CITATION: Law Society of New South Wales v Levick [2007] NSWADT 52 DIVISION: Legal Services Division APPLICANT PARTIES: The Council of the Law Society of New South Wales RESPONDENT Wayne Ronald Levick FILE NUMBER: 062012 HEARING DATES: 27 November 2006 SUBMISSIONS CLOSED: 27 November 2006 DATE OF DECISION: 9 March 2007 BEFORE: Karpin A - ADCJ (Deputy President); Vass CB -Judicial Member; O'Neill A - Non Judicial Member CATCHWORDS: Solicitor – Disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Legal Profession Act 2004 APPLICANT D Barton, solicitor REPRESENTATION: RESPONDENT No appearance ORDERS: 1. The name of Wayne Ronald Levick be removed from the Local Roll of Lawyers.; 2. The respondent pay the applicant's costs of and incidental to the proceedings. REASONS FOR DECISION 1 This is an application that the name of the respondent, Wayne Ronald Levick, be removed from the Local Roll of Lawyers. 2 The grounds for that application are: Ground 1. The Solicitor wilfully breached Section 61 of the Legal Profession Act 1987. Ground 2. The Solicitor wilfully breach Section 62 of the Legal Profession Act 1987. Ground 3. The Solicitor misappropriated trust moneys. 3 The particulars of those three grounds are: In these particulars "the Receiver" means Jean Sayer, Chartered Accountant;"the Solicitor" means Wayne Ronald Levick;"the Society" means the Law Society of New South Wales;"ATO" means the Australian Taxation Office Particulars: Deficiency 1. At the date of Receivership there was a deficiency in the trust funds of the Solicitor of $56,988.44 comprised of the following:- Trust moneys received and credited to the Trust Bank Account to be accounted for 54,198.60 Trust moneys received for the payment of Withholding Tax not deposited to the Trust Bank Account 2,956.84 57,155.44 Less: Balance remaining in the Trust Account at the date of receivership 167.00 Excess of credit balance representing moneys received to be accounted for less trust funds available $56,988.44 Hans Semmler 1. On 2 October 2000 there was a credit to the trust ledger account of Mr Stemmler for a receipt of trust moneys which was described as "repayment of loan and royalty tax" in the sum of $7,630.27. This amount was not deposited to the Solicitor's trust account. 2. On 3 October 2000 a trust account cheque was drawn in favour of Athena Credit Co and in the sum of $622,922.09. Part of that cheque, to the sum of $6,936.61, was debited to Mr Stemmler's trust ledger thus creating a debit in the same amount. There were no funds held in the trust account on behalf of Mr Stemmler to cover this sum. 3. There is a further shortage of $693.61 in the trust ledger account in that that sum was not retained to cover Withholding Tax payable to the ATO and formed the balance of the receipt of $7,630.27 not deposited to the trust account. 4. The cheque in the sum of $6,936.61 created to that extent the deficiency in the trust funds of the Solicitor. Brian Wethes 1. On 2 October 2000 there was a credit to the trust ledger account of Mr Wethes for a receipt of trust moneys in the sum of $7,630.27. This amount was not deposited to the Solicitor's trust account. 2. On 3 October 2000 a trust account cheque in the sum of $622,922.09 was drawn in favour of Athena Credit Co. Part of that cheque, to the sum of $6,936.61, was debited to Mr Wethes' trust ledger thus creating a debit in the same amount. There were no funds held in the trust account on behalf of Mr Wethes to cover this sum. 3. There is a further shortage of $693.66 in the trust ledger account in that that sum was not retained to cover Withholding Tax payable to the ATO being part of the receipt of $7,630.27 not deposited to the trust account. 4. The cheque in the sum of $6,936.61 created to that extent the deficiency in the trust funds of the Solicitor. Richmond Gregory 1. On 2 October 2000 there was a credit to the trust ledger account of Mr Gregory for the receipt of trust moneys in the sum of $17,264.68. This amount which was described as "repayment of loan and royalty tax" was not deposited to the Solicitor's trust account. 2. On 3 October 2000 a trust account cheque in the sum of $622,922.09 was drawn in favour of Athena Credit Co. Part of that cheque, to the sum of $15,695.16, was debited to Mr Gregory's trust ledger thus creating a debit in the same amount. There were no funds held in the trust account on behalf of Mr Gregory to cover this sum. 3. The amount of $15,695.16 debited to this account being part of trust account cheque in the sum of $622,922.09 created a deficiency in the trust funds of the Solicitor to that extent. 4. There is a further shortage of $1,569.52 in the trust ledger account in that that sum was not retained to cover Withholding Tax payable to the ATO being part of the receipt of $17,264.68 not deposited to the trust account. Payment to Holloway & Co Trust Account 1. A Trust Account cheque in the sum of $32,029.12 was drawn on the Solicitor's Trust Account and presented on 7 November 2000. The cheque was described as being in respect of "re. Sturt St." 2. The cheque was not debited to the trust ledger account of any client in the trust ledger. There were no funds held in the Solicitor's Trust Account which were received and held to cover this payment which created to that extent a deficiency in the trust funds of the Solicitor. Leo Powell 1. On 20 November 2000 a Trust Account cheque in the sum of $1,092.00 was drawn on the Solicitor's Trust Account and presented on the following day. 2. The cheque was drawn payable to the Supreme Court and described as "re. Aust Carpet Cleaning Pty. Limited" and related to a client Leo Powell. 3. No moneys were received and held in the Solicitor's Trust Account to cover the payment to the Supreme Court. The cheque in the sum of $1,092.00 created to that extent the deficiency in the trust funds of the Solicitor. Malaisis Road Freight Pty Limited 1. On 7 March 2000 cheques for settlement moneys and costs were drawn. 2. There was an arithmetical error in the recording of the cheques and which error caused a debit of $150.00 to occur in the client's trust ledger. 3. On 31 March 2000 a receipt for a credit of $150.00 was entered in the Cash Book and in the trust ledger which eliminated the debit balance. 4. The sum of $150.00 was not ever deposited into the Solicitor's Trust Account and the debit was therefore never eliminated and formed part of the deficiency in the trust funds of the solicitor. ITR/Sengos 1. On 14 July 2000 the Solicitor drew a Trust Account cheque in the sum of $750.00 made payable to his firm. 2. On 8 September 2000 a deposit of $605.00 was made to the trust account ledger thus reducing the debit from $750.00 to $145.00 which sum formed part of the deficiency in the trust funds of the Solicitor. Phillip Northan 1. At the time of the appointment of the Receiver, the trust ledger account of Mr Northan recorded a credit balance of $4,973.27. 2. Of the sum of $4,973.27, $4,289.39 was Withholding Tax retained by the Solicitor in his Trust Account. 3. The nature of the sum of $683.88, being the balance in excess of the Withholding Tax, is unknown. 4. By reason of the deficiency as set out in Particular A herein in the trust funds of the Solicitor there were no funds in the Solicitor's Trust Account to cover the balance in the trust account ledger. Dirkminster Pty Limited 1. Amounts of $56,671.34 were received into the Solicitor's Trust Account on 3 April 2000 said to be in respect of two loans – one described as "Loan 4" and the other as "Loan 5" and representing interest on the sale of business. 2. On 3 April 2000, the sum of $51,519.40 was paid to Athena Credit Co Limited in respect of Loan 4. 3. In respect of Loan 5, Withholding Tax was paid on 28 November 2000 which payment formed part of a cheque in the sum of $187,282.68 – the then balance of the Solicitor's Trust Account. 4. A balance of $5,515.94 remained to the credit of the trust ledger account for the Withholding Tax in respect of Loan 4. 5. There were no moneys in the Trust Account to cover a payment of $5,151.94 by reason of the deficiency in the trust funds as set out in Particular A herein. The Solicitor did not pay the Withholding Tax. Nikolic Super Fund 1. As at the date of appointment of the Receiver, the trust ledger for the Nikolic Super Fund ("the Fund") had a credit balance of $18,745.45. There were no moneys held in the Trust Bank Account there being a deficiency in the trust funds as set out in Particular A herein. 2. Of the moneys standing to the Fund's credit, the sum of $5,727.23 was due for Withholding Tax but was not paid by the Solicitor. Capital Anaesthetic 1. At the date of the appointment of the Receiver, the trust ledger account for Capital Anaesthetic had a credit balance of $5,883.40. 2. The balance in the trust ledger account was due to the ATO for the payment of Withholding Tax but was not paid by the Solicitor. There were no moneys held in the Trust Bank Account there being a deficiency in trust funds as set out in Para.4 herein. Dennis Marshall 1. As at the appointment of the Receiver, there was a credit balance in the trust ledger account of Mr Marshall in the sum of $5,706.97. 2. The credit balance in Mr Marshall's trust ledger account was retained for payment to the ATO. 3. There were no funds in the Solicitor's Trust Account to cover the credit balance in the trust ledger there being a deficiency in trust funds as detailed in Para.4. Brad Wines 1. As at the appointment of the Receiver, there was a credit balance in the trust ledger account of Mr Wines in the sum of $1,417.37. 2. The credit balance in Mr Wines' trust ledger account was retained for payment to the ATO. 3. There were no funds in the Solicitor's Trust Account to cover the credit balance in the trust ledger there being a deficiency in trust funds as appears in Para.4. Tim Kirkness 1. As at the appointment of the Receiver, there was a credit balance in the trust ledger account of Mr Kirkness in the sum of $2,902.40. 2. The credit balance in Mr Kirkness' trust ledger account was retained for payment to the ATO. 3. There were no funds in the Solicitor's Trust Account to cover the credit balance in the trust ledger there being a deficiency in trust funds as detailed in Para.4. Rex Jones 1. As at the appointment of the Receiver, there was a credit balance in the trust ledger account of Mr Jones in the sum of $5,380.22. 2. The credit balance in Mr Jones' trust ledger account was retained for payment to the ATO. 3. There were no funds in the Solicitor's Trust Account to cover the credit balance in the trust ledger as there was a deficiency in trust funds as detailed in Para.4. Peter Beer 1. As at the appointment of the Receiver, there was a credit balance in the trust ledger account of Mr Beer in the sum of $3,890.47. 2. The credit balance in Mr Beer's trust ledger account was retained for payment to the ATO. 3. There were no funds in the Solicitor's Trust Account to cover the credit balance in the trust ledger. There was a deficiency in the trust funds of the Solicitor as detailed in Para.4 herein. 4 The evidence of the investigator and the receiver discloses a complex state of affairs in the respondent's trust account that was difficult to unravel. For the purposes of this decision, the Tribunal is satisfied from a perusal of those voluminous documents, that the deficiencies outlined in each of the above client matters, is established on the evidence contained in those reports. 5 During the course of her investigation, Miss Sayer engaged in lengthy correspondence with the respondent seeking explanations in relation to the apparent deficiencies in the trust account. That did not produce a satisfactory result, although the respondent did pay an amount of $9,000 in reduction of the shortfall. 6 The breaches of s.62 are evidenced by that material and the difficulty the investigator and receiver experienced in ascertaining the position concerning the trust account ledgers of those same clients. 7 The same factual matrix establishes that the respondent is guilty of misappropriation of trust monies. Ground 4 Mr Selth - Bar Association 1. In the course of an enquiry under Part 10 of the Legal Profession Act, 1987, by the Bar Association, the Respondent (a) used grossly offensive language; (b) displayed a contemptuous disregard for: the Respondent's professional status as a legal practitioner; the Respondent's obligations as an officer of the Court; the statutory disciplinary roles of the Legal Services Commissioner and the Bar Council; and Ms Maconachie as a disciplinary investigator for the Bar Council. (c) In a letter dated 6 December 2002 to Elizabeth Maconachie, the Deputy Director of the Professional Conduct Department of the Bar Association, the solicitor said as follows: "In case I have failed to express myself clearly enough or you hold any misapprehension as to purport of this letter, I am telling you to go fuck yourself." (d) In a letter dated 23 December 2002 to Mr P.A. Selth, the Executive Director of the Bar Association, the solicitor said as follows: "Wake up to yourself, you miserable little turd!" Ground 5 Failure to comply with conditions of practising certificate The solicitor has failed to comply with the following condition (to which he consented) attached to his practising certificate: "that the practitioner enrol and successfully complete ( with a pass mark of at least 75%) the Solicitors Trust Accounting Course conducted by the College of Law by 30 October 2000 or such other date(s) as the Manager, Professional Standards Department, shall agree to" in that: (a) the solicitor failed to enrol in the said course at all; (b) the solicitor failed to obtain a pass mark of at least 75%. He obtained a mark of 41%. 8 The Tribunal accepts that the respondent failed to attend the solicitor's accounting course at the College of Law, in which he had undertaken to participate, through error in failing to read or understand correspondence he received. The respondent sat the exam without having attended the course. He failed the exam, achieving only 41%. On 2 November the respondent wrote requesting consent to his sitting the exam again. That request was not dealt with or pursued having regard to the more serious problems that emerged shortly thereafter concerning the respondent's trust account. 9 The respondent did not appear at the hearing. The Tribunal is satisfied that he had been served with the original application, supporting evidence and notice of the hearing. The Tribunal accordingly proceeded to hear the matter in his absence. The respondent had filed no material in reply to the application and supporting evidence. 10 The applicant relied upon affidavits of Jean Sayer, Raymond John Collins, David Watson, and Patricia Anne Sinclair. 11 David Watson was appointed investigator on 22 June 2000. He submitted his report dated 15 November 2000 to the Law Society on 16 November 2000. 12 On 7 December 2000, Jean Sayer, chartered accountant, was appointed by the Supreme Court as receiver for the respondent's practice pursuant to s.92 Legal Profession Act 1987. 13 The Tribunal is satisfied that the particulars set out in paragraphs 1-20 hereof, each of which is supported by the affidavit evidence, establish that the respondent is guilty of the first 3 grounds, namely, breaches of ss.61 & 62 of the Legal Profession Act 1987, and misappropriation of trust monies. 14 The Tribunal is satisfied that each of those breaches constitute professional misconduct. 15 The 4th and 5th grounds arise from correspondence between the New South Wales Bar Association and the respondent. 16 On 4 December 2002, M/s E. Maconachie, Deputy Director Professional Conduct, wrote to the respondent seeking his assistance in respect of a complaint under investigation by the Bar Council. This concerned a matter in which the respondent had been the instructing solicitor. The 3 page letter asked the respondent a number of questions. 17 On 6 December 2002 the respondent wrote a short letter to M/s Maconachie the relevant paragraphs of which are: "Please be so good as to understand that I have absolutely no intention of answering your long list of boring questions. As I have been unable to practice law since the 28th of November 2000 and no longer have possession of Mr. Greer's file I suggest that you do not forward to me any further communication regarding this (or any other) matter. In case I have failed to express myself clearly enough or you hold any misapprehension as to purport of this letter, I am telling you to go fuck yourself." 18 Not surprisingly that prompted a reply from the Executive Director, Mr. P.A.Selth, taking exception to the respondent's language and advising him that a complaint would be made to the Legal Services Commissioner pursuant to s.134(2)( c) of the Legal Profession Act 1987. 19 That letter, in turn, produced a response from the respondent couched in terms both intemperate and unprofessional, which relevantly said: "As for the Bar Council – who do they think they are? I have never been a member of the New South Wales Bar Association. I owe nothing to that body, nor they to me. Wake up to yourself, you miserable little turd!" 20 The Tribunal is satisfied that grounds 4 and 5 are established on the evidence of the correspondence forwarded by the respondent to the Bar Association. 21 The Tribunal finds the respondent guilty of unsatisfactory professional conduct on each of grounds four and five. 22 The Tribunal orders: 1. That the name of Wayne Ronald Levick be removed from the Local Roll of Lawyers. 2. The respondent to pay the costs of the applicant of and incidental to these proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.