1995 acted as an Arbitrator of the Local Courts, of the District Court and of the Supreme Court - the Respondent's appointment as an Arbitrator of the District Court and of the Supreme Court was not renewed pending the determination by the Tribunal of the complaints which had been made by the Appellant against him. Meantime, on 31 December 1984, the Respondent had been appointed a Notary Public. Although the various complaints, the subject of the Information laid by the Appellant against the Respondent, arose out of actions taken by the Respondent in relation to the deceased's estate following her death, it is necessary to record a number of matters which occurred prior to the deceased's death on 2 July 1988. On 3 March 1967, the deceased made and published her last Will and Testament. By her said Will the deceased provided (inter alia) that, in the event of her husband predeceasing her - which event occurred on 15 October 1978 - the Respondent and Mrs Brain (then known as "Beverley Dawn Goldthorp") be appointed the executors of her Will and trustees of her estate, and gave devised and bequeathed the whole of her estate upon trust, after payment of all her just debts, funeral and testamentary expenses, to divide the balance equally between the Respondent, Mrs Brain and Mrs Farlow (then known as "Dianne Marilyn Walsh"). At the date of the deceased's death, her estate was a substantial one, the documents which were filed in connection with the later application for a grant of Probate of her Will suggesting that the nett value of the estate was of the order of $1,300,000.00, the substantial portion of which - approximately $1,200,000.00 - representing the value of a number of parcels of real estate which were owned by the deceased. One of those properties was a farm at Hillville, near Taree, on which the deceased lived until her admission to a nursing home in 1987. The other properties seem to have been two detached cottages, and a pair of 4 UNREPORTED JUDGMENTS semi-detached cottages, at Brighton-le-Sands and another cottage at Blakehurst. All of the properties at Brighton-le-Sands appear to have been the subject of protected tenancies under the Landlord and Tenant (Amendment) Act 1948, and all of them, at the time of the deceased's admission to the nursing home, were in a run down condition and, as it would seem, were in need of extensive maintenance and repairs. Although there appears to have been some dispute about the matter, it seems tolerably plain that, by July 1986, the deceased's health had deteriorated and that she was having difficulty caring for herself at home - some of the material which has been placed before the Court would tend to indicate that, by this time, the deceased was suffering from senile dementia of the Alzheimer's type and that the disease process was moderately advanced. If this be so, then it may, at least, be doubted whether the Power of Attorney to which I shall next refer was ever effective (see, for example, McLaughlin v Daily Telegraph Newspaper Company Ltd (No 2)!; City Bank of Sydney v McLaughlin2). Be that as it may, the Respondent - he says, but she denies, at the instigation of Mrs Brain - prepared a form of General Power of Attomey, which Power of Attorney was intended to be an enduring, or protected, power (Conveyancing Act s163F), for execution by the deceased appointing the Respondent and Mrs Farlow - the latter of whom, with her husband, then lived on a farm adjacent to that on which the deceased lived - severally to be her attorneys, and forwarded the form of Power of Attorney to Taree where it was executed by the deceased and witnessed by a local solicitor - to see whom the deceased appears to have been taken by Mrs Farlow - who also gave the Certificate provided for by s163F(2) of the Conveyancing Act 1919. The Power of Attomey appears as if it were registered in the Land Titles Office shortly thereafter. The deceased appears to have been admitted to a nursing home in Sydney in September 1987 or thereabouts - it appears then, or at least shortly after, to have been understood by the Respondent and each of his sisters that the deceased's life expectancy was not great and that she would never return to her home at Hillville. The events which, according to the Respondent, followed upon the deceased's admission to hospital, in my view, do not reveal the Respondent or his sisters in any favourable light - indeed, even if one accepts the Respondent's version of the events which occurred, it is, in my view, clear, that, at the very least, the Respondent and Mrs Farlow acted in a way which was completely at odds with their position as the deceased's attorneys. It would appear that, shortly after the deceased's admission to the nursing home, the Respondent and his sisters went to the deceased's home at Hillville and, during the course of a week-end, went through the deceased's personal effects, furniture and furnishings, and divided them between themselves, Mrs Brain and Mrs Farlow sharing the deceased's jewellery - with the exception of a few of the less valuable pieces which were given to the Respondent's wife - while ornaments, crockery, cutlery and furniture was shared between the three of them and taken away. 1. Law Society of New South Wales v Bannister (unreported, Court of Appeal, 27 August 1993); McBride v Walton (unreported, Court of Appeal, 15 July 1994). 2. (1909) 9 CLR 615, affd (PC) (1914) CLR 598 URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 5 Although the position is not entirely clear, it would also seem that it was at about this time when Mrs Brain sold her then home at Manning Point with a view to moving to Sydney and buying a home here. It would also seem that, at about the same time, one of the semi-detached cottages at Brighton-le-Sands became vacant. There seems to be little doubt that the Respondent and his sisters, at the time, believed that as, in the fullness of time, they would take the deceased's estate between them, it was open to them, at the time, to deal with the assets in the deceased's estate without regard to the interests of the deceased, and in such manna as produced the best result for them. That this was so is revealed by the following passages in a statement provided by the Respondent to the Manager of the Professional Standards Department of the Appellant under cover of a letter from his (the Respondent's) solicitors dated 20 July 1994 (AB 194-195): "All four properties (at Brighton-le-Sands) were run down, particularly those still subject to protected tenancies upon which the bare minimum had been expended. My mother's income was considerably in excess of her needs and she had considerable funds readily available. I drew to the attention of both my sisters that if the properties were inherited by us in a run down condition, the cost of carrying out the extensive maintenance and repairs to restore them to goad condition would not be tax deductable (sic) in our hands But if my mother had the work carried out it would be. I suggested that this should be done with 55 Moate Avenue as it was vacant and they both agreed with my proposal. I proceeded to have this done by a personal friend who is a licensed builder. He carried out a complete renovation of the kitchen and the bathroom, all necessary repairs and maintenance including repainting inside and out. Mrs (Brain) approached me to rent the property so that she could return to live in Sydney. My sister Dianne agreed with me that she could do so, and as she was our sister, we agreed that she could do so at a rental less than market rental, which to the best of my recollection was $100.00 per week. Before she moved in I arranged for floor covering of her choice to be laid in the kitchen and for the remainder to be re-carpeted throughout with carpeting of her choice. Thereafter the adjoining semi-detached cottages also became vacant, and with the concurrence of both Mrs (Brain) and Dianne, this property was renovated in a similar manner. My friend Keith Patrick was unable to undertake this work because of other commitments and a colleague of his Barry Whitlock undertook the task. Mrs (Brain) again approached me to ask if her daughter and her son-in-law Felicitee (sic) and Trevor Lawry who had then been married only a short while could rent that property and again Dianne and I agreed. My recollection is that while they were asked to pay a higher rental than Mrs (Brain) the rental to which we agreed was still less than market rental at that time." The Respondent's version of what happened shortly thereafter is recorded in an Affidavit sworn by him on 20 July 1993 in proceedings No ED2474 of 1989, which had been brought against him by Mrs Brain, in the following terms (AB 83-85): "...Some few months after (the deceased 's) admission to the nursing home it was acknowledged between (Mrs Brain, Mrs Farlow) and myself that (the deceased) was never going to be able to return to her home and that her present needs were being more than adequately catered for by the income generated from her properties and shares. It was agreed that whilst ever this position continued Mrs Farlow, her husband and family should move into the home at Hillville, that (Mrs Brain) should cease to pay rent on the property of (the deceased) at 55 6 UNREPORTED JUDGMENTS Moate Avenue, Brighton-le-Sands in which she had been living since her return to Sydney from Manning Point and that I would cease paying interest on (a) personal loan (of $20,000.00) which (the deceased) had made to me. It was further agreed between us that should (the deceased's) health or financial situation vary then the position would have to be reconsidered. My recollection is that it was on the same week-end that Mrs Brain) again raised the question of her being provided with financial assistance so that she could buy a home in Sydney. After (Mrs Brain) had moved into the deceased's property at 55 Moate Avenue, Bright-le-Sands (she) sold her former home at Sandridge Road, Manning Point for some ninety-five thousand dollars ($95, 000.00) and was anxious to buy a home of her own in Sydney. The matter was discussed between myself (Mrs Brain) and Mrs Farlow and during the course of the conversation I indicated that I wished ultimately to acquire the original family home in Stuart Street, Blakehurst and Mrs Farlow indicated that she wished to acquire the farm property at Hillville. An agreement was reached between the three of us that I would purchase the Blakehurst property, Mrs Farlow would purchase the Hillville property and I would repay the loan that I had received from my mother. The deposits of forty thousand dollars ($40, 000.00) and fifty thousand dollars ($50, 000.00) to be paid by myself and Mrs Farlow respectively in respect of the properties to be purchased by us plus the repaid loan of twenty thousand dollars ($20,000.00) would then be advanced by (the deceased) to (Mrs Brain) by way of advancement from her estate. Additionally it was agreed that when our mother passed away (Mrs Brain) would be entitled to have the first opportunity to purchase one of the remaining properties at market value. None of these arrangements were (sic) documented as it was felt that this was unnecessary the whole transaction being between members of the family and I felt that I could accept the word of (Mrs Brain)... As a result of this arrangement (Mrs Brain) purchased the property 8 Shoalhaven Road, Sylvania Waters for the sum of two hundred and forty thousand dollars ($240,000.00) by contract dated 6 May 1988 which was completed on | July 1988. In addition to the monies which were to be advanced to her by (the deceased Mrs Brain) obtained a loan from the State Bank of New South Wales of forty thousand dollars ($40, 000.00). For that reason the one hundred and ten thousand dollars ($110,000.00) which (the deceased) was advancing had to be treated as a gift by way of advancement to her and as (the deceased's) attorney I agreed to this arrangement. The State Bank required confirmation of the arrangement and... I supplied (a Statutory Declaration) to the said Bank in response... The monies referred to above were paid by Mrs Farlow and myself in accordance with the direction of the solicitor for the vendor to (Mrs Brain) and did not pass through (the deceased 's) accounts." Although it is not entirely clear that this was so, it would seem more likely than not that, at about the same time when the arrangement as to which the Respondent had deposed in the passage from the Affidavit which I have just set out was made, another of the deceased's properties - a detached cottage at 62 Bruce Street, Brighton-le-Sands - became vacant. The fact that that cottage became vacant and the work which, so the Respondent says, was ultimately undertaken to render it habitable led ultimately to one of the matters of complaint in the Information which the Appellant was later to lay against the Respondent. In the statement to which I have earlier (p9 (supra)) referred, the Respondent wrote (inter alia) as follows (AB 195-196): URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 7 "The next property to become vacant was 62 Bruce Street, Brighton-le-Sands. This property was in such a state of filth and disrepair that it was uninhabitable. Both (Mrs Brain) and my sister Dianne inspected the property with me but not both at the one time. This property was a two bedroom cottage on a fairly large allotment. Both Keith Patrick and Barry Whitlock also inspected the property at my request and they suggested that in addition to complete renovation, the huge old style laundry be opened up via an archway from the kitchen and be converted into a dining room, so as to allow the use of the remaining rooms to change so as to effectively convert the cottage into a three bedroom cottage. The existing verandah was to be demolished and a new wider verandah with a bull-nose roof over constructed along the Western side of the kitchen, dining room and laundry extending across the rear of what was to become the third bedroom. The work to be done on this property was far more extensive than had been done on the other two properties but the potential increase in the value of the property and in potential rental income justified the expenditure. The proposal was discussed with and approved by both (Mrs Brain) and Dianne before the work was undertaken. I had plans drawn up for the extensions and alterations and approved by Rockdale Council. Keith Patrick was again able to undertake the work and again Barry Whitlock agreed to do so. The work was commenced in June 1988 and though considerable progress had been made before my mother's death on 2 July, 1988 months of work remained to be done. After my mother's death I met with my two sisters to discuss and consider the situation. What was to be done as regards to property a (sic) Bruce Street was the major problem. The property was at risk of being vandalised if work on it stopped and I could not expect the builder to continue with the work in hand if I was unable to continue to make payments to him as the work progressed Furthermore, I did not wish to have either my mother's good name or mine besmirched in any way. I told both my sisters that I thought that I would be able to continue to operate on my mother's accounts and to meet progress payments. Both (Mrs Brain) my co-executrix and my sister Dianne agreed at that time that I should do so. It is only now that (Mrs Brain) seeks to create problems for me when at the time she was a (sic) perfectly willing to endorse my proposed course of action. I did not use the Power of Attorney after my mother's death I had no need to. I was and continue to be well known to the staff of St George Bank (formerly St George Building Society) at its Hurstville Branch I did not sign withdrawals as my mother's attorney. I signed my own name. The staff of the bank accepted and acted upon them. I did so in what I then considered to have been in the best interests of the estate and the beneficiaries under the will." I must say that I find the statements made by the Respondent in the passages from his statement which I have just set out to be, at the very least, breathtaking, even if believed, but difficult, indeed, to believe. I say this for the following reasons: 1. as the Respondent was to admit during the course of the hearing before the Tribunal (AB 22), he appreciated only too well that, upon the death of the deceased, the Power of Attorney ceased to be of effect, albeit that he claims to have been unaware that, if, following the death of the deceased, he did any act or thing under or in pursuance of, the Power he would be guilty of a misdemeanour (Conveyancing Act 1919 s162A); 8 UNREPORTED JUDGMENTS 2. the Respondent was also aware at the time that, notwithstanding that he hat been appointed as an Executor of the deceased's Will and a Trustee of her estate, he had no title to deal with any of the assets in the deceased's estate until after a grant of Probate had been obtained. Thus, in a Statutory Declaration made by him on | November 1994, the Respondent declared (inter alia) as follows (AB 235-236): "The other beneficiaries were made aware by me that correctly all of my late mother's monies were not available to meet the estate's debts and obligations until after a Grant of Probate had been obtained" 3. it would seem that, had it not been for a falling out between the Respondent and Mrs Brain as to the manner in which certain of the assets in the deceased's estate were to be dealt with in, and as to the values to be attributed to others of the assets in, the deceased's estate for the purposes of Affidavit of Assets and Liabilities to be lodged in connection with the Application for a Grant of Probate of the deceased's Will, a grant of Probate could have been obtained by the end of July 1988, or shortly thereafter, that is, within a month, or a little more, of the deceased's death. That this was so is made clear by the following material in the Affidavit sworn by the Respondent in the proceedings in the Equity Division of the Court, to which Affidavit I have earlier referred, in which Affidavit the Respondent deposed (inter alia) as follows (AB 79-80): "On or about 20 July 1988 the Plaintiff attended at my office at Hurstville to sign documents in support of our joint application for a Grant of Probate of our late mother's will When the Plaintiff had perused the documents she said 'I'm not signing that, those valuations are not right'. A conversation ensued concerning the valuation of real estate situate at and known as 53 and 55 Moate Avenue, Brighton-le-Sands and 62 Bruce Avenue, Brighton-le-Sands... The Plaintiff indicated in the course of the conversation her belief that I was trying to cheat her as the values placed upon the properties were in her view to (sic) high I became most concerned that monies had been made available to the Plaintiff by my sister Diane Marilyn Farlow and myself pursuant to an agreement reached with the Plaintiff and which it seemed the Plaintiff was not now prepared to honour. I therefore made application for a Grant of Probate of my late mother's will with leave reserved to come in and prove. Notice of my intention to apply was published in the Sydney Morning Herald on 1 October 1988 and my application was fifed with the Court on 4 November 1988. " 4. on 21 July 1988, the Respondent, signing as "M M Walsh by her Attorney R J Walsh" executed, and delivered to the St George Building Society, as it was then known, forms of "Change of Account Ownership" requesting that the balance of funds held in three accounts, Nos 030961988, 010021180 and 019158326 be transferred to an account in the name of himself - only one of those forms, that relating to account No 010021180 (AB 258), bore the notation "ITF M M Walsh"; 5. thereafter, the Respondent drew from account No 030961988 the following sums on the following dates: 1 August 1988 $ 10,000.00 31 August 1988 $ 10,000.00 20 October 1988 $ 12,000.00 13 December 1988 $ 3,000.00 URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 9 those sums being paid by him to Mr Whitlock on account of progress payments for the work on the property at 62 Bruce Street, Brighton-le-Sands. Other withdrawals were also made from the other two accounts to which I have earlier referred as well as from other accounts in the name of the deceased in respect of which accounts the Respondent had earlier been nominated as an alternate signatory. As I have previously recorded, on 4 November 1988 the Respondent, having previously advertised his intention so to do, lodged an application for the to him of Probate of the deceased's Will. Notwithstanding the provisions of SCR Pt78 124(3), the Respondent did not, prior to filing the application for a grant, notify Mrs Brain of his intention so to do. The Respondent's explanation, given first in a Statutory Declaration made by him on 24 April 1996 (AB 282), and repeated in the course of his cross-examination before the Tribunal (AB 47-48) was that, not having ever had occasion to make an application for a grant of Probate reserving leave for another Executor, or other Executors, later to come in and prove (Wills Probate and Administration Act 1898 s41) he was not aware of the requirement of the rules, an explanation which, given that, at the time, the Respondent had been in practice as a solicitor for twenty-six years, and given that he claimed that, although he did read the rules, he overlooked the provisions of 124(3), I find difficult indeed to accept. Nor was this the only unusual feature about the application which the Respondent lodged. The Affidavit of Assets and Liabilities which, on this occasion, the Respondent prepared (AB 114-117), and to the correctness of which he deposed, differed in significant respects from the form of Affidavit of Assets and Liabilities (AB 103-106) which he had prepared for execution by himself and Mrs Brain in July 1988. In that Affidavit, the Respondent did not disclose, as assets of the deceased's estate, the properties at Hillville and at Stuart Street, Blakehurst, but included as assets of the estate of the deceased sums of $100,000.00 and $240,000.00, said to be debts owing to the deceased representing the balances payable by Mr and Mrs Farlow and the Respondent and his wife respectively in respect of agreements for sale alleged to have been made with the deceased. Further, the Affidavit of Assets and Liabilities did not disclose as a debt to the deceased the amount of $110,000.00 to which I have earlier referred which was said to be an advance to Mrs Brain against her share of the estate but included as an asset in the estate of the deceased: "The equitable estate or interest of the deceased in the property 8 Shoalhaven Road, Sylvania Waters... purchased in the name of (Mrs Brain)... for the sum of $240,000.00 of which the deceased contributed $110,000.00 and arising out of a resulting trust in favour of the deceased by virtue of such contribution." to which alleged equitable estate there was attributed a value of $110,000.00. Two explanations - not entirely consistent with each other - for the form taken by the second of the Affidavits of Assets and Liabilities prepared by the Respondent, have been proffered by him. In the Affidavit sworn by him in the proceedings in the Equity Division to which I have earlier referred, the Respondent deposed (inter alia) as follows (AB 81): "My mother passed away on 2nd July 1988 before the oral agreement hereinafter referred to could be put into effect and it appeared to me that notwithstanding the oral agreement a considerable saving in stamp duty could be achieved if the property at Blakehurst and the property at Hillville which were still in my late mother's name, were disclosed as assets in my late mother's estate 10 UNREPORTED JUDGMENTS and subsequently transferred in specie. It was for this reason that (the July Affidavit) was prepared in the manner in which it was. The Plaintiff took exception to the value placed upon the properties at 53 and 55 Moate Avenue, Brighton-le-Sands and 62 Bruce Street, Brighton-le-Sands. It was a condition of the oral agreement hereinafter referred to that she should have first choice of the remaining properties at market value when my mother passed away. As a result of the Plaintiff's attitude and in the belief that the oral agreement was enforceable I showed only the balance of the purchase monies which remained outstanding in respect of the Blakehurst and Hillville properties as assets and did not show the amount I owed my mother as an asset as this had in fact been repaid and made available to the Plaintiff " In the Statutory Declaration made by him on 24 April 1996, the Respondent, after referring to the oral agreement which I have earlier set out said (inter alia) (AB 281-282): As a consequence of this arrangement I saw myself as entitled to the Stuart Street property, pursuant to the agreement (subject to the payment of the balance of moneys) and my sister Dianne as entitled to Hillville (once again subject to the payment of further moneys). 5. Because of that agreement I treated the estate assets as including not those properties but the amount to be paid by myself (and my wife) and by my sister Dianne (and her husband) for the properties 6. For the same reason in the Affidavit I described the estate as having an equitable interest in the Sylvania Water property, to the extent of the money advanced to my sister Beverley out of my mother's funds. " When, during the course of his cross examination before the Tribunal, the explanation for the difference between the form taken by the July Affidavit and that taken by the November Affidavit and the form later taken by the Affidavit of Assets and Liabilities which was sworn by the Respondent and Mrs Brain in connection with their joint application for a Grant of Probate was explored, the Respondent gave the following - less than satisfactory - evidence, which evidence, in addition, tended to indicate that the Respondent's knowledge of, and attitude to (inter alia), the law of contract, the law of vendor and purchaser and the requirements of the revenue laws was rather less than it should have been. That evidence was (inter alia) as follows (AB 4144): "Q. There was a significant difference between the description of the assets in the two affidavits, wasn't there? A. Yes. Q. I think you said in your declaration that you regarded there as being some form of agreement which entitled you to describe the assets in the way in which you did in the affidavit of November 1988? A. That is perfectly correct. Q. And the agreement you referred to in your declaration is an agreement which you say was come to prior to your mother's death, wasn't it? A. Yes. Q. Mr Walsh, if that was an enforceable agreement, the proper thing would have been to have so described the estate's position in the September (sic) affidavit, wouldn't it? A. Regrettably it was an oral agreement. Q. Well, you concede there was an agreement, because it related to the real estate which wasn't enforceable? URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 11 A. Yes Q. One or other of the two affidavits has to be incorrect, doesn't it? A. Yes Q. And it is the second one, isn't it? A. No, the second one is perfectly correct. Q. You have conceded that the agreement was not an enforceable one? A. Yes, because it complied (sic) with the statute of frauds and I was stupid enough to trust my sister. Q. But, you knew when you prepared the second affidavit that whatever agreement you had, she was not going to adhere to it? A. At that time it was my belief that there was sufficient part performance of the agreement on the part of myself and my younger sister in order to enforce the agreement; that it was not in writing. Q. Mr Walsh, if that is the case, why didn't you set that out in the first affidavit in September? A. If the document, or if the agreement, had been in writing it would have been liable for stamp duty. In view of my mother's death, there would have been no stamp duty payable and the properties could have been transferred without any stamp duty, or any agreement in writing, and that was the basis It was because of the fact that no duty would have been payable by adopting that particular view towards it, that I prepared that first draft. Q. You conceded to me a few moments ago that had your sister signed the first affidavit, you would have filed it? A. Yes, it would achieve the same result. Q. But it differently describes the position of the estate, doesn't it? A. The position is different, yes; the overall assets remain the same. Q. The total value remains the same: A. Yes. Q. They can't both be right, can they? A. No. Q. And in relation to the affidavit that yourself and your sister subsequently filed, in respect of your joint application, what form did that take? A. I believe you have the document. I think it is among the documents that are there, and that was a document in which a compromise was reached in the proceedings between my sister and myself. Q. Which you subsequently filed in the application; an affidavit of assets and liabilities? A. Yes. Q. And are you suggesting that that affidavit of assets and liabilities was in the same form as the affidavit that you swore in November 1988? A. No. Q. It was different again, wasn't it? A. It was necessary to reach a compromise in the Equity proceedings I was advised to adopt that attitude and to accept that arrangement as being the appropriate view to be taken of the assets and liabilities of the estate, simply because it was not possible to prove otherwise. 12 UNREPORTED JUDGMENTS Q. Put shortly, after further examination of the position the proper description of the assets and liabilities of the estate, it was not as you set out in your affidavit in November 1988, was it? A. Put simply because of the dishonesty of my sister the assets as ultimate (sic) described in the joint application were not that as set out in my application. Q. The form which you ultimately proceeded on to obtain the joint grant, was different to that in the affidavit which you prepared in support of your own affidavit? A. It was. I was advised to accept that. Q. And you accepted the advice as being accurate? A. I accepted the advice as being appropriate, not accurate. Q. Well, you were not going to swear a false affidavit, were you? A. No. Q. So, it must be that you believed the situation to be as you deposed in the affidavit which you ultimately deposed and filed? A. I believed, in the light of the advice which I had been given, that my earlier view, since it could not be proved, was incorrect and that the appropriate affidavit, or the appropriate description of the assets and liabilities, was that which ultimately was agreed upon in a compromise agreement." After the Respondent had lodged his application for a grant of Probate, the Probate Office raised a requisition requiring him to give notice to Mrs Brain of the application. That notice appears to have been given to Mrs Brain on 20 December 1988. Thereafter, Mrs Brain retained Messrs Wilshire Webb to act on her behalf and, on 22 December 1988, that firm wrote to the Respondent a letter (AB 108) which was, in part, as follows: "Our client has instructed that she wishes to join in your application for probate of the Will dated 3 March 1967 of the late Mavis M Walsh Please submit probate documents to our office as soon as possible. Please also advise when the Notice of Intention to Apply for Grant of Probate was advertised We seek your confirmation that the application for probate and associated documents win be submitted to us. If we do not hear from you we will seek a separate application for probate on behalf of our client and seek the costs of the application against you." No reply to that letter having apparently been received meantime, on 4 January 1989 Messrs. Wilshire Webb lodged a form of general Caveat in the Probate Registry. Thereafter, on 12 January 1989, Messrs. Stockman and Evans, which firm had been retained by the Respondent to act for him, wrote to Messrs. Wilshire Webb a letter (AB 112) which was, in part, as follows: "Tn response to your letter to Mr Walsh of 22 December last, we are instructed to inform you that our client's application for a grant of probate has been lodged and presumably is being dealt with by the Court. We are further instructed that your client was given the opportunity to execute the documents with respect to the application for a grant of probate and refused to do so. We note the contents of the last paragraph of your letter under reply." Meantime, on 10 January 1989 - seemingly as the result of inadvertence at a time when the records of the Probate Registry were in the process of being entered onto a computer - a grant of Probate had issued in favour of the Respondent. URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 13 Thereafter, as it would seem, Messrs Wilshire Webb caused to be filed in proceedings No 101210 of 1989 in the Probate Division of the Court a Statement of Claim seeking an order for the revocation of the grant of Probate to the Respondent and for other orders. Why it was thought necessary for such proceedings to be filed when it would have been open to the Registrar, on application to him, to revoke the grant which had been made inadvertently and notwithstanding the filing of the Caveat (see, for example, In the Will of Christian3; Aslan v Kopf; Estate of Kopf*; Estate of Cosgrove5; Tristram & Coote's Probate Practice®; Williams Mortimer and Sunnucks: Executors Administrators and Probate7?; Geddes Rowland and Studdert: Wills Probate and Administration Law in New South Wales8) I do not know. Nor was this the only procedural aberration which attended those proceedings. It would seem that, for reasons which I find it completely impossible to understand, the proceedings to revoke the grant of Probate were transferred from the Probate Division to the Equity Division of the Court where they were given proceeding No 2474 of 1989. It would further seem that, on 16 June 1989, the proceedings came before one of the judges in the Equity Division of the Court and there were then made, by consent, a number of orders including an order that the grant of Probate to the Respondent be revoked and that Probate "of the estate" (sic) be granted to the Respondent and Mrs Brain jointly, which orders ought not to have been made in proceedings in the Equity Division of the Court. At the same time, so it would seem, it was noted that Mrs Brain and the Respondent acknowledged that Mrs Brain owed the Defendant the sum of $60,000.00 and that Mrs Brain owed Mrs Farlow the sum of $50,000.00 and that no interest should be paid in respect of such borrowings, a notation which I would have thought the Court ought not to have made since Mrs Farlow was not a party to the proceedings before the Court. It would further seem that, at about the same time, the Respondent, Mrs Brain and Mrs Farlow executed a Deed of Family Arrangement which Deed provided (inter alia) that, in the administration of the estate, the property at Stuart Street, Blakehurst would be transferred in specie to the Respondent, the property at Bruce Street, Brighton-le-Sands would be transferred in specie to Mrs Brain and the property at Hillville would be transferred in specie to Mrs Farlow, the values to be attributed to those properties for the purpose of calculating the ultimate entitlement of the parties to the deceased's estate being, for the Stuart Street property - $300,000.00, for the Bruce Street property - $210,000.00 and for the Hillville property - $150,000.00. It would seem that, on 25 October 1989, the Respondent and Mrs Brain swore what has been described as an Amended Affidavit of Assets and Liabilities, which Amended Affidavit was thereafter filed in the Court in connection with the application for a grant of Probate to the Respondent and Mrs Brain. The assets in the estate of the deceased and the values attributed to them in that Amended Affidavit of Assets and Liabilities were identical with those which had been disclosed in the Affidavit which had been prepared by the Respondent in July 1988. (1975) 25 FLR 89 28 June 1991 Powell J (unreported) 11 October 1991 Powell J (unreported) 21 Ed (1960) 427, 432 16 Ed (1982) 335 (1996) 331 (nl) SPIAAMARYW 14 UNREPORTED JUDGMENTS For some reason which does not appear, the grant of Probate provided for in the consent orders made on 16 June 1989 was not made until 12 December 1989. It seems dear enough that, notwithstanding the compromise of the proceedings which had been brought by Mrs Brain against the Respondent, and the later grant to them of Probate of the Will of the deceased, disputes between them continued. Those disputes led to Mrs Brain commencing further proceedings No 3002 of 1990 in the Equity Division of the Court, in which proceedings, so it would seem, Mrs Brain sought - rather inappropriately - "the removal of the (Respondent) as Trustee and Executor of the Estate pursuant to the Trustee Act 1925 (NSW) s6 and s70 and pursuant to the inherent power of the Court in the appointment of an appropriate person and substitution for the Defendant." Quite apart from the inappropriate nature of the relief which appears to have been sought at the time, the proceedings were defective for want of parties, as Mrs Farlow was not joined in the capacity of either plaintiff or defendant - the practice of the Court, whether such proceedings invoke the inherent, or the statutory, jurisdiction of the Court is that, in the absence of some reason why they should not be joined as parties, all persons interested in the relevant trust estate should, either, join as plaintiffs in, or, be joined as defendants to, or, at the very least, be given notice of, any application to remove the trustee, or to appoint a new trustee (see, for example, Richardson & Wrench Ltd v Plomley?; In re Hood's Will!®; Allison v Permanent Trustee Australia Ltd!!) although in applications for the appointment of trustee companies only persons entitled to the immediate receipt of corpus or income are normally required to join or to be served (Re Powell's Trust!2; Re Blomfield's Trust!3). In addition to filing a Defence to these further proceedings, the Respondent, in July 1990, filed a Cross-Claim - which was itself defective for want of parties as, despite her being a party to the Deed of Family Arrangement which was entered into as part of the compromise of the earlier proceedings, Mrs Farlow was not joined as a Cross-Defendant - in which Cross-Claim the Respondent sought against Mrs Brain an order in the nature of specific performance of the Deed of Family Arrangement insofar as it required the transfer to him of the property at Stuart Street, Blakehurst. Although, in the end, these further proceedings were, in their turn, compromised, that was not to occur until July 1993. Meantime, on 27 November 1990, Mrs Brain wrote to the Manager, Professional Misconduct Department (sic) of the Appellant, a letter (AB 152-155) in which she complained of what was described as the Respondent's "professional misconduct". In that letter Mrs Brain enumerated some sixteen grounds of complaint, of which, for present purposes, it is sufficient - since they encompass a number of the grounds set out in Mrs Brain's letter - to note but two: 1. continued use by the Respondent of the deceased's Power of Attorney to operate on the deceased's banking accounts after her death; and 2. failure by the Respondent to ensure that all of the assets in the deceased's estate were included in the estate for Probate and failure to ensure that valuations placed on assets were properly obtained. 9. (1892-1894) 15 NSWLR (eq) 131, 144-145 per Earl of Selborne 10. (1899) 16 WN 20 11. 8 September 1988 Powell J (unreported) 12. (1902) 19 WN 199 13. (1918) 35 WN 75 URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 15 The complaint was subsequently investigated by the Appellant's then Complaints Committee which, on 21 January 1991, resolved to dismiss the complaint, recording as its reasons: 1. to the extent to which the complaint related to the administration of the estate of the deceased, the proper forum to resolve the dispute was with this Court; and 2. on the information then before the Committee, it was not satisfied that the Respondent's conduct of which complaint was made fell into his duties as a solicitor. It would appear that Mrs Brain was not satisfied with the Committee's dismissal of her complaint and that, that being so, she, in reliance of the provisions of s137 of the Legal Profession Act 1987, as it then stood, applied to the Legal Profession Conduct Review Panel for a review of that decision. The Review Panel appears to have considered the Committee's decision in September 1991, at winch time the Panel resolved that the Appellant be given notice of the Review Panel's intention to recommend to the Attorney-General that the matter be referred to the then Legal Profession Disciplinary Tribunal pursuant to the provisions of s140(2) of the Legal Profession Act 1987 as it then stood. Notice to that effect was given to the Manager of the Professional Conduct Department of the Appellant under cover of a letter (AB 156- 157) written by the then Acting Registrar of the Review Panel on 3 September 1991, which letter, so far as is relevant, was in the following terms: "The following grounds were given by the Panel: 1. That Mr Walsh continued to use his mother's Power of Attorney after her death; 2. That he failed to establish an estate account requiring both executors to be signatories; 3. That he failed to ensure that all assets were included in the estate for probate; 4. That he applied for probate in his awn name to the exclusion of his sister who had been named as co-executor in his mother's will. The Panel is satisfied that Mr Walsh was not only acting in his capacity as an executor but also as solicitor for the estate with the appearance of his firm 's name as the solicitors for the estate in the documents lodged with the Probate application. The Panel acknowledges that the proper forum for resolving the dispute between the parties is the Supreme Court of NSW. However, the proper forum for dealing with the alleged improper conduct of the Solicitor is the Disciplinary Tribunal. " Thereafter - but seemingly not until October 1992 - the Professional Conduct Committee of the Appellant resolved that the Professional Standards Division re-open its file in respect of Mrs Brain's complaint and conduct further inquiries. That having been done, further information was sought from Mrs Brain in a letter (AB 158-160) dated 14 October 1992, to which letter Mrs Brain responded in a letter (AB 161-164) dated 8 December 1992 with which letter she enclosed a number of documents (AB 165-170) to support some of the matters to which she referred in her letter. Further information was sought from and provided by Mrs Brain in the early months of 1993. The further proceedings which had been brought by Mrs Brain against the Respondent appear to have been compromised by the making, by consent, of orders and directions contained in Short Minutes of Orders (AB 144146) which 16 UNREPORTED JUDGMENTS were filed in those proceedings on 23 July 1993. Those Short Minutes provided, in substance, for the appointment of an independent accountant to audit the Respondent's dealings with the deceased's estate and to report upon any defalcations and the like which were revealed by his audit. On the same day Mrs Brain wrote to the Appellant a letter (AB 179) which was in the following terms: "RE: MR R J WALSH Agreement has been reached in relation to the above matter. A copy of the terms are enclosed. Pending the verification of the estate accounts by an independent accountant, I advise, I am now satisfied in relation to the complaints made. Thank you for your attention to the matter to date." It will hardly come as a matter of surprise when I record that Mrs Brain did not remain satisfied for long. On 27 October 1993, Mrs Brain wrote again to the Appellant resurrecting her complaints. Thereafter, in November 1993, Mr P Jones, a member of the firm of W W Vick & Company, Chartered Accountants, delivered his report (AB 185-189) upon the state of the accounts of the deceased's estate, which report concluded (AB 189): "Apart from a minor difference of $227.85 we have formed the opinion, from the information presented to us, that the nett assets of the estate of the late Mavis Mary McCarthur Walsh have been distributed equally among the three beneficiaries." Notwithstanding this apparently final resolution of the matters of dispute between the Respondent and Mrs Brain, the Council of the Appellant thereafter - but not until 26 May 1994 - resolved (AB 149): 1. that the file be re-opened as a Law Society Complaint; 2. that, if necessary, a Trust Account Inspector be appointed to investigate the transactions in relation to the St. George Building Society Accounts; 3. that the Professional Standards Department follow up its inquiries of the Respondent's solicitors; and 4. that the matter be the subject of a report to the Council by 31 July 1994. On the following day, a letter (AB 190-192) was written by the Appellant to the Respondent's solicitors advising them that "the Council would like (the Respondent) to address (a number of matters)" of which matters it is sufficient, for present purposes, to note that they included: 1. the use by the Respondent of the Power of Attorney after the deceased's death, and, in particular, the use by the Respondent of the Power of Attorney to pay for the building work carried out by B S Whitlock Constructions; 2. the failure of the Respondent to notify the St George Building Society of the deceased's death; 3. the application by the Respondent for Probate in his own name to the exclusion of Mrs Brain; 4. the service by the Respondent of the Notice of Intention to Apply for Probate in what were described as "contentious circumstances", the Respondent having already made his application for Probate, and, in particular, whether that late service was made with the intention of defeating a Caveat; URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 17 5. the inclusion by the Respondent in the Affidavit of Assets and Liabilities of property which did not form part of the estate of the deceased and his failure to include in the Affidavit of Assets and Liabilities assets which he know or ought to have known, formed part of the estate of the deceased. On 20 July 1994, the Respondent's solicitors forwarded to the Manager of the Professional Standards Department what was described as the Respondent's "detailed response to the questions raised in (the) letter of 27 May" together with a number of documents which clearly were relied upon by the Respondent to support his "response". In that response (AB 194-199) the Respondent, when dealing with the complaint (2) that he had continued to use the Power of Attorney after the deceased's death and the further complaint (4) that he had failed to notify the St. George Building Society of the deceased's death, wrote (at AB 196): "T did not use the Power of Attorney after my mother's death I had no need to. I was and continued to be well known to the staff of the St. George Bank (formerly St George Building Society) at its Hurstville Branch I did not sign withdrawals as my mother's attorney. I signed my own name. The staff at the Bank accepted and acted upon them. I did so in what I then considered to have been in the best interests of the estate and the beneficiaries under the win and, later (at AB 197): "T refer to my response to para2. I did not use the Power of Attorney in any way. I presented withdrawals signed by me. The cost to the estate had I not done so, and in the light of (Mrs Brain's) subsequent conduct would have been extensive. The value of the property 62 Bruce Street had increased from what I consider to have been little more than land value when vacant possession was given, to an estimated value of $210,000.00 for the purpose of the joint probate application. Furthermore, when Mrs Brain) was given the opportunity to choose one of the parcels of real estate owned by (the deceased) as part of her share in the distribution of the estate, she chose the property at 62 Bruce Street. Such notification was given. I cannot recall when it was given nor can I locate at this time any document that would assist me. I do however note that on 22 July 1991 I wrote to St George advising them of the estate Tax File Number." It is, perhaps, appropriate to remark that it is a measure of the Respondent's lack of understanding of the inappropriateness of his conduct both before, and after, the death of the deceased that he concluded his "detailed response" as follows (AB 199): "Tn respect of my management of my late Mother's affairs during the ten years following my late Father's death, I neither sought nor received anything but my mother 's gratitude which she often expressed to me whilst she remained capable of so doing. However, I sincerely regret that I did not comply with one request that she made of me, and that was to remove (Mrs Brain) from her will entirely and to give the share which she would otherwise have taken to her children Felicitee and Ashley. At that time I considered that for me to do so would have been improper and if Mum wanted to do that she should see an independent solicitor. How wrong I was in failing to observe her wishes." Over the course of the months between July and December 1994 further correspondence passed between the Appellant and the Respondent's solicitors, in the course of which the Appellant sought further information, and sought to be provided with further documents, in relation to the various matters which had earlier been raised with the Respondent's solicitors. 18 UNREPORTED JUDGMENTS In a letter (AB 232-233) dated 28 October 1994, the Appellant wrote (inter alia) as follows: " 1. By letter dated 22 July 1994 you were notified of the Committee's resolution of 21 July 1994 which required in part documentation authorising your client to operate his late mother 's accounts. You have provided copies of three documents headed 'Change of Account Ownership' signed by your client pursuant to his late mother's Power of Attorney in relation to accounts 019 158 326, 030 961 988 and 010 021 180. However you have not indicated your client 's authority to access accounts number 024 017 173 or 134 247 068. If your client relied on the Power of Attorney to access these accounts please advise accordingly, y not please advise the basis of his authority. If the St George Bank was willing to allow your client to use the accounts without a formal grant of probate please advise accordingly. 2. Please advise why your client opened account number 025 186 059 after Mrs Walsh 's death as 'in trust for M M Walsh' rather than 'in trust for the Estate of the late M M Walsh' 3. The Committee's resolution of 21 July 1994 also required documentation relating to transactions of these accounts after Mrs Walsh's death It appears that with the exception of account No 830 083 511, withdrawals were made after Mrs Walsh's death and before probate was granted from all the other accounts referred to in your letter of 25 August 1994. I note you have provided two withdrawal slips relating to account No 134 247 068. These withdrawal slips appear to have been signed using Mr Walsh's own name. Please confirm whether or not the withdrawals from the other accounts were effected in the same manner. If not, please provide details. 5. Please advise the date and manner in which your client notified the Bank of his mother's death. If your client is unable to advise the exact date could he please advise using his best recollection. Your client initially advised in his response to the Society dated 20 July 1994 (para2 p3): 'I did not use the power of attorney after my mother's death I had no need to.' Your client's subsequent admission that he signed the Change of Ownership Forms using his mother's power of attorney appears to raise issues of conduct which require further investigation. 'You win appreciate the Committee requires an the details relating to access to and withdrawals from Mrs Walsh Senior's accounts after he death to determine the issues of conduct. (Information later provided by the Respondent's solicitors (AB 246-252) and by the St. George Bank Ltd (AB 253-254) would indicate that account No 024 017 173 was opened on 15 June 1988 in the name of "R J Walsh & Associates ITF M M Walsh", that account No 134 247 068 was opened on 5 January 1983 in the name of the deceased, that account No 025 186 059 was opened on 3 November 1988 in the name of "R J Walsh ITF M M Walsh" and that account No 830 083 511 was opened on | March 1984 in the name of the deceased with the Respondent being appointed an alternative signatory. Despite the fact that he URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 19 had earlier been appointed an alternative signatory to account No 830 083 511, the Respondent appears (AB 225), on 17 July 1986, to have given to St George Building Society notice of the grant to him by the deceased of the Power of Attorney which had been executed in July 1986.) On | November 1994, the Respondent's solicitors forwarded to the Appellant a Statutory Declaration made by the Respondent on 1 November 1994 (AB 234-237) in answer to the requests for information contained in the letter from the Appellant to the Respondent's solicitors of 28 October 1994. That Statutory Declaration was, in part, as follows: "1.1 As to account No 024 017 173 with the St George Bank Ltd ("the Bank") this account was opened by me on behalf of my mother prior to her death The Power of Attorney granted to me was not required to operate on this account as I could sign withdrawal forms in my own right and no question of operating on the account with or without a Grant of Probate arose. 1.2 As to account No 134 247 068 with the Bank the Power of Attorney was not relied upon. I was well known to the then Manager, Supervisor and staff of the Hurstville Branch of the Bank and the withdrawal forms signed by me were sufficient and again no question of operating on the account with or without a Grant of Probate arose. 1.3 The other beneficiaries were made aware by me that correctly all of my late mother's monies were not available to meet the estate's debts and obligations until after a Grant of Probate had been obtained. They each concurred in my taking steps to ensure that such funds were used as and when necessary to meet the debts and obligations of my late mother. All of my actions had been designed to benefit the estate and the beneficiaries and ensure that all my late mother's debts and obligations were met promptly. As a result of orders made in the Supreme Court of New South Wales in July 1993 the estate has been the subject of an audit by a Chartered Accountant appointed with my agreement by the solicitors acting for (Mrs Brain) and such audit has confirmed that there has been no improper dealings with any of the estate's assets. 2. Had this account been opened 'in trust for the estate of the late M M Walsh' it is more than likely that operations on the account would not have been permitted until after production of a Grant of Probate. This would have meant that these funds were not available to assist in meeting the debts and obligations of my late mother's estate. 3. To the best of my recollection and belief an withdrawals were signed by me in my own right and not pursuant to the Power of Attorney granted to me. 5. I confirm the information given in response to the letter from the Law Society of New South Wales to my solicitors dated 27 May 1994 which response was as follows 'Such notification was given. I can't recall when it was given nor can I locate at this time any document that would assist me. I do however note that on 27 July 1991 I wrote to St George advising them of the estate tax file number.'" The material which is before the Court does not reveal what occurred in the period between December 1994 and 7 March 1996 on which day the Professional Conduct Committee of the Appellant, exercising power delegated to it by the Council of the Appellant (AB 150-151): "RESOLVED to initiate a complaint against (the Respondent) pursuant to s135(1) of the Legal Profession Act 1987. 20 UNREPORTED JUDGMENTS FURTHER RESOLVED that the Committee is satisfied that there is a reasonable likelihood (the Respondent) will be found guilty by the Tribunal of professional misconduct and unsatisfactory professional conduct and _ that proceedings be instituted in the Tribunal pursuant to s155(2) of the Legal Profession Act 1987. Professional Misconduct (The Respondent) continued to use a Power of Attorney after the donor 's death 2. (The Respondent) failed too (sic) notify, in a timely fashion, the St George Building Society, at which his late mother held an account, of her death 3. (The Respondent) misled (the Appellant) by initially advising in his response dated 20 July 1994 that: 'I did not use the Power of Attorney after my mother's death I had no need to,' when he knew or ought to have known that his was not an accurate statement. Unsatisfactory Professional Conduct 1. (The Respondent) applied for a Grant of Probate in his own name, to the exclusion of his sister who had been named as co-executrix in his late mother's Will. (The Respondent), then acting as solicitor for the Estate belatedly served Notice of Intention to Apply for Probate in Contentious Circumstances on the fellow executrix named in the Will on 20 December 1988 having already made the application for Probate on 4 November 1988. (The Respondent) failed to properly characterise estate assets in the Affidavit of Assets and Liabilities filed with the Probate Application." The formal Information (AB 1-4) which was filed with the Tribunal on 11 March 1996, omitting formal parts, was as follows: "The Council of the Law Society of New South Wales ('the Council') informs the Legal Services Tribunal of a complaint against Ronald John Walsh ('the Solicitor'). The grounds on which the complaint is made are as follows:- 1. The Solicitor was guilty of professional misconduct or in the alternative unsatisfactory professional conduct in respect of his use of the General Power of Attorney in favour of himself and Dianne Marilyn Farlow dated 11 July 1986. 2. The Solicitor was guilty of professional misconduct or in the alternative unsatisfactory professional conduct in his delay in notifying the St George Building Society Ltd of the death of the late Mavis Mary McArthur Walsh. 3. The Solicitor was guilty of professional misconduct or in the alternative unsatisfactory professional conduct in erroneously advising the Society that subsequent to the death of the late Mavis Mary McArthur Walsh he had not used the General Power of Attorney dated 11 July 1986. 4. The Solicitor was guilty of unsatisfactory professional conduct in his failure to serve a notice of intended proceedings upon Beverley Dawn Phillips prior to his application for probate of the Estate of the late Mavis Mary McArthur Walsh. 5. The Solicitor was guilty of unsatisfactory professional conduct in the manner of his drawing and/or verification of the Affidavit of Assets & Liabilities sworn 4 November 1988 in the Estate of the late Mavis Mary McArthur Walsh. The Council requests the making of the following Orders:- 1. That the Solicitor pay a fine. 2. That the Solicitor pay the costs of the Council. 3. Such further or other Order as the Tribunal may determine." URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 21 Particulars of the several grounds of complaint contained in the Information being as follows: "FIRST COMPLAINT: a) The late Mavis Mary McArthur Walsh ('the deceased ') died on 2 July 1988. b) At the date of her death the Solicitor held an appointment as the deceased's attorney pursuant to General Power of Attorney dated 11 July 1986. c) On or about 2 July 1988 the Solicitor purported to exercise the power so conferred on him to effect a transfer of Account No 019158326 with St George Building Society Ltd from the deceased to himself. d) At the time the Solicitor so acted he knew of the deceased's death SECOND COMPLAINT: a) The late Mavis Mary McArthur Walsh ('the deceased') died on 2 July 1988. b) As at the date of her death the deceased mentioned a number of accounts with the St. George Building Society Ltd. c) The Solicitor was one of the two Executors of the last win of the deceased and following her death made application for probate of her Estate. d) Subsequent to the deceased 's death the Solicitor caused monies to be paid from one of the accounts maintained by the deceased e) The Solicitor failed and/or neglected to inform the St George Building Society Ltd of the death of the deceased until 22 July 1991. THIRD COMPLAINT: a) By letter dated 27 May 1994 the Council advised the solicitors then acting for the Solicitor, inter alia, that it had re-opened its investigation of matters originally the subject of the Complaint of Mrs Beverley Phillips and requested he address the proposition 'The Solicitor continued to use this Power of Attorney (of 11 July 1986) after his mother's death.' b) The Solicitor replied through his solicitors by letter dated 20 July 1994 that he did not use the Power of Attorney after the death of his mother. c) The reply was erroneous and was known to be so or was made without a due or proper review of facts peculiarly within the Solicitor's ability to ascertain. d) The reply had the tendency to mislead the Committee. FOURTH COMPLAINT: a) The last win of the late Mavis Mary McArthur Walsh ('the deceased') appointed the Solicitor and Beverley Dawn Goldthorp (later Phillips) as executors and Trustees of her Estate. b) On or about 4 November 1988 the Solicitor made application for probate of the Estate of the deceased on his own account with leave reserved to Beverley Dawn Goldthorp. c) The Solicitor failed and/or neglected to serve on Beverley Dawn Goldthorp a notice of intended proceedings not less than fourteen (14) days prior to his instituting proceedings for a grant. d) The necessity to serve such notice was one which ought be known to a reasonably competent and diligent solicitor or alternatively reasonably discoverable by such solicitor in the making of an application of the kind made. FIFTH COMPLAINT: a) On or about 4 November 1988 the Solicitor made application for probate of the Estate of the late Mavis Mary McArthur Walsh. 22 UNREPORTED JUDGMENTS b) The Solicitor acted on his own behalf in such application. c) In the course of such application the Solicitor drew and verified on 4 November 1988 an Affidavit of Assets and Liabilities ('the affidavit'). d) The affidavit i) failed to disclose properties at 189 Stuart Street, Blakehurst and 147 Careys Road, Hillville; ii) erroneously characterised the interest of the deceased in the property 8 Shoalhaven Road, Sylvania Waters as an equitable interest only; (iii) failed to accurately disclose the existence of money advances to and from or on behalf of the Estate made by and between the beneficiaries. e) The drawing of the affidavit in this form for use in the application fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent legal practitioner practising as a solicitor." The Reply (AB 5-7) which was filed by the Respondent to the Information, omitting formal parts, was as follows: "FIRST COMPLAINT 1.The solicitor admits the matters set out in particulars (a), (b), (c) and (d) of the first complaint. 2. The solicitor says that: a. He was not acting as a solicitor and that his conduct could not constitute unsatisfactory professional conduct or statutory professional misconduct; b. His conduct was not professional misconduct in the general low sense of that expression. SECOND COMPLAINT 3. The solicitor admits the matters set out in para(a), para(b), para(c), para(d) and para(e) of the particulars of the second complaint. 4. The solicitor repeats the matters set out in para2 above. THIRD COMPLAINT 5. The solicitor admits the matters set out in para(a) and para(b) of the particulars of the third complaint. 6. The solicitor admits that his reply was erroneous but otherwise denies para(c). 7. As to para(d), the solicitor says that, in all the circumstances, the reply had no tendency to mislead the Committee. 8. The solicitor further says that he had no intention to mislead the Society. FOURTH COMPLAINT 9. The solicitor admits para(a), para(b) and para(c) of the particulars of the fourth complaint. 10. The solicitor denies para(d) of those particulars. 11. The solicitor repeats the masters set out in para2 above. FIFTH COMPLAINT 12. The solicitor admits (a) of the particulars of the fifth complaint. 13. To the extent that para(b) of the particulars suggests that the solicitor was acting as a solicitor, the paragraph is not admitted. The solicitor says that in making application for probate he was doing so in his capacity as executor. 14. The solicitor admits para(c) of the particulars. URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 23 15. As to para(d) of the particulars, the solicitor relies upon the matters set out in his statutory declaration made on 24" April, 1996. 16. The solicitor does not admit para(e) of the particulars. 17. The solicitor repeats the matters set out in para2 above." It is convenient to record, here, that, insofar as is relevant, s126, s127, s171C and s171E of the Legal Profession Act 1987, all of which sections form part of Pt10 - Complaints and Discipline of the Legal Profession Act 1987 provide as follows: "Definitions 126: In this Part: 'professional misconduct' and 'unsatisfactory professional conduct' are defined in s127; Professional misconduct and unsatisfactory professional conduct 127.(1) For the purposes of this Part, 'professional misconduct' includes: (a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence; or (b) conduct (whether consisting of an act or omission) incurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners; (2) For the purposes of this Part: 'unsatisfactory professional conduct' includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. Determinations of the Tribunal 171C.(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following: (a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct; (b) order that the legal practitioner's practising certificate be cancelled; (c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order; (d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct; (e) publicly reprimand the legal practitioner or, if there are special circumstances, privately reprimand the legal practitioner; 15° 24 UNREPORTED JUDGMENTS (f) order that the legal practitioner undertake and complete a course of further legal education specified in the order; (g)in the case of a solicitor, make any one or more of the orders referred to in subs(2); (h) if applicable, make a compensation order; (i) make ancillary orders. Award of costs by Tribunal 171E. (1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct (or any associated solicitor corporation) to pay such amounts byway of costs (including the costs of the Commissioner, the appropriate Council and the complainant) as it determines. The Information came on for hearing before the Tribunal (Messrs A Martin (Chairman), W Macquarie and J O'Neill) on 4 July 1996 and continued on 4 July 1996, following which the Tribunal reserved its decision. The only oral evidence given before the Tribunal was that of the Respondent who appears to have been cross examined for half a day or thereabouts. Although it is not necessary to deal in any great detail with the oral evidence given by the Respondent on the hearing before the Tribunal it seems appropriate - since it not only provides a revealing insight into the Respondent's attitudes, but also because it provides a telling example of the equivocation to which the Respondent was prepared to resort when pressed too closely about the propriety of his conduct - to set out the following passage (AB 22-24) in the course of the Respondent's cross-examination: "Q. Would you just look at this document, please? (Witness shown document) A. Yes, that is the original of the power of attorney that was given to me. Q. Assisted by that, that power was taken on 11 July 1986? A. Yes, that is the date it bears. Q. You had been in practice for a great many years by 1986, had you not? A. From 1962 when I was admitted. Q. You had been in practice for a number of years. A. Yes, 'a great many ' is a matter of opinion. Q. Over that period of time had you had occasion to draw up or otherwise prepare powers of attorney? A. Yes. Q. You were well aware that, prior to the amendments to the Conveyancing Act in 1983, a power of attorney terminated when the donor lost capacity? A. Yes. Q. You were also well aware at the date of your mother's death that the power of attorney was terminated effectively as a consequence of death? A. Yes. Q. You were aware also, weren't you, that the Conveyancing Act provided that to knowingly use a power of attorney after it had terminated constituted a misdemeanour? URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 25 A. No. Frankly, no. Q. You were unaware of that provision? A. I was unaware of that provision. Q. The limit of your knowledge then was that death effectively terminated it? A. Yes. Q. But you were not aware of the terms and provisions of s162A which, if you accept it from me, is the provision which makes it a misdemeanour? A. No. I wasn't. Q. The three accounts that you used the power of attorney to transfer to your name could not have been transferred without either the use of the power of attorney or your having obtained a grant of probate, could they? A. Well, it depends on what you mean by using the power of attorney. The documents which I signed to transfer those accounts, I purported to act as my mother's attorney to change those accounts into my name. I didn't actually produce the power of attorney to the building society, as I think it then was. That is the only distinction I could draw. Q. But, of course, the power of attorney had been produced to the building society at an earlier time? A. yes. Q. So there was no necessity to produce the power of attorney gain to the society for the purpose of effecting the transfer, was there? A. Well, I was well-known, I think, to every person in the branch of St George at Hurstville at that time. I was and remain a panel solicitor of St. George and if presented a document they simply acted on it. Q. Can I take your attention, please, to one of the documents, which is at p83 of Mr Still's affidavit, and can I take your attention to that document which is a change of account ownership in respect of account number 019158326. Do you see that? A. Yes. Q. There is no question but that you were signing that as her duty appointed power of attorney? A: Yes. Q. The position is, isn't it, that without exercising your powers pursuant to the attorney or without a grant you would not have been able to have effected the change of account ownership? A. True. Q. Indeed that is the only reason you signed the documents as her attorney? A. Yes, that is true. Q. Because you were aware that, absent the production of a grant or power of attorney, the building society would not have permitted a change of ownership of the accounts which at that time stood in her name only? A. Yes, that is true. Q. It necessarily follows, doesn't it, that using the power of attorney meant that you were practising a deception on the building society? A. Yes, I would have to say that that is true. 26 UNREPORTED JUDGMENTS Q. Have you ever advised a client to practise a deception to effect a change of ownership of a bank or building society account? A. I would have to say yes, in certain circumstances, on the death of a client where they have needed money to meet liabilities straight away. Q. So you say that you have advised clients to use or to practise deception to effect changes in the ownership of bank or building society accounts? A. No, not to effect changes in ownership, just to draw funds on authorities they had before the bant was notified officially of the death. Q. It is a deception, isn't it? A. It is a deception, yes. Q. And it is certainly not something that you would say a solicitor ought to do, is it? A. No. Q. You said that you were a panel solicitor for St. George. Didyou hold that position as at the date that you executed these change of ownership documents? A. Yes. Q. Did that effectively mean that you were one of the several solicitors who were undertaking workfor the St George Building Society in 1988? A. Yes, that is right. Q. So the St George Building Society was a client of yours? A. Yes. Q. It necessarily follows, doem 't it, that you were practising a deception on your own client? A. Yes." Although it would seem that, in the course of the submissions which he advanced on behalf of the Appellant on the hearing before the Tribunal, counsel then appearing for the Appellant sought to persuade the Tribunal to the view that the Respondent's conduct in relation, in particular, to the matters set out in paral and para2 of the Information was conduct occurring in connection with the practice of law, it is clear (AB 54-55) that counsel sought also to persuade the Tribunal to the view that that conduct also constituted what might be called "general law professional misconduct" and as well "statutory professional misconduct" within the meaning of s127(1)(b) of the Legal Profession Act 1987. Lest there be any doubt that this was so, it should be noted that in the course of his submissions (AB 54) counsel referred to the note of the Judgment of Rich J in Kennedy v The Council of the Incorporated Law Institute of New South Wales!4, which note is in the following terms: "Rich J said that a charge of misconduct as relating to a solicitor need not fall within legal definition of wrong doing It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public The particular transaction the subject of the charge must be looked at as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse of propriety was not inconsistent with general 14. (1939) 13 ALJ 563 URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 27 professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction. The appellant's enterprise, said his Honour, was part of a campaign to win the case, a campaign in the course of which his Honour noticed, two other witnesses for the defence were talked ta The appellant was engaged in a course of aggressive interference with the ordinary course of calling evidence on behalf of the defendant whose case had already been entered upon. He clearly strove to interfere and influence a witness in what she would say and did so in an improper manner. In his Honour 's opinion, the appellant was interfering with the ordinary course of justice and in all the circumstances showed that his misconduct manifested a definite unfitness to be trusted to discharge the duties of a solicitor, particularly in relation to the court." Although, in the course of his submissions before the Tribunal, counsel for the Respondent submitted that the Respondent's conduct in the respects charged in the Information was not conduct occurring in connection with the practice of law and that, even if it were, that conduct did not constitute general law professional misconduct (AB 61), it is clear that counsel accepted that it was part of the Appellant's case that the Respondent's conduct in the relevant respect was conduct within the meaning of s127(1)(b) of the legal profession Act 1987. That this was so is made clear by the following passage in his submissions in which, following a reference to the decision of the Court of Appeal in Allinson v General Council of Medical Education and Registration!5, the following appears (AB 62): "Quite separately from that, there is the proposition that a solicitor can, otherwise than in the course of his practice, commit conduct which shows that he is unfit to practice (sic) so that, for example - and Ziems v The Prothonotary is the leading case on that question - where a solicitor in private life commits an act of dishonesty, assuming he steals money from a house or robs a bank, that would demonstrate unfitness to practise not because it is professional misconduct but because it shows he is not a person of good character and fit to be a solicitor. That is the definition which is picked up in s127B (sic) which includes as professional misconduct for the purpose of the section conduct occurring otherwise than in connection with the practice of law which would justify a finding that the practitioner is not of good fame and character. To the extent that the Society relies upon s127B (sic), I merely point out that it is no part of the Society's case - although these matters are matters for the Tribunal - that Mr Walsh is a person not of good character. In fact, in his submissions, my learned friend was fair enough to refer to Mr Walsh's unblemished character and, although this does not bind the Tribunal, the most the Society seeks by way of penalty is a fine. If that is the Society's position, it hardly lies in the mouth of the Society to say that s127B (sic) applies to any conduct because it is conduct which shows that he is a person not of good fame and character. CHAIRMAN: Coming back to s127B (sic), would it not be open to the Tribunal to find that the solicitor, by reason of his conduct in this matter, is not of good fame and character? MR WALES: It would be open in the sense that it is within your power to make such a finding. The facts of the matter have been the subject of exposition before the Tribunal and the way in which that conduct is characterised is a matter for the Tribunal. The Tribunal has to conclude on the facts whether there has been 15. [1894] 1 QB 750 28 UNREPORTED JUDGMENTS misconduct within or without the definition of s127 (sic). In my submission, you simply would not come to that conclusion. CHAIRMAN: It seems to be in the alternative, 'or is not a fit and proper person to remain on the roll'. MR WALES: Yes, they are expressed as alternatives, although one would not readily think of a case where a solicitor was caught on one limb and not on the other. When the Tribunal came to deal with the first ground of complaint in the Information, it concluded that, at the time of the conduct the subject of that ground of complaint, the Respondent was not acting as a solicitor in the pursuit of his profession and that his conduct did not amount to, or constitute, general law professional misconduct. For the same reason, the Tribunal held that the conduct in question did not amount to unsatisfactory professional misconduct. Having done so, the Tribunal proceeded to consider whether the Respondent's conduct, in the respect complained of, justified a finding by the Tribunal that the Respondent was not of good fame and character. In this respect the Tribunal said (AB 306-307): "Ptl0 of the Act deals with complaints and discipline and included in the general objects of the part is the object to ensure compliance by individual legal practitioners with the necessary standards of honesty, competence and diligence (s123(b)). S127 supports that objective by giving a statutory definition to 'professional misconduct' for conduct which otherwise would be personal misconduct. Such personal misconduct can arise from any activity in our society. But it will not be every misconduct that will justify a finding that the legal practitioner is not of 'good fame and character'. Such a finding will depend on the seriousness and nature of the misconduct. Acts of dishonesty involving unlawful transfers of property (in this case building society accounts) are serious and deserve condemnation. The Tribunal finds that the solicitor was guilty of personal misconduct in his deception in obtaining an unlawful transfer of a Building Society account from the name of his deceased mother into his own name. This misconduct (which was a misdemeanour) must be judged at the time it occurred and cannot be justified or excused on the ground that no misappropriation took place and there was no ultimate loss to any person. The Tribunal is of the opinion that the misconduct of the solicitor (which the Tribunal finds is established) justifies a finding that the solicitor is not of good fame and character and thus he is guilty of professional misconduct within the meaning of s127(1)(b). The Tribunal however does not find this misconduct justifies a finding that the solicitor is not a fit and proper person to remain on the roll of legal practitioners." Since the Appellant does not seek to appeal against the Tribunal's dismissal of the second ground of complaint, I pass over that ground for the moment. When it came to deal with the third ground of complaint, the Tribunal, first referred to the Respondent's oral evidence (AB 31): "At that stage it was the least of my concern. I say that simply because in 1989 my eldest son died. As a result of that, myself, my wife and the rest of the family went through a very traumatic period and we were still going through it in 1990 and even today to a lesser extent, but at that stage I wasn't thinking about things like this, I wasn't concerned with things like that." and later (AB 32): URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 29 "T didn't recall anything about changing the names of the accounts at that time and it was only when the documents which I obtained from the Building Society came in, that I realised that I had and I had made a mistake about that." (It should be noted, that the second extract from the Respondent's evidence is incomplete as in the answer it is preceded by: "No, I definitely did not. I knew I hadn't used the power of attorney on the withdrawal forms." an answer which, although technically correct, avoids the problem caused to the Respondent by his admitted use of the Power of Attorney when procuring the change of ownership of the relevant bank accounts.) Having referred to those two passages in the evidence, the Tribunal concluded in respect of this complaint (AB 309): "The Tribunal accepts the evidence of the Solicitor that, he did not know the statement (sic) in the letter of 20 July 1994 to the Law Society from his solicitor that he did not use the power of attorney after the death of his mother was erroneous or was known to him to be so. Furthermore as it was 6 years after the event when the enquiry was made and the reply given that it would be unreasonable to expect that the solicitor should have made any further review of the facts at that stage. The Tribunal dismisses this ground of complaint." One pauses here to observe, first, that Mrs Brain's complaint that the Respondent had used the Power of Attorney after the death of the deceased had been raised years before July 1994, being one of the issues in the proceedings brought by Mrs Brain against the Respondent in 1990 (see AB 135, 139), and being one of the matters of complaint contained in the letter of 27 November 1990 from Mrs Brain to the Appellant (see AB 154); that the letter of 27 May 1994 from the Appellant to the Respondent was not a mere "enquiry" but, so far as is relevant, required the Respondent to "address" the assertion that he had continued to use the Power of Attorney after the deceased's death; and that the "statement" which was in question was not one made by the Respondent's solicitors in the letter but was one made by him, on two occasions (see AB 196, 197), in a statement, apparently prepared by him for the purpose of dealing in detail with the matters raised by the Appellant in its letter to the Respondent's solicitors on 27 May 1994. When it came to deal with the fourth ground of complaint the Tribunal said (inter alia) (AB 311-312): "The Tribunal finds that the conduct complained of was carried on in connection with the practise (sic) of law. However the Tribunal finds that the conduct of the Solicitor was mere negligence and did not fall short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent legal practitioner. The Tribunal dismisses this ground of complaint." When it came to deal with the final ground of complaint in the Information, the Tribunal, after having set out part of the matter contained in Mrs Brain's Statutory Declaration of 7 March 1996 and part of what was contained in the Respondent's Statutory Declaration of 24 April 1996, said (AB 315-316): "The Tribunal is satisfied that the Statement of Assets and Liabilities annexed to the Affidavit of the Solicitor in November 1988 was incorrect in its description of the real estate assets and the debts. Any agreement that the solicitor had with 30 UNREPORTED JUDGMENTS his sisters regarding the distribution of the properties was subject to agreed valuations. It is clear from the evidence that no such agreement as to the valuations was ever made. " Then, after referring to some of the oral evidence given by the Respondent in the course of his cross-examination, the Tribunal continued (AB 317): "The Solicitor was clearly wrong in describing the real estate assets and the debts of the estate as he did in the Affidavit of November 1988. The acts of part performance that he refers to are not evidence of an agreement by his sisters to a $300,000.00 valuation for the Stuart Street, Blakehurst property. The Tribunal can only conclude that the motive of the Solicitor in describing the assets and debts as he did in this Affidavit was to ignore the interests of his sisters and in some way to establish an entitlement to the Stuart Street property for the purchase price of $300,000. For the conduct of the Solicitor to constitute unsatisfactory professional conduct as alleged by the Law Society, his conduct must have been carried on 'in connection with the practice of law'. The Solicitor denies that he was acting as a solicitor when he drew and verified the Affidavit and made the application to the Supreme Court for Probate. The Tribunal is comfortably satisfied the Solicitor in making the application for probate in November of 1988 did so 'in connection with the practice of law'. The application for Probate in November 1988 was filed in the Supreme Court by the firm 'R J Walsh & Associates' in which firm the Solicitor was a partner. The Solicitor conceded in cross-examination that the Affidavit of November 1988 was in the form of a document which the rules prescribed in situations where a Solicitor is acting for the moving party and that the document, in its very form, represented to the Court that his firm was acting on his behalf in the application. The Tribunal finds that this ground of complaint has been made out and that the solicitor was guilty of unsatisfactory professional conduct." Before turning to consider the nature of the protective order which ought to be made in the circumstances, the Tribunal recorded (inter alia) (AB 318): "The Solicitor has not by his Statutory Declarations or in giving evidence before the Tribunal expressed any regret or contrition for his conduct. His attitude has been that although his conduct may in some respects have been wrongful, what he did was not done as a Solicitor." In the event, the Tribunal held that the fines to which I have earlier (p2-p3 (supra)) referred ought to be imposed on the Respondent in respect of the first and fifth grounds of complaint and that the Respondent pay one-half of the Appellant's costs of the proceedings before the Tribunal. Given that the Tribunal, although holding that the Respondent was not a person "of good fame and character', nonetheless held that the consequential finding of professional misconduct did not justify a finding that the Respondent was not a fit and proper person to remain on the roll of legal practitioners, it is not entirely surprising that the Appellant saw fit to lodge an appeal from the Determination and Orders of the Tribunal. What is, however, surprising is the particular approach taken by the Appellant to the Determination of the Tribunal and the Orders proposed by it in its Notice of Appeal. The grounds of appeal which were taken by the Appellant in its Notice of Appeal were as follows: "1. The Tribunal erred in finding that the conduct alleged in the first ground of complaint did not occur 'in connection with the practice of law' within the meaning of s127(1)(b) of the Legal Profession Act, 1987. URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 31 2. The Tribunal erred in respect of the first ground of complaint in holding that a legal practitioner who has been found guilty of professional misconduct and is not a person 'of good fame and character' within the meaning of s127(1)(b) of the Legal Profession Act, 1987 (which the Tribunal had found) is a fit and proper person to remain on the Roll of Legal Practitioners. 3. The Tribunal erred in respect of the third ground of complaint:- (a) in holding that it would be unable to expect that the Respondent should have made any review of the facts prior to erroneously advising the Appellant that he had not used the Power of Attorney after the death of his mother, in the letter of 20 July 1994 to the Appellant; and (b) in failing to hold that the respondent was guilty of unsatisfactory professional conduct and professional misconduct in failing to make proper inquiries as to the facts reasonably available to him prior to responding to the Appellant. 4. The Tribunal erred in respect of the fourth ground of complaint in that:- (a) having found that the conduct of the Respondent fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner, it failed to uphold the complaint; or (b) it erred in failing to hold that the conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner." the Orders sought on the appeal being (inter alia) as follows: - "1. In respect of the first ground of complaint: (a) A declaration that the conduct alleged in this ground of complaint did occur 'in connection with the practice of law' within the meaning of s127(1)(b) of the Legal Profession Act, 1987. (b) No variation of the penalty imposed in respect of this ground of complaint is sought. OR (c) Alternatively, if this Court finds that the conduct alleged in the first ground of complaint did not occur 'in connection with the practice of law' within the meaning of s127(1)(b) of the Legal Profession Act, 1987, an order that the solicitor's name be removed from the Roll of Legal Practitioners. 2. In respect of the third ground of complaint: (a) A finding that the solicitor is guilty of professional misconduct. (b) Imposition of such penalty as this Court thinks fit. 3. In respect of the fourth ground of complaint: (a) A finding that the solicitor is guilty of unsatisfactory professional conduct. (b) Imposition of such penalty as this Court thinks fit." The apparent answer to the paradoxical form of the Notice of Appeal would seem to be (see Transcript p4) that, although the Appellant did not frame the Information, nor conduct its case before the Tribunal upon the basis that the conduct of the Respondent which was complained of demonstrated that the Respondent was a person who was not of good fame and character or was a person who was not fit to remain upon the roll of legal practitioners, if the Tribunal's finding that the Respondent was not a person who was of good fame and character were to stand, then the necessary consequence was that the name of the Respondent should have been removed from the roll of legal practitioners. This was an approach not unlike that adopted by the Appellant in Law Society of 32 UNREPORTED JUDGMENTS New South Wales v Bannister!¢ in which case the Appellant appealed against an Order of the Tribunal imposing a fine upon the relevant legal practitioner, the basis of the appeal being that the Tribunal had, in the circumstances, erred in finding that the relevant solicitor was fit to continue in practice, and this, despite the fact that the Appellant had not, on the hearing before the Tribunal urged that the name of the relevant legal practitioner be removed from the roll of legal practitioners. Nor was the Respondent satisfied with the Determination and Orders of the Tribunal, and he, and his turn, filed a Notice of Cross-Appeal in which the grounds of his Cross-Appeal were (AB 326-327) as follows: "1. The Tribunal, erred in finding that the cross appellant was not of good fame and character and, in respect of the first ground of complaint, committed professional misconduct within the meaning of s127(1)(b) of the Legal Profession Act 1987. 2. The Tribunal erred in finding that the cross appellant was 'clearly wrong' in describing the real estate assets and the debts of the estate as he did in his affidavit of November, 1988. 3. The Tribunal erred in concluding that the cross appellant's motive was to ignore the interests of his sisters in order to establish an entitlement to the Stuart Street property for the purchase price of $300,000.00. 4. The Tribunal erred in holding that, in drawing and verifying his affidavit of November 1988, and in making an application for probate, the cross appellant was acting 'in connection with the practice of hew ' within the meaning of s127(2). 5. The Tribunal erred in concluding that, in respect of the fifth ground of complaint, the cross appellant was guilty of unsatisfactory professional conduct. 6. The Tribunal erred in determining that the appropriate orders against the cross appellant were that he should pay fines of $8,000.00 and $2,000.00 in respect of the first and fifth grounds of complaint respectively." the Order sought by him being that the "complaint... be dismissed in its entirety." When the appeal was called on for hearing, Mr J Basten QC appeared for the Appellant while Mr I M Wales appeared for the Respondent. As I recorded earlier in these reasons (see p4 (above)), such difficulties as arise in the resolution of the questions calling for determination on this appeal and cross-appeal are the result of the manner in which the Appellant conducted its investigations before formulating its complaints; the manner in which the Appellant formulated its complaints, the subject of the Information; the manner in which the Appellant conducted the hearing of the Information before the Tribunal; and the somewhat ambivalent stance taken by the Appellant on the hearing of this appeal. It seems to me that the first question to be determined is, what is the approach to be taken by this Court on the appeal and, in particular, whether the Tribunal was, and whether this Court is, restricted in its approach by the manner in which the complaints the subject of the Information were formulated and/or the manner in which the Appellant conducted the hearing of the Information before the Tribunal. 16. (1993) 4 LPDR 24 URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 33 So far as the first matter is concerned, it is to be noted that the transcript record of the proceedings before the Tribunal records, at the outset of the hearing, the following interchange between the Chairman and counsel for the Respondent (AB 9): "CHAIRMAN: In the information the Council has requested that the solicitor pay a fine. It would be unfair to the solicitor for this matter t proceed on the basis that the Tribunal was restricted to that order, if it decided to make an order. I am sure you would appreciate that, Mr Wales, and I am sure you would have advised your client accordingly. MR WALES: Yes" Further, the extracts from the submissions of counsel which I have earlier set out (see p45-p48 (above)), to which one might add the following (AB 69-70); "WALES... If the Tribunal accepts that submission then that does away with my submission of general know misconduct of the Allinson kind because it was not done in pursuit of the profession. It cannot be unsatisfactory professional conduct because it was not done in the course of his practice, or whatever the words in s127 are exactly. It is a matter for the Tribunal whether he is caught by s127B (sic) and found to be a person not fit to practise. That has simply, can I be repetitive and say, never been the Society's case. CHAIRMAN: But that is in the alternative. You have conceded that it could be that he is not of good fame and character. MR WALES: What I have said is that it is within your jurisdiction to make such a finding, but what I have submitted is that, on the facts, you will not make such a finding because, although one does not condone a deception and one cannot say of a deception that it was harmless because no one lost as a result of it, in looking a the question of fitness to practise, one has to say what was the deception? What was the purpose of the deception? Was it, in truth, the kind of dishonesty which marks a man unfit to practise or not?" make it, in my view, dear that the hearing before the Tribunal proceeded upon the basis, and that counsel for the Respondent accepted, that, at least as a matter of law - although it was submitted that no foundation in fact for so doing had been established - it was open to the Tribunal to find that the Respondent was not a person of good fame and character or that the Respondent was not fit to remain on the roll of legal practitioners, and, in that event, to make an appropriate protective order. Although I was, at first, concerned that, if this Court were to depart from the manner in which the complaints contained in the Information had been formulated, and the manner in which the Appellant conducted its case before the Tribunal, the Respondent might be heard justifiably to complain that he had thereby been subject to procedural unfairness, upon reflection, it seems to me that, given the basis upon which the matter proceeded before the Tribunal, and given the nature of an appeal to this Court from the Determination and Orders of the Tribunal, that would not be so. In this regard, it is to be noted that s171F of the Legal Profession Act provides: "(4) An appeal is to be way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing, may be given." 34 UNREPORTED JUDGMENTS That the approach which I have just indicated is one appropriate for this Court to adopt is, in my view, established by the decision of this Court in Law Society of New South Wales v Bannister!7 to which I have earlier referred, an appeal which, as was the case with this appeal, proceeded without the tender of any further evidence as to the matters the subject of the complaint beyond that which had been tendered on the hearing of the Tribunal. In the course of his Judgment, in which Judgment Gleeson CJ and Handley JA concurred, Sheller JA said (inter alia): "APPEAL In its grounds of appeal filed on 13 November 1990 the Law Society claimed, amongst other things, that the Tribunal had erred in finding that the Solicitor was fit to continue to practise as a Solicitor of the Supreme Court of New South Wales and sought an order that his name be removed from the roll of solicitors of the Court. This approach is different from that taken by counsel for the Law Society at the hearing before the Tribunal and I shall return to say something about this. NATURE OF THE APPEAL S164(4) of the Act provides that the appeal shall be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original hearing, may be given. Argument during the hearing of the appeal was directed to the orders made by the Tribunal. In coming to its conclusion and as stated in the passage which I have quoted, the Tribunal took account of the observed behaviour of the Solicitor in the witness box. We have not had that advantage. Indeed neither side challenged the Tribunal's findings of fact. Thus the appeal proceeded upon the basis that, accepting these findings, the orders the Tribunal made were inappropriate. The Solicitor's name should have been removed from the roll. Because the appeal is a new hearing we are entitled to form our own view of the matter and to prefer it to that of the Tribunal, compare Re Hodgekiss (1962) SR (NSWJ 340 at 343. We are not restricted to intervening only where there is a demonstrated error or where the order is shown to be manifestly insupportable. We must of course take account of the expertise of the two solicitor members of the Tribunal and the fact that the third member is a lay member representative of a wider public opinion. We must also take account of the fact that the Tribunal saw the solicitor in the witness box. No other witness gave oral evidence. THE PROPER APPROACH ... the supervisory Jurisdiction of the Court and of statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the Charter of Justice of persons admitted to practise as solicitors befit and proper persons or, in the language of s16 of the Legal Profession Act 1987, of good fame and character is maintained. It follows that if a solicitor is shown not to be a fit and proper person he or she should be removed from the role The order for removal is not punitive but protective. 17. supra URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 35 I have no doubt whatever that the conduct I have summarised showed the solicitor to be unfit to practice. I find it difficult to see how the Tribunal could have come to any other conclusion. In their reasons the Tribunal said, and I agree: 'There has been no satisfactory explanation whatsoever for the conduct complained of and there is not one redeeming feature in its favour.' The solicitor 's conduct was driven not by need or hardship but by greed. WHAT COURSE THE COURT SHOULD TAKE? In my opinion the Court should now make the order that the Tribunal should have made. Two particular matters have concerned me. In the first place more than six years have now passed since the misappropriation of the money, four years since it was returned and nearly three years since the determination of the Tribunal During that period the solicitor has continued in practice. The second is the attitude of the Law Society. On more than one occasion during submissions to the Tribunal its counsel indicated the Law Society left it to the Tribunal to decide whether the Solicitor was unfit and whether or not his name should be removed from the roll. At no stage did counsel urge or even suggest that on the evidence the Tribunal was bound to order that the Solicitor's name be removed from the roll. Accordingly it seems surprising that the Low Society should now argue that the Tribunal erred in adopting a choice that the Law Society left open to it at the hearing The explanation we were given for this was 'a change of policy'. In ordinary criminal or civil proceedings this change of attitude would have particular significance in determining what course we should now follow. However since, in my opinion, protection of the public in the manner I have described required that the Solicitor's name be removed from the roll I accept that whatever attitude was taken by the Law Society at the hearing before the Tribunal, it acted correctly and prosecuting this appeal The Law Society's changed attitude should however have been reflected in an application at least for expedition and possible for some sort of interim order. It is no light matter that the professional body should allow somebody whom it regards as unfit to practise to continue to practise while an appeal takes it normal course unexpedited." Such being the approach which I consider appropriate to be adopted to the questions arising for determination on this appeal and the cross-appeal, I turn, now, to consider whether the Respondent's conduct as revealed by the materials which are before the Court for its consideration demonstrates that the Respondent is not a person of good fame and character or is a person who is not fit to remain upon the roll of legal practitioners. Although, in the observations which I am about to make I will, of necessity, concentrate on the Respondent's conduct, it should be observed that the conduct with which I am concerned to deal does not cast a favourable light on either Mrs Brain or Mrs Farlow - they, however, have - while the Respondent does not have - the advantage of being able to say that, not being legally qualified, they could hardly appreciate the full legal consequences of their conduct. The manner of the formulation of the complaints against the Respondent and the manner of the conduct of the Appellant's case before the Tribunal have, as it seems to me, tended to obscure the facts, first, that the ultimate question for the 36 UNREPORTED JUDGMENTS Tribunal was, and the ultimate question for this Court is, to determine whether the conduct of the Respondent renders him a person not of good fame and character or a person who is unfit to remain upon the roll of legal practitioners; and, second, that, in determining that question, it was open to the Tribunal, as it is open to this Court, to have regard to the whole of the evidence as to the Respondent's conduct revealed by the evidence, and not merely to that past of the evidence which might be directly related to the complaints as formulated and as particularised. Once those facts are accepted, then the matters which concerned me at the commencement, and during the course, of the hearing of this appeal and cross-appeal tend to disappear. I say this since, although some of the matters to which I will shortly refer are not the subject of the complaints as formulated or particularised, they are matters which have been put forward by the Respondent as justifying his conduct in relation to the matters the subject of the complaints as formulated and particularised, and have a considerable bearing upon the ultimate question which the Court is called upon to determine - a particular example of this is the agreement said to have been made between the Respondent and his sisters at, or shortly after, the time of the deceased's admission to the nursing home as to the manner in which the deceased's properties were to be dealt with both prior to and after her death (see p9-p11 (above). This agreement has been relied upon by the Respondent as justifying both his dealings with the St George Building Society accounts and his conduct in relation to the application for Probate which matters are the subject of the complaints as formulated and particularised. A consideration of the whole of the material which is before the Court in my view demonstrates the following: 1. although, at the time, a solicitor who had been in practice for the better part of 25 years, and one who had served as a member of the professional bodies to which I have earlier referred, the Respondent either had not the slightest comprehension of the fiduciary duties to which, as the grantee of the deceased's Power of Attorney, he was subject, or, if he were aware of, and comprehended, those duties, had not the slightest compunction in disregarding those duties and in acting in the deceased's affairs to his own advantage; 2. even if - as the Tribunal appears as if it might have been disposed to do - one is to accept the Respondent's assertion that he was unaware, at the time, that s162A of the Conveyancing Act, 1919 provided that knowingly to use a Power of Attorney after it had lapsed constituted a misdemeanour, it is abundantly clear that, in July 1988, the Respondent was only too aware: (a) that the Power of Attorney lapsed upon the deceased's death; (b) that, in the absence of any grant of Probate or limited Letters of Administration, he had no title to deal with any of the deceased's assets; and (c) that, if he were to deal as he later did deal with the deceased's accounts with the St. George Building Society, he would be acting in a manna which was at least unlawful if not illegal. 3. it is equally clear that, in July 1988, the Respondent was only too well aware and appreciated the fact, that, if, prior to a grant of Probate or Letters of Administration, he were to inform St. George Building Society of the death of the deceased, he would be unable to deal with any of the deceased's accounts with the Society; URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Powell JA) 37 4. the real burden of the second complaint was, not that the Respondent was under some under some general duty - which he failed to observe - to inform the St George Building Society of the deceased's death, but that his failure to inform the Society enabled him both to practise a deception upon the Society and also to deal with the deceased's accounts with the Society; 5. notwithstanding the matters to which I have earlier referred, and notwithstanding that he accepted that so to do was not conduct in which a solicitor should engage, the Respondent admitted that, in the past, he had advised clients to practise similar deceptions in order to obtain a change of ownership to an account with a Bank or Building Society; 6. just as the agreement which is said to have led to the carrying out of maintenance and repairs to the deceased's properties (see p9-p10 (above)) indicated that the Respondent and his sisters were prepared so to act as to obtain an improper advantage for themselves, so also the various explanations which the Respondent gave for drafting the various Affidavits of Assets and Liabilities in the form which they from time to time took (see p17-p20 (above)) would indicate that the Respondent was not averse to ignoring what he understood to be the true legal position if, by so doing, he could obtain an improper revenue advantage; 7. even if - which, in this respect, the Tribunal was not disposed to do - one were to accept the various assertions made by the Respondent as to his understanding of the legal effect of the agreement said to have been made between himself and his sisters prior to the death of the deceased concerning the properties forming part of the estate of the deceased, those explanations, as I have previously (see p18 (above)) observed, would indicate that the Respondent's knowledge of, and attitude to (inter alia) the law of contract, the law of vendor and purchaser and the requirements of the revenue laws was rather less than it should have been; 8. the real bite in the fourth complaint was, in all the circumstances, not so much that the Respondent's failure to serve on Mrs Brain a Notice of Intended Application reflected an inadequate knowledge of the rules of Court, or a negligent performance of the duties of a solicitor making an application for a grant of Probate with leave reserved, but that, because of the disputes that existed between himself and Mrs Brain, the Respondent was prepared to ignore such rights as Mrs Brain had as an Executrix and to proceed to obtain a grant of Probate in his name alone (see, for example, Transcript p15-p16) conduct which was, at the least, devious, and conduct in which a solicitor should not indulge; although, at the time of the hearing of the appeal, I was inclined to think that the Respondent's assertion, in his statement of 20 July 1994, that he did not use the Power of Attorney after the death of the deceased might have been due to faulty recollection due to the passage of time, upon a more detailed consideration of the material which is before the Court - in particular that part of the material which demonstrates that, from a very early time, Mrs Brian was asserting that the Respondent had in fact utilised the Power of Attorney following the death of the deceased - and the equivocations in which, even on the hearing before the Tribunal, the Respondent was prepared to indulge when pressed on this subject, it seems to me that the Respondent's assertion ought to be treated as having been, if not made with knowledge of its falsity, nonetheless as having been made recklessly, not caring whether it be true or not; 38 UNREPORTED JUDGMENTS 10. further, it is to be noted that the conduct to which I have referred above represents not an isolated incident but a course of conduct indulged in by the Respondent over an extended period and one in which the motivating factor appears to have been the pursuit of the Respondent's personal interests. 11. finally, as the Tribunal itself noted (see p52 (above)), the Respondent has not expressed - for he appears not to recognise any need to do so - any regret or contrition for the conduct with which he stood charged. In all the circumstances, it seems to me that the Respondent's conduct marks him out as one who, as the Tribunal found, was not of good fame and character and as one who - despite the observations of the Tribunal on the question - is not fit to remain upon the roll of practitioners. Although I accept that the phrases "not of good fame and character" and "not... fit... to remain on the roll of legal practitioners" are not synonymous - for a person who is of good fame and character may be so lacking in competence as not to be a fit and proper person to remain on the roll of legal practitioners (see Wentworth v NSW Bar Association!8; Wentworth v NSW Bar Association!®) - it seems to me that, if one is found to be not of good fame and character, one is not a fit and proper person to remain on the roll of legal practitioners. As the Tribunal in the course of its decision (AB 306) pointed out, s11 of the Legal Profession Act 1987 provides that a candidate for admission as a legal practitioner, however qualified in other respects, must not be admitted as a legal practitioner unless the Legal Practitioners Admission Board is satisfied that the candidate is of good fame and character, and sll of the Act provides that, unless the Legal Practitioners Admission Board declares that it is satisfied that the candidate is of good fame and character, it must refuse to approve the application for admission. If, therefore, the legislature has provided that persons who are not of good fame and character should not be admitted as legal practitioners it would seem to follow, almost inevitably, that persons who ' are found not to be of good fame and character should not be permitted to remain on the roll of legal practitioners (see, for example, Bannister v Wolton29; McBride v Walton2!). In the light of the matters which I have recorded above, I have concluded that the orders made by the Tribunal were inappropriate and that the appropriate Order to have been made was an order for the removal of the Respondent's name from the roll of legal practitioners. Although, in the light of the conclusion which I have just recorded, it is unnecessary that I do so, I think it appropriate to add some observations as to a number of decisions of the Legal Services Tribunal which were drawn to our attention by counsel for the Respondent during the course of his submissions on the hearing of the appeal (Transcript p36), the purpose for which the reference to those decisions was made being, as I understood it "to demonstrate that there (had) been, in recent times, a plethora of cases in the Tribunal in which the solicitor's sin has been to purport to witness documents not signed in his presence" and, second, to demonstrate that, "in all of those cases - and one would have thought in all of the cases - the conduct of the practitioner was far more 18. (1992) 176 CLR 239 19. 14 February 1994 Court of Appeal (unreported) 20. (1992-1993)30 NSWLR 699 21. 19 July 1994 Court of Appeal (unreported) URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Beazley JA) 39 dishonest than the conduct of (the Respondent). Yet, the tariff;, if I can put it that way, appears to be about $4,000.00." (Transcript p37). The principal decision was In re Lewis Fineman Yee?2 the other decisions were summarised in the course of the Tribunal's reasons - in which case the legal practitioner had purported to witness certain signatures when the signatures were not appended to the relevant document in his presence and when, in any event, at least one of the signatures was a forgery. In that case, despite the fact that the Law Society requested an order that the practitioner's be removed from the roll, the Tribunal, although finding that the practitioner's conduct "would be reasonably regarded as dishonourable and disgraceful by professional colleagues of good reputation and competency" and that the practitioner was therefore guilty of professional misconduct, declined to do so but reprimanded the legal practitioner and ordered him to pay a fine of $2,000.00. The other decisions which were summarised in the reasons of the Tribunal - some thirteen decisions in all - were all cases in which the practitioner concerned was charged with and found guilty of similar conduct, in none of which cases was the name of the practitioner concerned removed from the roll and in each of which cases the protective order was for a reprimand and a fine or for a fine alone. Although I appreciate that the statements of what are said to have been the facts in each such cases are necessarily incomplete and that there may have been extenuating circumstances in some, or even all, of such cases, and although I must accept that others may not share my view, I must say that I find it difficult to understand how it can be said that, in a case in which a legal practitioner has been privy to, or has facilitated the deceit of, and has, in all probability, by so doing, contributed to loss by, a third party, it can be said that the appropriate protective order called for is no more than the imposition of a fine. For the reasons which I have recorded above, I would propose the following Orders: 1. ORDER that the appeal be allowed. 2. ORDER that the cross-appeal be dismissed. 3. ORDER that O1 made by the Tribunal on 12 September 1996 be set aside. 4. IN LIEU THEREOF ORDER that the name of Ronald John Walsh be removed from the Roll of Legal Practitioners. 5. RESERVE to the Respondent liberty to apply to the Court for further order if the fines imposed by the Tribunal have been paid and are not repaid to the Respondent within 28 days of the date hereof. 6. ORDER that O2 and O3 made by the Tribunal be confirmed. 7. MAKE NO ORDER as to the costs of the appeal and the cross-appeal. Beazley JA I have read the judgment of Powell JA with whose reasons I agree. I wish, however, to make certain observations as to penalty. Powell JA has summarised the matters which led him to his finding that the respondent was not of good fame and character. The question for determination is what penalty should be imposed upon the respondent given that finding. Ptl0, Division 8, s171C(1) of the Legal Profession Act 1987 provides (in its form relevant to these proceedings): 22. 3 LTDR 1 40 UNREPORTED JUDGMENTS "Tf; after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct the Tribunal may do any one or more of the following: (a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct; (b) order that the legal practitioners practising certificate be cancelled; (c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order; (d) order that the legal practitioner pay a fine specified in the order not exceeding $50 000 if the legal practitioner is guilty of professional misconduct or not exceeding $5 000 if the legal practitioner is guilty of unsatisfactory professional conduct; (e) publicly reprimand the legal practitioner or if there are special circumstances privately reprimand the legal practitioner; (f) order that the legal practitioner undertake and complete a course of further legal education specified in the order; (g) in the case of a solicitor make any one or more of the orders referred to in subs(2); (h) if applicable make a compensation order; (i) make ancillary orders." S171C confers a discretion upon the Tribunal or the Court in respect of penalty. Notwithstanding this, it was submitted by senior counsel for the appellant that there were recent decisions of this Court?3 which pointed to a general rule to the effect that a finding that a practitioner was not of good fame and character required that the person's name be struck from the roll. I will refer to those decisions shortly. Before doing so it is convenient to consider the principles which govern disciplinary proceedings generally. In doing so, I do not propose to review all the relevant authorities. That has been done by this Court in a number of recent judgments, in particular, Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; and Law Society of New South Wales v Bannister (unreported, Court of Appeal, 27 August 1993). Rather, I propose to focus on the authorities of direct relevance to this matter. It is undisputed that disciplinary proceedings are concerned with the protection of the public: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey, and Gaudron JJ at 251; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1986) 117 CLR 177 at 183-184; Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207; and Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157. The court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty imposed should contain an element of general deterrence, "publicly marking the seriousness of what the instant solicitor has done": Foreman per Mahoney JA at 441; see also 23. Law Society of New South Wales v Bannister (unreported, Court of Appeal, 27 August 1993); McBride v Walton (unreported, Court of Appeal, 15 July 1994). URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Beazley JA) 41 444. This wider notion of protection of the public involves the Court ensuring that the high standards which are demanded of members of the profession are maintained. As this Court said in Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 at 364: "The function of a Court called upon to consider an application to remove the name of a practitioner from a roll of practitioners is to examine the material proffered to it in order to determine whether that material establishes that the solicitor has failed, by action or inaction, to maintain in his conduct the standards required of him as a member of the profession. The Court's duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and practitioner with the members of the public who find need to use the services of the profession. It is no part of that function to punish the solicitor whose conduct the Court finds to be in breach of those professional standards." The same point had earlier been made in Ex parte Macaulay (1930) 30 SR (NSW) 193 by Street CJ, who stated at 193-4: "...unless the Court insists on a high standard of conduct on the part of solicitors - unless the Court punishes severely any lapse from the proper standard - the public will never be properly safeguarded and the profession will never retain the respect which it ought to have in the community". In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297-298 Kitto J said that: " [t]he issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a (practitioner)". See also Clyne v New South Wales Bar Association at 188, 189. In New South Wales Bar Association v Evatt, the High Court said at 184: "The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser" The question of unfitness is not confined to a consideration of the conduct which is the subject of the disciplinary charge. Additional factors may be relevant. A failure to be honest with the Court or with fellow practitioners is one such consideration. In Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655, Isaacs J said at 681: "\.. if... there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court - a duty to itself to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future. " See also Higgins J at 691. In Foreman, Mahoney JA said at 447: 42 UNREPORTED JUDGMENTS "A practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner's duty to her client, to other practitioners and to herself: Meek v Fleming [1961] 2 QB 366 at 382, 383. The justice system win not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false. " Another relevant factor will be whether the practitioner truly understands the error of his or her ways. Evatt's case, to which I have referred earlier, involved a barrister who did not know that it was wrong to be a party to the organising of extortionate fees by a solicitor when the solicitor had the agreement of his client to charge those fees. The High Court held, at 183, that: "The Supreme Court was... in error in not appreciating that its findings of misconduct demonstrated the unfitness of the respondent to be a barrister, and compelled the conclusion that he should be disbarred. " The same principle, that a practitioner's failure to appreciate that the impugned conduct was wrong, was applied to the case of a solicitor who claimed to be ignorant of his duty when using a client's money: Law Society of New South Wales v Moulton [1981] 2 NSWLR 736. Whilst a practitioner's expressed intention not to re-offend is relevant to mitigation, it will have little weight unless accompanied by an understanding of the wrongfulness of the conduct which was the subject of the disciplinary charge. Mahoney JA dealt generally with the question of mitigation in Foreman at 444: "In deciding whether a person is a fit and proper person for this purpose, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner, or those aspects of it relevant to the office of a solicitor. A solicitor may affirm and sincerely believe that she will not offend again. But the character of the solicitor - demonstrated by the offence or otherwise - may be such that no sufficient reliance can be placed upon that affirmation." His Honour returned to the question of character at 449, observing that "character is tested not by what one does in good times but in bad". In arriving at questions of character the court may take into account an assessment of a practitioner's credibility. Credibility may also be taken into account in seeking to determine what a practitioner is apt to do in the future: see Bannister v Walton (1993) 30 NSWLR 600 at 723-729; Foreman at 450. It is also relevant to take into account whether the conduct in question is "an isolated or passing departure from proper professional standards amounting to something less than proved unfitness... ": Evatt at 183. The various factors to which I have referred are but specific matters relevant to the central question which confronts the Court in determining penalty, namely whether the solicitor is a fit and proper person to be held out by the Court as such. The Court's order must therefore be directed to ensuring that to the extent the practitioner is not, the practitioner's practice is restricted: Foreman at 441 per Mahoney JA. This brings me to the two decisions relied upon by counsel for the appellant. In Law Society of New South Wales v Bannister Sheller JA, with whom Gleeson CJ and Handley JA agreed, stated at 11: " [T]he supervisory jurisdiction of the Court and of statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the Charter of Justice that persons admitted to practise as solicitors befit and proper URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Beazley JA) 43 persons or, in the language of s16 of the Legal Profession Act 1987, of good fame and character is maintained. /t follows that if a solicitor is shown not to be a fit and proper person, he or she should be removed from the role. The Court further said at 12: "[R]etribution, a purpose of criminal punishment, is no part of the Court's purpose in making an order against a solicitor in the exercise of its supervisory jurisdiction. The exercise of the power to remove from the roll, suspend or fine a solicitor is directed to protecting the public by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise and that high standards are maintained. The maintenance of such standards involves deterring the offender from repeating the offence and deterring others who might be tempted to offend". In my opinion, contrary to the submissions of counsel for the appellant, Law Society of New South Wales v Bannister does not deny the Court's discretionary jurisdiction to make such order as will ensure that the public is protected in the sense to which I have referred. It is dear from the judgment, read as a whole, that, in determining the appropriate penalty the nature and extent of the improper conduct, and the need for specific and general deterrence in order to maintain the high standards demanded of members of the profession are relevant to the exercise of the Court's disciplinary jurisdiction. The Court may also take into account subjective considerations which would mitigate penalty "if the protective exercise being undertaken by the Tribunal requires that they be taken into account": Law Society of New South Wales v Bannister at 12. In McBride v Walton (unreported, Court of Appeal, 15 July 1994) Handley JA, in respect of proceedings under the Medical Practice Act 1992 (NSW) (which is in relevantly identical terms to the Legal Profession Act), expressed the more stringent view which is to be found in the first of the passages in Bannister quoted above. His Honour said at 25: "Parliament made a legislative judgment that persons who were not of good character should not become registered as medical practitioners. It also provided that lack of good character should be a ground of complaint against a registered medical practitioner. In these circumstances I have difficulty in seeing how the Tribunal could properly decide to leave a medical practitioner on the Register after it had found that at the time of its decision he or she was not a person of good character in the context of fitness to practise medicine." His Honour added that even if it was not inevitable that Dr Bannister be removed from the register, the order for removal in light of the finding of bad character, "was at least appropriate". Powell JA was of a like view. Again, I do not consider that there is anything in Handley JA's judgment which denies the discretionary nature of the Court's jurisdiction. Rather, the case was one where there were no mitigating factors sufficient to compel a lesser order than deregistration. The principles, then, which should guide the Court, and, I should add, the Legal Services Tribunal, in determining the appropriate penalty may be summarised shortly: ¢ The Court's power is discretionary; * Subject to considerations which would compel the Court to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll when the practitioner has been found not to be of good fame and character, 44 UNREPORTED JUDGMENTS The subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Court's jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct promptly to report it; « In general, mitigating factors, such as evidence of a respected reputation, no previously found misconduct, or service to the profession "are of considerably less significance than in the criminal sentencing process": Law Society of New South Wales v Bannister at 13. In this case, the respondent's conduct which was the subject of the complaint has warranted a finding that he is not a person of good fame and character. The conduct had as its genesis a family arrangement. That is a matter to which I will return. However, as has been fully canvassed by Powell JA, his misconduct went beyond the family arrangement. Although the respondent's admission that he had advised clients to act in a way similar to the way he acted in relation to powers of attorney was not the subject of any complaint, it does indicate a failure to appreciate that the important obligations imposed upon the grantee of a power of attorney are to be strictly observed and are not to be made subservient to mere convenience. The respondent clearly failed to recognise this. Further, the wrongful conduct was engaged in over a period of several years. It touched nearly all, if not ale aspects of the arrangements relating to the estate. The solicitor persisted in the defence of his conduct before the Legal Services Tribunal. Whilst acknowledging and giving full weight to his right to do so, he did so in circumstances where, as Powell JA has found and I agree, he failed to comprehend or ignored the fiduciary duty to which he was subject as grantee of the Power of Attorney. This failure was compounded by his evidence before the Tribunal as to the use of the Power of Attorney, which was false and either made with knowledge of the falsity, or recklessly, not caring whether it be true or not. His lack of honesty on that occasion was not an isolated instance of dishonesty. The respondent drafted three different Affidavits of Assets and Liabilities in support of the application for probate. The third affidavit is not presently relevant. Mrs Brain, the respondent's sister and co-executor refused to sign the first affidavit as she disputed the valuations which the respondent had placed upon certain of the properties. The respondent then drafted, swore and filed a different Affidavit of Assets and Liabilities (the second affidavit). This was false in a number of respects. It failed to disclose two properties, erroneously characterised the interest of the deceased in one property as an equitable interest only, and failed to accurately disclose the existence of money advances to and from or on behalf of the estate made by and between the beneficiaries. The second affidavit was filed and sworn in circumstances where the respondent did not present it to Mrs Brain, but filed it in support of an application for probate on his behalf with leave reserved to Mrs Brain to apply to be joined as an executor. However, he had failed or neglected to give her notice of his intention to apply for probate as he was required to do. Not only was the second affidavit false, its contents demonstrated a sophisticated knowledge of the legal and equitable principles of property law as well as of the fiscal consequences which flowed from characterising the interests in the properties as he did. The only possible conclusion is that he sought to benefit himself by his dishonesty. URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Beazley JA) 45 In my opinion, the solicitor's conduct was of such a serious nature as to require that his name be removed from the Roll of Solicitors, unless there are mitigating factors sufficient to warrant some other course. The mitigating factors in this case are the solicitor's long period in and service to the profession and the absence of any earlier or other finding of what I will generally describe as misconduct. Those factors are not of the kind which support or enhance the Court's protective jurisdiction and do not generally carry great weight as matters of mitigation. The question therefore is whether the fact that the genesis of the respondent's serious transgression related to family affairs should carry any weight in relation to penalty. I have already rejected a fine as being appropriate. Nor is an order requiring the respondent to work in a supervised capacity appropriate in this case, given the respondent's seniority in the profession and the fact that he practiced as a sole practitioner. The only other appropriate penalty, in my opinion, would be a period of suspension. The authorities suggest that an order for suspension will only be appropriate in very limited circumstances. In Law Society of New South Wales v McNamara (unreported, NSW Court of Appeal 7 March 1980), Reynolds JA stated (at 7): "An order for suspension must be based upon a view that at the termination of the period of suspension the practitioner will no longer be unfit to practice because, subject to any limitation imposed on the issue of a practising certificate, his name will then be on the roll of solicitors and he may resume his practice " His Honour further expressed the opinion that when cases of present unfitness were shown it would not frequently be appropriate to order suspension because it is difficult for a tribunal to feel confident that at the expiration of one or more years, a person presently unfit to practice will be fit. He continued (at 8): "The use of the power to suspend is valuable as a punitive measure but needs cautious application where fitness and the Court 's protective function is involved Clarke JA agreed with these observations in Jauncey v Law Society of New South Wales (unreported, NSW Court of Appeal 1 February 1989). His Honour stated (at 13): "This is more likely to arise in cases where an order is made long after the misconduct which demonstrated unfitness occurred and a meritorious degree of rehabilitation extending over the interval between misconduct and the hearing of a case has been shown." In In re A Practitioner (1984) 36 SASR 590 King CJ stated at 593: "The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner". See also In the matter of James William Mahoney, a Practitioner (1996) 189 LSJS 205 by Matheson J at 215. In my opinion, had the parameters of the respondent's conduct been confined to the wrongful use of the Power of Attorney, suspension may well have been an appropriate remedy, as it may have been possible to view that conduct as falling within the confines of the family arrangement. However, there are three matters of particular concern which, in my opinion, make suspension an inadequate penalty: first, the false affidavit filed in support of the probate application; secondly, the respondent's false evidence to the Tribunal; and thirdly, the respondent's justification of his conduct and lack of remorse. In these 46 UNREPORTED JUDGMENTS circumstances, it is difficult for the Court to be persuaded that there has been a reformation of character, a real repentance, or a determination to act uprightly and honourably, so that he may fairly be entrusted with the high duties and grave responsibilities of a member of the profession: see Incorporated Law Institute of New South Wales v Meagher per Isaacs J at 681. In the circumstances, although only after a great deal of deliberation, I consider that an order should be made striking the respondent's name from the roll. Clarke AJA It is not in doubt that the jurisdiction which this Court is required to exercise in cases where a legal practitioner is said to have been guilty of professional misconduct is protective. Where a finding of professional misconduct is made and the court is also of the opinion that the practitioner is unfit to be, for instance, a solicitor then the order which should be made in the protection of the public is an order removing the practitioner's name from the roll of solicitors. Prima facie it would seem to me that the same order should be made consequential upon a finding that the solicitor was not of good fame and character. That is certainly the view expressed by Powell JA. On the other hand Beazley JA has emphasised the discretionary nature of the Court's power, leaving open the possibility that the Court may decline in particular circumstances to remove a practitioner's name from the roll of solicitors notwithstanding a finding that the practitioner is not (that is at the time of hearing) of good fame and character. For my part, I would accept that the power exercised by the Court when making an order in a case such a this is discretionary but would nonetheless adhere to the view that, given the terms of s16 of the Legal Profession Act 1987, once a finding is made that the practitioner is not of good fame and character the proper exercise of the protective jurisdiction requires the making of an order removing the practitioner's name from the roll. Otherwise, as it seems to me, the Court would have failed to recognise the true nature of its obligation to afford protection to the public - an obligation the ambit of which has been discussed in, inter alia, Law Society of New South Wales K Bannister (NSW) Court of Appeal 27 August 1993 unreported). Of course, different considerations will, or may, apply where a finding is made that a practitioner has rehabilitated himself or herself over a lengthy period so that a finding that he or she was presently not of good fame and character should not be made. In the present case the Legal Services Tribunal made a positive finding that the respondent was not of good fame and character but added, without explanation, that this finding did not mean that he was unfit to remain on the roll of solicitors. I respectfully agree with the Tribunal, and Powell and Beazley JJA, that the evidence established that the respondent was not, at the time of the hearing, of good fame and character. This conclusion would follow from the uncontested facts alone although, like Powell and Beazley JJA, I am inclined to the view that the Tribunal erred in dismissing the third ground of complaint. In the circumstances, I would hold to the view that while the Tribunal may have been entitled to accept the respondent's statement that he was not aware that he was making a misleading statement to the Law Society, such lack of awareness could only result from an unjustified disregard of the need to provide an informed answer to the Society. URJ LAW SOCIETY OF NEW SOUTH WALES v WALSH (Clarke AJA) 47 Although I was initially concerned at the prospect of a practitioner of long standing being struck off the rolls for conduct in essentially familial transactions, an analysis of his admitted deceptions and his failure to comprehend the nature and extent of his wrong doing led me to the conclusion that no other order was appropriate. I should add that I share Powell JA's apprehension about the decision In re Lewis Fineman Yee (3 LTDR 1), and at least some of the Tribunal's decisions referred to therein. It follows that the Orders proposed by Powell JA should be made, substantially for the reasons give by his Honour. Appeal allowed. Cross-appeal be dismissed. O1 made by the Tribunal on 12 September 1996 be set aside. In lieu thereof the name of Ronald John Walsh be removed from the Roll of Legal Practitioners. 5. Reserve to the respondent liberty to apply to the Court for further order if the fines imposed by the Tribunal have been paid and are not repaid to the respondent within 28 days of the date hereof. 6. O2 and O3 made by the Tribunal be confirmed. 7. No order made as to the costs of the appeal and the cross-appeal. RYN Counsel for the appellant: J Basten QC Solicitors for the appellant: G J Still (Law Society of New South Wales) Counsel for the respondent: I M Wales Solicitors for the respondent: Stockman & Evans (Bankstown)