CITATION: Law Society of New South Wales -v- Goold [2001] NSWADT 171 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Matthew Pierce Goold FILE NUMBER: 002027 HEARING DATES: 15/08/2001 SUBMISSIONS CLOSED: 08/15/2001 DATE OF DECISION: 10/19/2001 BEFORE: Coombs J QC - Judicial Member; Greenwood J - Judicial Member; Geddes J - Member APPLICATION: Professional Misconduct - misappropriate trust moneys/moneys MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: Duval -v- Law Society of New South Wales (NSW Court of Appeal) Barry John Penfold 1998 4LPDR APPLICANT REPRESENTATION: L Pierotti, solicitor RESPONDENT P Bolster, barrister ORDERS: Orders made 15 August 2001: 1. The solicitor's practicing certificate shall be restricted so as to provide that the solicitor cannot practice as a principal, either alone or as a partner in a firm, for a period of three years from today; 2. That the solicitor be fined the sum of $10,000 to be paid within three months from today. If not paid within that time, the practising certificate of the legal practitioner shall be cancelled and no further certificate be issued until it is paid; 3. That the solicitor pay the costs of the Council of the Law Society, including all costs of directions, hearings, adjournments and other mentions as agreed or assessed. Ex tempore reasons 1 The solicitor, Matthew Pierce Goold, has admitted that on 20 October 1997 he misappropriated the sum of $1500, the property of Messrs Farrell Lusher, solicitors of Wagga Wagga. The society has proved the following facts to the satisfaction of the Tribunal: (1) That Matthew Pierce Goold, (the solicitor), was as at 20 October 1997employed by Messrs Farrell Lusher, solicitors of Wagga Wagga (the firm); (2) Ms Anna Slattery, a solicitor in the employ of the firm, had conduct of an unfair dismissal matter involving a client, Robert Tuck (the matter); (3) The matter was eventually settled; (4) Prior to her going on leave in October 1997 Ms Slattery indicated to the solicitor that total costs in the sum of $1,500 were to be charged to Mr Tuck; (5) An account in the sum of $1,575, which included $75 by way of disbursements, was issued on or about 2 October 1997; (6) The wife of Robert Tuck, Mrs Margaret Tuck, attended the firm on 20 October 1997 and at which time she handed to the solicitor the sum of $1,500; (7) The solicitor handed to Mrs Margaret Tuck a handwritten receipt acknowledging receipt of $1,500. That receipt was addressed to Robert Tuck and was dated 20 October 1997; (8) The solicitor did not pay the money to the firm. The solicitor misappropriated the sum of $1,500 paid by Mrs Tuck 2 No submission was made on behalf of the solicitor that this could be categorised as anything other than professional misconduct. The essential question is what should the Tribunal's response be. The seriousness of the misconduct cannot be denied. In Duval -v- Law Society of New South Wales Handley JA said: This court would be departing from a long course of authority if it were to allow the appeal and substitute a period of suspension for the order of the Tribunal removing the appellant from the roll. Counsel were not able to refer me to any case where a solicitor found guilty of misappropriation or wilful contravention of Section 41(1) has not been struck off the roll. Any decision to the contrary would signal to the profession and the community that this court was no longer insisting on solicitors maintaining the highest standards of personal honesty and integrity in their dealings with clients and the public and in the handling of moneys entrusted to their charge 3 In the same case Kirby J, President (as he then was) said: The normal consequences of the misuse of entrusted funds by a solicitor and finding of wilful breaches of the statutory prohibition in that regard is removal of the name of the solicitor from the roll. 4 Two exceptions in fact exist in the cases of Colin Peck before the Solicitors' Statutory Committee on 23 April 1981 and Barry John Penfold 1998 4LPDR at page 19. The Tribunal would, in almost every case, agree that no practising certificate should be granted in such a case. The present case is however we think exceptional enough to warrant a more lenient approach. Extenuating circumstances existed in October 1997. They included: (a) the health of the solicitor (which he does not seek to rely upon as a factor but which was, the Tribunal thinks, a stressor affecting his judgment; (b) the health of his wife which is in the same category; (c) sudden and unforeseen expense through his insurer denying cover for a motor accident because he was under the influence at the time of it. 5 None of these would have helped in 1997. But three and a half years have passed, and the question now is whether he is, in August 2001, a fit and proper person to hold a limited practising certificate. His character evidence is of limited weight but of great weight is the affidavit and oral evidence of a partner in the firm where he is presently employed, Peter McCrohan. He told us today that Goold has his trust and that he displays maturity and humanity in his dealings with the firm's personal injury clients. 6 He described in detail the financial controls in place at the firm which would seem to us to preclude any repetition of the offence and also of close monitoring of charging practice and collection and receipting of cash and cheques. The solicitor's health is now stabilised and his wife's epilepsy is controlled. His finances are under his father-in-law's control. He impressed the Tribunal as contrite and ashamed. His account of his solicitor father's reaction to his conduct brought tears to his eyes. 7 The Tribunal accept his statement that this is a one-off episode and that he is unlikely to offend again. 8 Accordingly, the Tribunal makes the following orders: (1) The solicitor's practicing certificate shall be restricted so as to provide that the solicitor cannot practice as a principal, either alone or as a partner in a firm, for a period of three years from today. (2) That the solicitor be fined the sum of $10,000 to be paid within three months from today. If not paid within that time, the practising certificate of the legal practitioner shall be cancelled and no further certificate be issued until it is paid. (3) That the solicitor pay the costs of the Council of the Law Society, including all costs of directions, hearings, adjournments and other mentions as agreed or assessed 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.