CITATION: Law Society of New South Wales -v- Ellis [2001] NSWADT 156 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Perry Ellis FILE NUMBER: 012001 HEARING DATES: 03/05/2001 SUBMISSIONS CLOSED: 05/03/2001 DATE OF DECISION: 09/20/2001 BEFORE: Brennan JWF - Judicial Member; Durbach A - Judicial Member; Mara A - Member APPLICATION: Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to carry out instructions - Professional Misconduct - fail to keep accounts - Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - mislead client - Professional Misconduct - mislead Investigator - Professional Misconduct - mislead Law Society/Bar Association/LSC MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Barwick -v- Law Society of NSW 2000 HCA2 CASES CITED: Allinson -v- The General Council of Medical Education and Registration 1894 1QBD750 Bridges -v- The Law Society of NSW [1983] 2NSWLR361 APPLICANT REPRESENTATION: G Lindsay SC, barrister RESPONDENT T Williams, solicitor ORDERS: 1. That the name of Perry Ellis be removed from the Roll of Legal Practitioners; 2. That the Respondent pay the costs of the Applicant of and incidental to these proceedings as agreed or assessed, such costs to include counsel's fees calculated on the basis of fees properly payable to junior counsel; 3. That liberty be reserved to each party to apply for further directions in relation to the implementation of Order 2 hereof. 1 On 5 January 2001, the Applicant, the Council of the Law Society of New South Wales ("the Society") informed the Tribunal that, as a result of the Council's investigation of a complaint made under Part 10 of the Legal Profession Act 1987 ("the Act") against Perry Ellis ("the Practitioner") a legal Practitioner within the meaning of Section 128 of the Act, the Council claims that the Practitioner while practising as a solicitor was guilty of professional misconduct. 2 Professional misconduct was alleged on the grounds that: (a) He wilfully contravened Section 61 of the Legal Profession Act 1987. (b) He wilfully contravened Section 62 of the Legal Profession Act 1987. (c) He wilfully failed to comply with professional obligations to submit documents within his possession custody or control for a timely assessment of the payment of stamp duty. (d) He was guilty of neglect, incompetence and delay which was both gross and dishonest. (e) He wilfully engaged in conduct calculated to mislead or deceive, respectively: (i) The Office of State Revenue and the Land Titles Office; (ii) The Law Society of New South Wales; (iii) His clients; and (iv) Jean Sayer, a Receiver appointed by the Supreme Court of New South Wales pursuant to Section 92 of the Legal Profession Act 1987 in relation to his conduct of the affairs of his clients in his practice as a solicitor. (f) He wilfully obstructed and delayed Ms Sayer in the performance of her duties as a Receiver appointed by the Supreme Court of New South Wales. (g) He failed to appear in the Family Court of Australia on behalf of a client for whom he was instructed to appear. 3 The Applicant sought orders that the name of the Practitioner be removed from the Roll of Legal Practitioners and that the Practitioner pay the costs of and incidental to these proceedings. 4 A Reply to the information was filed by Mr Williams, solicitor on behalf of the Practitioner on 29 March 2001. By that response, the Practitioner asserted that he did not contest the allegations set out in the information and did not oppose the orders sought. 5 Mr Williams appeared for the Practitioner at the hearing but the Practitioner did not place any evidence before the Tribunal, nor did he attend the hearing for the purposes of giving evidence and being cross-examined. The Practitioner through his Solicitor advised the Tribunal that he wanted the matter to proceed. 6 There were prior proceedings between the same parties and the Tribunal as constituted for this hearing was advised that the processes required under Part 10 of the Act, as interpreted by the High Court of Australia in Barwick -v- Law Society of NSW 2000HCA2 had not been followed in those proceedings and Senior Counsel on behalf of the Society conceded that those proceedings were a nullity. 7 The affidavit of Mr Collins filed in support of the information had annexed to it a letter from Mr Williams on behalf of the Practitioner dated 27 September 2000. That letter advised the Society that the Practitioner did not oppose the making of a determination by the Society under Section 137(2)(a) and/or Section 127(2)(b) of the Act and acknowledged that the conduct complained of is professional misconduct and that, given the nature of the misconduct, the Practitioner recognised that a striking off order must be regarded as inevitable. That letter also contained other material which was the subject of some comment during the hearing. It was readily conceded by Mr Williams that it was not the intention or the effect of the letter of 27 October 2000 to achieve an exculpatory benefit for the Practitioner, nor was it to be thought of as some sort of back-door attempt for the Practitioner to avoid giving evidence but nonetheless to get something in the nature of evidence on the record. Mr Williams conceded that this material was not evidence before the Tribunal. Two further Affidavits were admitted into evidence, the first being an Affidavit by Jean Sayer, who was the Receiver appointed by the Supreme Court referred to in the particulars. Ms Sayer's Affidavit annexed five reports and her oral testimony comprised the vast majority of material before the Tribunal. In addition, there was an Affidavit by Toni Marsh which related to complaints numbered 2(e)(iii) and 2(g) above. 8 The Practitioner had a trust account at the National Bank Broadway. The evidence of the Receiver is that the account was seldom used and in one period for over forty months up to November 1994, it had a nil balance and thereafter several isolated transactions only. His Office Account was conducted at that same branch but the Receiver found a further account styled "Perry Ellis & Associates" at the ANZ Bank at Lakemba as well as Home Loan Account at ANZ Bankstown and a Visa Account with ANZ. The first ground of complaint – wilful contravention of section 61 of the Act 9 The evidence in relation to this ground is particularised under five separate headings. 10 The first related to misappropriation for his own benefit of trust moneys received from clients for payment of stamp duty. The material before the Tribunal included sixteen matters involving such misappropriation. Ms Sayer traced Trust moneys that were Trust moneys received from clients for payment of stamp duty that had been deposited into the personal and office accounts of the Practitioner. 11 In relation to the first of three purchases by Manomohan, contract for purchase of the property was exchanged on 21 June 1994. The following day the client paid the Practitioner $7,012.00 to cover stamp duty on the contract and mortgage. The cheque was paid to the Practitioner's account at the ANZ Bank the day after exchange and the purchase and mortgage was settled in early August 1994. Documents obtained from the Land Titles Office show that the transfer and mortgage were stamped on 20 March 1996. 12 On the second real estate purchase by the same client, under contract dated 7 March 1995, the Practitioner received a further cheque for stamp duty on the contract and transfer of $8,742.00 which was also paid into the Practitioner's account at ANZ Bank. Land Titles Office records show that the transfer and a mortgage to the Advance Bank were stamped on 20 March 1996. The file in this matter was not produced. The Practitioner informed the Receiver that he had returned the file to the client, but Dr Manomohan did not have this file. 13 The Practitioner also acted for the same client on a third real estate purchase where he received a cheque for $17,312.00 to cover contract, transfer and Mortgage stamp duty which cheque was also deposited to the Practitioner's account at ANZ Bank, that deposit being made on 5 July 1995 when the account itself was overdrawn in the sum of almost $36,000.00. The purchase and the mortgage were settled on 14 July 1995. Land Titles Office documents show that the transfer was stamped on 19 March 1996. The Practitioner incorrectly informed the Receiver that this file was also held by the client. 14 The Practitioner acted for clients named Galimi on a lease of premises at Earlwood to Azrak and Vitiello. The lessees paid to the Practitioner costs, stamp duty and registration fees of $1,555.00 which the Practitioner paid into the firm's Office Account at the National Bank on 3 January 1996. No lease was ever registered and after the receivership the lessees were required to enter a new lease with new solicitors. The Practitioner did not account to the lessees for the sum of $1,555.00 received by him. 15 The Practitioner acted for Christianson and Millar on a purchase of a property on which contracts were exchanged on 15 February 1995.Ms Sayer ascertained that the Practitioner wrote to his clients on 20 February 1995, requesting a cheque for stamp duty on the documents of $4,202.00 although banking records indicate that a cheque for that sum was provided by the clients and paid into the Practitioner's account at the ANZ Bank on 9 February 1995. Stamp duty on the contract and mortgage were not paid until 29 September 1995. The duty was paid on these documents with cheques that covered the normal duty on the Christianson / Millar transactions, plus the duty on an agreement Borges/Ali. The total duty was paid by two cheques, one drawn by another client Rattan for stamp duty on another contract for Sale and the other a cheque on the Practitioner's ANZ Bank account. Office of State Revenue records showed the date of the contract as 15 August 1995 and the mortgage the following day. The contract for Sale obtained from the vendor's solicitors disclosed the actual date of exchange of contracts. 16 The Practitioner acted for Mr Ali as purchaser from Mr and Mrs Borges as vendors in another transaction. He requested a cheque for stamp duty from the purchaser of $2,099.00 and used those moneys to pay part of the stamp duty in another transaction. The balance of that stamp duty on that other transaction was paid from some other unascertained source. The file in the other matter was not obtained by the Receiver but stamp duty for Mr Ali was paid by the cheque provided by Mr and Mrs Rattan (to pay their own stamp duty) and a cheque drawn by the Practitioner on his ANZ Bank account. 17 In that sale Borges to Ali, the sum of $9,700.00, being part of the deposit paid by Mr Ali, was received by the Practitioner and paid to his personal account at the ANZ Bank. When the deposit was paid, the account was overdrawn in the sum of just over $35,000.00. After the deposit, further cheques of almost $16,000.00 were drawn against the account by the Practitioner. The transaction was settled on 9 October 1995 and cheques were drawn by the Practitioner on his personal ANZ account to pay the agent's commission and the balance of deposit to the vendor. 18 The Practitioner acted for Rattan on a purchase and for both parties on a mortgage to Advance Bank. Mr and Mrs Rattan provided the Practitioner with a cheque for the sum of $5,057.00 to cover stamp duty and received a letter from the Practitioner confirming that $5,057.00 had been paid by the clients for that purpose. A copy of that letter was not in the file received by the Receiver from the Practitioner. The cheque was applied to pay stamp duty on the contract for Ali and the contract for Christianson and Millar already referred to. The matter was settled 6 November 1995 and the client received a letter from the Practitioner dated 14 November 1995 advising that certificates of title were held by Advance Bank, although a copy of that letter was not in the instruction file received by the Receiver, whose searches established that the documents were stamped by the Practitioner on 12 April 1996 and subsequently lodged for registration by the solicitors for Advance Bank. 19 Contracts were exchanged on 5 October 1995 in a matter of Moore, where the Practitioner acted for the purchaser on the purchase and for both parties on a mortgage to Advance Bank. The matter was settled on 10 November 1995. The client provided the Practitioner on 29 September 1995 with a cheque for $4,645.00 payable to the Office of State Revenue to cover the stamp duties on the purchase and mortgage and that cheque was, on 29 September 1995, with a cheque for $7,738.00 drawn on the Practitioner's ANZ Bank account, used to pay stamp duty for other clients of the Practitioner, Mr and Mrs Ryan. The Moore transfer and mortgage was stamped on 29 February 1996 and the dates on those documents changed from 10 November 1995 to 10 February 1996. 20 The Practitioner acted for Ms Calaizis on her purchase of property at Earlwood on which contracts were exchanged on 21 June 1995 and also for that client and Advance Bank in relation to a mortgage to be secured over the purchased property. Ms Calaizis provided the Practitioner with a Bank cheque for $7,192.00 to cover stamp duty which the Receiver established was deposited in the Visa Card account of Perry Ellis & Associates on 28 July 1995. The Receiver established that on 8 March 1996 during the period of a trust account inspection the Practitioner phoned Ms Calaizis and told her that as part of a random audit it was necessary for him to produce a copy of the stamp duty cheque which he advised his staff had forgotten to copy. The Practitioner requested his client to write out another cheque and he gave her the money to cover it and this was done and the client's cheque used by the Practitioner to purchase a bank cheque in favour of the Office of State Revenue. The Practitioner then stamped the documents on 12 March 1996 and the title was registered in the client's name on 12 April 1996 when the documents were lodged for registration by the Bank's solicitors. 21 In another transaction the Practitioner acted for Halpin and Friar on a purchase and for all parties on an Advance Bank mortgage. The vendor's copy of the contract is dated 10 March 1995 and four days before that the Practitioner received from Halpin a cheque for $4,889.00 in favour of his firm to cover the stamp duty which cheque was credited to the Practitioner's Visa Card account on 8 March 1995. On 2 May 1995 the Practitioner advised his clients that their certificate of title was held by Advance Bank and stamp duty was subsequently paid by the Practitioner on 1 March 1996 when the documents were registered. The contract stamped by the Practitioner was dated 30 January 1996 and the transfer and Mortgage dated 15 February 1996. 22 The Practitioner acted for Aliano on a purchase and also for that client and Advance Bank on a mortgage in relation to a property at St Clair. Contracts were exchanged on 19 March 1995 and the transaction settled 8 May 1995. At the time of the first report of the Receiver on 25 March 1997 Ms Sayer's evidence was that, subject to confirmation by reference to the paid cheque, it appeared that Aliano gave the Practitioner a cheque for $5,708.00 for stamp duty on or about 10 February 1995 and that a cheque in that sum had been deposited on that date to the account of the Practitioner at ANZ Lakemba. As at the date of the first report the title remained registered in the name of the vendor to Aliano and the mortgage to the Bank had not been registered and the whereabouts of the title documents was not known. 23 In her second report dated 22 April 1997 Ms Sayer refers again to the Aliano matter in which the instruction file was amongst those missing and her evidence is that at settlement at the direction of the Practitioner a cheque for $6,497.00 was provided by Advance Bank as part of the proceeds of the advance to cover stamp duty on contract and mortgage. There is no reference in this second interim report, or indeed in the fourth report, to the cheque for $5,708.00 referred to in the first report. The evidence in relation to that cheque of $5,708.00 is inconclusive and that part of the complaint that relates to that cheque in not established to the satisfaction of the Tribunal. However, the second report raises issues that are also dealt with in the fourth report of 17 February 1998. The fourth report and the supporting documentation annexed establishes for the purposes of this matter that a sum of $27,562.67 was received by the Practitioner and paid into an account styled in the name of the firm as trustee for J & B Aliano. The Receiver in the second and fourth reports describes and calculates the disposition of the loan of $190,000.00 received on settlement and notes that interest on the account opened in trust for the parties, amounted after taxes to $116.60 and was not accounted for to the client. In addition the sum of $6,613.60 held in the account to cover stamp duty (which the Receiver calculated at $5,425.00) was withdrawn from that account by the Practitioner on 8 August 1995 and deposited to the credit of the office account of the Practitioner at National Bank. 24 The evidence of misappropriation of the sum of $6,613.60 and failure to account for the interest accrued is quite clear. There is no further evidence of the earlier cheque thought by the Receiver to be received for payment of stamp duty nor any material to indicate whether the documents involved were stamped and registered. 25 Another missing file referred to in the first report of the Receiver relates to a purchase by Maureen O'Hara of a property at Springfield under a contract dated 2 May 1995. The Practitioner acted for Ms O'Hara and also for her and the Advance Bank on a mortgage over the property. The purchase was settled 26 May 1995. A cheque for $3,673.00 was paid to the account of the Practitioner at ANZ Bank Lakemba on 7 April 1995 and this was confirmed in the second report of the Receiver dated 22 April 1997. A search carried out by the Receiver on 14 May 1996 showed the title to the property was still in the name of the vendor and a further search on 3 April 1997 showed no change in that position. In this, as in other matters, it is clear that the Practitioner's costs and disbursements were separately paid by the client and there is clear evidence of the misappropriation complained of. 26 The Practitioner acted for Yi as purchaser for a property at Punchbowl under a contract dated 28 November 1994 and also for Yi and Advance Bank in relation to a mortgage over that property. Costs and disbursements were paid separately to the Practitioner's Office account at National Bank Broadway and a separate cheque for $1,500.00 for stamp duty was provided to the Practitioner by the client. Ms Sayer's investigations indicate that that cheque appeared to form part of a deposit made to the Practitioner's personal account at the ANZ Bank Lakemba on 5 December 1994. A search of the title disclosed on 7 April 1997 that the property remained in the name of the original vendor to Yi and there was no mortgage registered to secure the advance to Yi by Advance Bank. 27 Another matter where the instruction file was missing was Barry in which the Practitioner acted for the purchasers, Mr and Mrs Barry, and also for the purchasers and the Advance Bank. . 28 The Receiver reported obtaining a copy of the contract from the vendor's solicitors which shows it was dated 12 October 1994. The client paid the Practitioner $5,607.00 to cover stamp duty which the Receiver reported appeared to be deposited in the personal account of the Practitioner at ANZ Bank Lakemba on 11 October 1994. The Practitioner lodged the documents for stamping under the name of Titleco Pty Limited on 11 July 1996 showing on the lodgement form the contract and transfer dated as 27 May 1996 and the mortgage dated 17 June 1996. The transfer, when registered, bore the date 25 November 1994. 29 The matter of Tudor, where once again the file was missing, involved the Practitioner acting for the purchasers on purchase of property and also for those clients and the Advance Bank on a mortgage over that property. Contracts were exchanged on 20 July 1994 and the purchaser's payment of costs and disbursements was deposited in the Office Account of the Practitioner at the National Bank. A cheque for $4,510.00 for stamp duty provided by the purchasers was deposited to the Practitioner's account at ANZ Bank Lakemba. The Practitioner, once more, used Titleco Pty Limited to lodge the documents for stamping on 11 July 1996 and the Stamp Office Application shows the contract and transfers executed on 20 May 1996 and the Mortgage to Advance Bank executed on 10 June 1996. The duty of $4,506.00 was paid by the Practitioner and the transfer as lodged at the Land Titles Office bears the date 24 August 1994. 30 Another missing file was that of Choong which concerned the purchase of a property at Lakemba where the Practitioner acted for the purchaser and also for the purchaser and Advance Bank in relation to a mortgage advance. The vendor's solicitors provided a copy of the contract which was dated 1 June 1994. The sum of $8,294.00 was paid to the account of the Practitioner at the ANZ Bank Lakemba on 6 June 1994. The Practitioner in the name of Titleco Pty Limited lodged the documents for stamping on 29 July 1996. The application to the Office of State Revenue of the Practitioner shows the date of execution of the documents as 1 July 1996 and the copy of the transfer obtained from the Land Titles Office shows the date of transfer as 28 July 1994. Costs and disbursements paid by the purchaser in relation to the matter were deposited separately to the Office Account of the Practitioner at National Australia Bank. 31 The Practitioner acted for Ms Beilby who provided a cheque for $3,791.00 for stamp duty on a contract, transfer and Mortgage to the Practitioner which cheque was deposited to the Practitioner's account at the ANZ Bank Lakemba on 7 November 1994. The Practitioner acted for Ms Beilby on the purchase of a property at Villawood and also for mortgagor and mortgagee in relation to a mortgage loan by Advance Bank. The contracts were exchanged on 31 October 1994 and the Practitioner's costs were paid at settlement to the Practitioner. Ms Bielby produced a letter from the Practitioner saying that the matter was settled on 2 December 1994. A title search on 7 April 1997 showed that the title to the property remained in the name of the vendor to Ms Bielby so there was no registration of the transfer in that period to the client, nor of the mortgage to Advance Bank. At the time of the second interim report of Ms Sayer, namely 22 April 1997 the title documents were missing and there was nothing to indicate at that stage that stamp duty had been paid. 32 The Practitioner acted for Lie and Sim on the purchase of a property at Greenacre and for those clients and also the Advance Bank in relation to a mortgage. A letter from Perry Ellis & Associates dated 19 July 1993 to the purchasers reported that contracts for Sale were exchanged on 30 June 1993. On 30 July 1993 the client provided the Practitioner with a cheque for $5,986.00 for stamp duty and costs and Office Account receipts were issued for those payments. A search of the title made on 7 April 1997 showed the property still registered in the name of the vendor to the Practitioner's clients. The report does not otherwise contain evidence in relation to settlement or payment of stamp duty so the actual matters established are clearly misappropriation of clients' funds, the payment of Trust moneys into an account other than a Trust Account and once more neglect and delay in protecting the interests of his clients by failing to register the transfer and mortgage. The mortgage in this instance secured an advance made of $139,500.00. 33 The last of the matters particularised under this first heading is a complaint in relation to a purchase by Tritsaris of a unit at Earlwood on which contracts were exchanged on or about 21 March 1995 and the matter settled on 5 May 1995. The Practitioner also acted for both parties in relation to a mortgage from Advance Bank. As at the time of her second report on 22 April 1997 Ms Sayer had had the title searched which disclosed the property remained in the name of the vendors to Mr Tritsaris and there was no registered mortgage for the loan by Advance Bank. 34 In her third report dated 17 February 1998, Ms Sayer provided evidence of payment to the Practitioner of the sum of $6,719.00 for costs and stamp duty although the paid cheque itself could not be found. Ms Sayer was not able to identify the cheque in any of the accounts of the Practitioner but was satisfied that the cheque was not used for payment of stamp duty as the documents were eventually recovered by Ms Sayer from the Practitioner and they had not been stamped. The settlement sheet showed the matter as being settled on 5 May 1995 and this was also confirmed by letter from Practitioner to the clients of 22 June 1995. 35 The Tribunal accepts the evidence detailed above as establishing the misappropriation alleged. Some of the facts established and detailed above are also relied upon in support of other complaints. The evidence establishes the systematic misconduct of the Practitioner. 36 In relation to the first set of particulars of the first count the Tribunal finds the wilful breaches of S61 complained of established in the persistent misappropriation for his own benefit of trust moneys received for payment of stamp duties. This is clearly dishonest and disgraceful behaviour and constitutes serious professional misconduct. The second group of breaches of section 61 of the Act relied upon in the first ground 37 The second group of contraventions of Section 61 of the Act particularised alleges that the Practitioner misappropriated Trust moneys for his own benefit by using them to fund his personal expenses, including his housing loan repayments and payment of his ANZ Visa account. 38 From her examination of the records and activities of the Practitioner, the evidence of Ms Sayer in her first report is in the following terms: "Mr Ellis has constantly misappropriated trust moneys for his own use by funding his personal expenses, in particular his housing loan repayments and on a number of occasions by depositing cheques representing Trust moneys in payment to his Visa account with the ANZ Bank. Trust moneys have been deposited by Mr Ellis to the ANZ account at 96 Haldon Street Lakemba with large amounts of cash from his other business activities, which are then drawn and deposited into the official Office account described as "Loans from Perry Ellis." 39 The Society in particularising this part of the complaint relied on the material in relation to: (a) The Manomohan matters, particularly where Trust moneys were deposited into the Practitioner's ANZ Overdraft account which was overdrawn, (b) The Borges sale to Ali where another payment of Trust moneys to the same overdrawn personal account was established; (c) The matters of Calaizis and Halpin/Fry where in both matters Trust moneys were paid to the credit of the ANZ Visa account of Mr Ellis. These Visa Card misappropriations of Trust moneys were $7,192.00 in the Calaizis transaction and $4,899.00 in the Halpin/Fry matter. 40 The evidence relied upon has already been detailed and the Tribunal accepts that evidence and finds that wilful misappropriation is clearly established. The misappropriation is calculated and disgraceful and constitutes most serious professional misconduct. The third group of breaches of section 61 of the Act alleged 41 The third basis of wilful contravention of Section 61 of the Act alleged relates to deposits into an account (particularised as being the ANZ Overdraft Account or the official Office Account of the Practitioner) other than a trust account of trust moneys received by the Practitioner on behalf of clients and others. The official Office Account is the Office Account of the firm Perry Ellis & Associates, National Australia Bank, Broadway. The ANZ Overdraft Account is the Practitioner's account at ANZ Bank 96 Haldon Street, Lakemba. 42 Ms Sayer has given general evidence of deposits of this nature by the Practitioner and from her report the Society has particularised payments in eleven matters on which the evidence has already been detailed. These are the matters of: Manomohan Azrak and Vitiello Christianson and Miller Aliano O'Hara Yi Barry Tudor Choong Beilby Lie and Sim 43 In addition, under this heading the matter of Kotrotsios is particularised. In that matter once more the Practitioner acted on the purchase and for the mortgagor and the Advance Bank as mortgagee on a mortgage advance. A cheque provided by the purchaser for $7,472.00 to cover stamp duty was deposited to the Practitioner's account at the ANZ Bank Lakemba on 18 January 1996. The Receiver's Title search disclosed that stamp duty was paid by the Practitioner on 13 March 1996 and the documents subsequently lodged for registration by the solicitors for Advance Bank. Mr Kotrotsios informed the Receiver that he had been approached by Mr Ellis on or about 13 March 1996 and told that his secretary had lost the copy of the stamp duty cheque which the Law Society required for audit purposes. Mr Ellis persuaded Mr Kotrotsios to go to Advance Bank where Mr Ellis deposited a cheque into Mr Kotrotsios' account in return for another cheque obtained by that client payable to the Stamp Duties Office. 44 The evidence of these breaches is clear and the Tribunal is satisfied that the complaints are properly established and constitute professional misconduct of a most serious nature. The fourth and fifth groups of breaches of section 61 alleged 45 The two further breaches alleged of section 61 namely a separate failure to account to Mr and Mrs Aliano for interest accrued on Trust moneys and the intermingling of Trust moneys with the Practitioner's personal moneys in his ANZ Overdraft account and the Practitioner's official office account. The evidence including the copy of the Practitioner's Bank Statement from Advance Bank clearly establishes the failure to account for the net interest of $116.60 to Mr and Mrs Aliano. The failure to account is additional to the failure to account for $6,613.60 being moneys withdrawn from the Advance Bank account by the Practitioner and deposited to his office account at National Bank where it was recorded on the deposit slip as "P. Ellis – loan to Firm". The Tribunal finds the allegation established and that it constitutes professional misconduct. 46 The evidence of the intermingling by the Practitioner of trust moneys with his personal moneys has been referred to in numerous instances already in this decision. This material satisfies the Tribunal that the ground is established and the Tribunal finds that this intermingling constitutes professional misconduct. This, again, is wilful serious and systematic misconduct. The second ground of complaint - wilful contravention of section 62 47 The particulars in the information allege that the Practitioner deposited moneys into a personal account (namely the ANZ Overdraft account) in respect of which no records were kept by him, in a manner enabling them to be conveniently and properly audited, or at all, showing the true position in relation to moneys received by him on behalf of other persons. The monies referred to are clearly trust moneys. The Society relied upon the evidence of Ms Sayer and material in relation to a transaction involving Mr and Mrs Ryan. This transaction has not previously been referred to in this decision. 48 In her oral evidence at the hearing Ms Sayer said in relation to the Practitioner's Account at the ANZ Bank, Lakemba: "Perry Ellis until this day has not admitted to me of the existence of that account, he denied there was an account. I was seeking the records and eventually spending a lot of time and it was an expensive exercise. I obtained all the statements and copies of bank cheques, deposit slips to entirely reconstruct that account and that was an expense and caused considerable delay because of the lack of co-operation on the part of the solicitor." 49 In her reports, Ms Sayer also gave evidence of requesting the provision of proper records in relation to accounts from Mr Ellis and the solicitor's written reply referred instead to a separate account being a reducible loan account at ANZ Bankstown. He stated "I have not kept past records on this account because I had no need of them." 50 Subsequently, Ms Sayer by letter referred again to the ANZ Bank at Lakemba but the records were not forthcoming from Mr Ellis and the Receiver was left to obtain records to endeavour to reconstruct the records of this account. 51 The evidence of Ms Sayer is that the stamp duty paid on behalf of Mr and Mrs Ryan was $12,383.00. A cheque of $12,590.00 was deposited to the credit of the personal account of Perry Ellis at ANZ Bank Lakemba on 24 February 1995 which Ms Sayer contends may have been a cheque to cover the stamp duty for Mr and Mrs Ryan. The report further states that a cheque for $4,645.00 from another client (Ms Moore) was on 29 September 1995 paid to the Office of State Revenue with a cheque from the Practitioner's ANZ Lakemba account for $7,738.00 to pay the Ryan stamp duty. 52 Although used for trust moneys, the ANZ account was not a Trust account and no records of the account were maintained by Mr Ellis. The account could not be audited. The evidence is clear and the Tribunal is satisfied that the actions of the Practitioner were wilful, the breach has been established and that it constitutes professional misconduct. The third ground of complaint 53 The third ground of complaint is that the Practitioner wilfully failed to comply with professional obligations to submit documents in his possession custody or control for a timely assessment and payment of stamp duty. 54 This ground is particularised by reference to the wilful character of the solicitor's failure to stamp documents, demonstrated by his misappropriation for his own benefit of trust moneys provided for that purpose. The evidence relied upon is that given by Ms Sayer in two of her reports together with the specific evidence to which reference has already been made in relation to the matters of Manomohan, Azrak and Vitiello, Christianson and Millar, Rattan, Moore, Calaizis, Halpin and Fry, Barry, Tudor, Choong, Ryan and Tritsaris, together with an additional matter of Cotsovolos not previously referred to. 55 Mr and Mrs Cotsovolos instructed the Practitioner about November 1991 to transfer the titles to three properties owned by them. Each of three nominated children were to receive one property. An Office Account receipt was found by the Receiver for the payment of $6,190.00 stamp duty to Perry Ellis & Associates on 1 November 1991 and this was identified by Ms Sayer as relating to the transfer of a property to Theodora Cotsovolos. Mr and Mrs Cotsovolos advised the Receiver that they had paid all moneys for stamp duty and valuations on each property but a search of the titles made following an enquiry by Mr and Mrs Cotsovolos in late August 1996 indicated that only one of the three transfers, that being to their son George, had been registered, while the other two properties remained in the names of the parents. Subsequently the Practitioner delivered to his clients the documents required after having had the transfer stamped and registered on 3 September 1996. The transfers were lodged for stamping by Mr Ellis under the name of Titleco Pty Limited and recorded at the Stamp Duties Office as dated 30 August 1996, although the registered transfers are dated 15 June 1993. 56 None of the evidence in the Cotsovolos matter or, indeed, the other twelve matters already referred to, is challenged by the Practitioner. There is clearly a consistent pattern of devious and dishonest behaviour by the Practitioner. The Tribunal is satisfied that his wrongful actions were wilful. There is no other logical explanation to this behaviour which the Tribunal is quite satisfied is established and his conduct constitutes serious professional misconduct. The fourth ground of complaint - gross and dishonest neglect, incompetence and delay 57 The particulars of this ground came under six categories. 58 The first count related to the facts and circumstances detailed in the thirteen separate transactions referred to in the previous ground of complaint in that, despite having received Trust moneys for payment of stamp duty, the Practitioner wilfully failed to submit to stampable documents for a timely assessment and payment of duty. Based on the facts already detailed in the thirteen matters the Tribunal finds this count established and that the behaviour of the Practitioner constitutes professional misconduct. 59 The second matter particularised is that the Practitioner wilfully failed to register title and security documents within a reasonable time of the completion of conveyancing transactions in which he acted as a solicitor. The particulars relied on include the matters of Manomohan, Azrak and Vitiello, Christianson and Millar, Calaizis, Halpin and Fry, Aliano, O'Hara, Yi, Barry, Tudor, Choong, Bielby, Lie and Sim, Ryan, and Tritsaris. The relevant evidence in these matters has already been detailed in this decision. In addition the Practitioner's conduct in the matters of Galimi lease to Aiello and Cohen purchase were relied upon by the Society. 60 The Practitioner acted for Galimi as lessors of shop premises to Aiello. On 19 February 1996 two cheques were forwarded to the Practitioner by the solicitors for the lessee, the first in payment of the Practitioner's costs, which was deposited to the Office Account on 21 February 1996 and the second cheque for $854.89 stamp duty. The Receiver caused a search of title to be carried out which showed that, as at 20 September 1996, no lease to Aiello had been registered and as at the date of her report of 25 March 1997. The Receiver had not succeeded in obtaining the lease documents from the Practitioner, nor had she been able to trace the cheque paid to the Practitioner for stamp duty. 61 The Practitioner acted for Mr Cohen on a purchase and for both parties on a mortgage loan from Advance Bank. The evidence of the Receiver established: (a) contracts were exchanged on 23 March 1995. (b) The Practitioner's costs and disbursements amounting to $2,200.00 were paid to his office account at National Australia Bank Broadway on 4 May 1995. (c) Mr Cohen paid the Practitioner the sum of $7,765.00 to cover stamp duty and the Receiver had been unsuccessful in efforts to trace that sum as at the date of her second report on 22 April 1997. (d) The matter was settled on 5 May 1995. (e) On 18 March 1997 the Practitioner lodged the documents for stamping, the application being in the name of "N. Murphy of 1160 Forest Road, Hurstville". Stamp Office records show the execution date of the contract and transfer as 2 February 1997 and the Bank mortgage as 5 March 1997. (f) The transfer and mortgage were lodged by the Practitioner at the Land Titles Office and were both dated 5 May 1995. 62 The Tribunal is satisfied that the Practitioner's conduct was wilful and this is established by the evidence of the many matters particularised and also that his failure to register title and security documents within a reasonable time constitutes gross neglect, incompetence and delay. Indeed, his behaviour was blatantly dishonest and wilfully so. In relation to these matters the Tribunal finds the Practitioner has been guilty of professional misconduct. 63 The third aspect of the fourth ground of complaint is that in acting for both the Advance Bank as lender and borrowers from the Bank in conveyancing matters the Practitioner preferred his own interests and wilfully failed to protect the interests of each and all of his clients. The Society relies upon the evidence of Ms Sayer and the documents produced by her. The particulars refer to the facts in the following : Manomohan Christianson and Millar Calaizis Halpin and Fry Aliano O'Hara Yi Barry Tudor Choong Bielby Lie and Sim Tritsaris 64 The Tribunal has already detailed the evidence in these matters and finds the preference and wilful failure alleged to be established and finds that this conduct also constitutes professional misconduct. 65 The fourth aspect of the fourth ground is the allegation that the Practitioner wilfully failed to keep in safe custody or otherwise deal properly with title deeds and mortgages relating to transactions in which he acted for both the Advance Bank as lender and borrowers from the bank 66 The evidence of Ms Sayer was that in several cases subsequent to her appointment as Receiver Mr Ellis, to whom requests had been made for files and documents said to be missing, had stamped and registered the documents and delivered them direct to the client concerned. She further states: "On each occasion Mr Ellis denied that he held the documents and has stated repeatedly since the commencement of the receivership that he does not hold any files or documents and that he has returned all files relating to Advance Bank matters to the Advance Bank and all other files to the client concerned. This is not the case as I have received a printed request both from Advance Bank and from clients for missing files and title documents:." Subsequently her first report of 25 March 1997 continues: "My further enquiries and those carried out by the Advance Bank disclose there are still in excess of thirty known title deeds and mortgages which are missing and obviously in the possession of Perry Ellis. My searches of the relevant properties disclose that they remain in the name of the vendor and have not been transferred to the purchaser client for whom Mr Ellis acted and, where applicable, mortgages in favour of the Advance Bank have not been registered. The Advance Bank does not hold any security in relation to any advance on these properties at this stage." 67 Specifically the Society relied upon the evidence in the following matters which has been outlined already: Aliano O'Hara Yi Bielby Lie and Sim Ryan 68 The Tribunal accepts the evidence which clearly establishes the complaints as particularised and in the circumstances finds that the Practitioner's actions were wilful and amount to professional misconduct. 69 The fifth particular of the fourth ground is the complaint that the Practitioner wilfully failed to hold in a trust account deposit moneys held by him as stakeholder in a transaction where he acted for both the vendors (Borges) and the purchaser (Ali). 70 The evidence of Ms Sayer was that in the Borges/Ali matter a part of the deposit of $9,700.00 was paid to the personal account entitled "Perry Ellis & Associates" at ANZ Bank Lakemba. This was not a trust account and that is perfectly clear from the copies of two cheques drawn on the account in part disbursement of those moneys. The facts relied upon are established to the satisfaction of the Tribunal as is the allegation that the actions of the Practitioner were wilful and the Tribunal finds professional misconduct established. 71 The sixth allegation particularised in relation to the fourth ground relates to a personal injury claim by Ms Kokontis. The Society alleges that between November 1993 and 31 May 1996 or thereabouts the Practitioner failed to act properly or at all on instructions of Ms Kokontis to make a claim for damages for personal injuries against Canterbury Council. 72 The evidence before the Tribunal is that the Practitioner took instructions from the client on or about 3 August 1993 in relation to an accident which occurred on 8 September 1992. It was established that the client had contacted the solicitor to enquire of the status of the matter and been informed to the effect: "Oh, hasn't anyone spoken to you yet? The Council should have spoken to you." 73 New solicitors acting for Ms Kokontis spoke to the Practitioner on 16 April 1996 and were advised he would locate the file but "there is not a lot there". The Practitioner informed the Receiver that he was not holding any files and that all files had been returned to the client. The Receiver wrote to Mr Ellis on 24 May 1996 requesting him to deliver various files including the file in this matter. The Receiver was then informed by the client's new solicitors that on 31 May 1996 the Practitioner had left two documents on the doorstep of the client, they being her statutory declaration dated 3 August 1993 concerning the accident which Mr Ellis had witnessed and a letter from the GIO to the Practitioner's firm dated 15 November 1993 requesting information. 74 The evidence before the Tribunal is that, apart from preparing a statutory declaration on 3 August 1993 and writing a letter to the Council, no action was taken by the Practitioner in this matter for over 2 years. The evidence is not challenged by the Practitioner and there is no explanation for his conduct. The evidence is accepted by the Tribunal. The neglect and delay are gross and the conduct of the matter by the Practitioner is grossly incompetent. The denials to the Receiver and the sudden delivery of documents after enquiry to the clients' doorstep are both grossly dishonest. The Tribunal finds that this complaint of professional misconduct is established. 75 The seventh and final matter particularised in relation to the fourth ground of complaint is another delay matter that alleges that between November 1991 and September 1996 or thereabouts the Practitioner failed to carry out, either properly, or at all, instructions of Mr and Mrs Cotsovolos to transfer property to their daughters. The evidence already referred to establishes that the two properties which the Practitioner had been instructed to transfer to the daughters of Mr and Mrs Cotsovolos were not transferred despite the long lapse of time. The evidence is clear and while, of course, there are in these matters other aspects other than the delay issue, the Tribunal finds that the delay issue has been established and that, in the circumstances, it constitutes professional misconduct. The fifth ground of complaint – misleading and deceptive conduct 76 The fifth ground of complaint is that the solicitor wilfully engaged in conduct calculated to mislead or deceive respectively: (a) The Office of State Revenue and the Land Titles Office; (b) The Law Society; (c) His clients; and (d) The Receiver in relation to his conduct to the affairs of his clients and his practice as a solicitor. 77 The particulars in relation to the Office of State Revenue and the Land Titles Office allege wilful conduct calculated to mislead about the true dates of execution of conveyancing documents submitted by the Practitioner for stamping and registration. The evidence relied upon in the particulars was material already detailed in this decision and related to the matters of: Christianson and Millar Moore Halpin and Fry Cotsovolos Barry Tudor Choong Cohen The evidence which has been set out in this decision already establishes the conduct complained of and the Tribunal finds that the conduct was wilful and constitutes professional misconduct. 78 In relation to conduct calculated to mislead the Law Society the particulars relied upon two separate matters. 79 In the first of these, Calaizis, the relevant evidence was in relation to the steps taken by the Practitioner to obtain a further cheque from the client in the course of the Law Society audit which has already been set out above. 80 In the second matter of Kotrotsis, the Practitioner provided the client with his cheque to pay into the client's account in return for a cheque from the client's account in favour of the Stamp Duties Office in the context of a copy cheque being required in the course of the Law Society audit. In both instances, Ms Sayer established that the original stamp duty cheques had been paid improperly by the Practitioner, the Calaizis cheque to his Visa card and the Kotrotsis cheque to his account at the ANZ Bank Lakemba. 81 Both these matters have already been referred to in more detail in this decision. The Tribunal finds the evidence establishes clearly a wilful attempt, not only to mislead, but also to deceive the Law Society and finds that this conduct constitutes serious professional misconduct. 82 The wilful conduct calculated to mislead his clients particularised relates to clients Calaizis, Halpin and Fry which have already been referred to and a new matter of "Cavanagh". The evidence in relation to Ms Calaizis related to the obtaining of a further cheque for stamp duty so that he could produce a copy cheque to the Law Society inspectors where Mr Ellis advised his client that "his girls had forgotten to copy her cheque". 83 In relation to the Halpin and Fry matter, Mr Ellis advised his clients on 2 May 1995 by letter "We confirm that your Certificate of Title is held by Advance Bank pending your discharge of their mortgage". The evidence established that this was not true and that the documents were not stamped and registered until 1 March 1996. 84 In the matter of "Cavanagh" the Practitioner acted for Advance Bank and personally borrowed money from the Bank in the false name of John Cavanagh. The Practitioner failed to disclose to the Bank that he and his brother Dean Ellis were the shareholders and directors of Rawfame Pty Limited, a company involved in a course of transactions between Cavanagh and the Bank. Initially the Practitioner acted for John Cavanagh and the Bank on a $10,000.00 loan. The loan application was witnessed by Perry Ellis. The loan application gave a residential address which did not exist and a postal address which was the PO Box number of the Practitioner. The proceeds of the loan were paid to the personal account of the Practitioner at ANZ Bank Lakemba and three instalment payments on the loan were traced to the Practitioner's Office Account at National Australia Bank Broadway. 85 Subsequently an application was made to Advance Bank for a loan to "John Cavanagh" of $135,000.00 to assist him with the purchase from Rawfame Pty Limited of a home unit at Brighton-le-Sands. Again Perry Ellis witnessed the documents and acted for both parties. The loan sought was approved, subject to repayment of the $10,000.00 Advance Term Loan. The mortgage advance was paid out on 4 December 1995 as follows: Repayment existing "John Cavanagh" loan $9,928.37 Perry Ellis & Associates $9,500.00 Perry Ellis & Associates $104,621.63 Office of State Revenue $10,500.00 Bank's charges $450.00 $135,000.00 86 The cheque for $9,500.00 was deposited to the office account of the Practitioner at the National Bank on 4 December 1995. 87 The cheque for $104,621.63 was paid to a personal account of the Practitioner at ANZ Bank ( though not the account at ANZ, Lakemba which has been frequently referred to in this matter). 88 The cheque in favour of OSR was applied in payment of stamp duty on documents lodged by the Practitioner on behalf of his clients Dario and Capraro in an entirely separate matter. 89 On 2 April 1997 the property on which the advance of $135,000.00 had been obtained was sold by Rawframe Pty Limited to a third party for the sum of $141,000.00. The property was subject to a mortgage from Rawframe Pty Limited to ANZ Bank which was repaid on settlement and the ANZ Bank mortgage discharged. No moneys from the proceeds of sale were paid to clear the indebtedness of "John Cavanagh" to the Advance Bank intended to be secured on the property. 90 Subsequently, after a claim was made on the Fidelity Fund by Advance Bank the Practitioner repaid the loan over the property at Brighton-le-Sands to Advance Bank. 91 The evidence is clear on all three matters of conduct calculated to mislead. Like so much of the misconduct of the Practitioner referred to in this decision his conduct is wilful and, although it may be described as calculated to mislead, this conduct, particularly in the "Cavanagh" matter, displays an extraordinary level of dishonesty and deception in a professional man. The Tribunal accepts the evidence and finds the allegation of professional misconduct established. 92 The fourth matter particularised is that in about December 1995 or January 1996 or thereabouts the solicitor falsely represented to his client, Ms Toni Marsh, that he had filed in the Family Court on her behalf an Application for Dissolution of Marriage pursuant to her instructions given on or about 17 August 1995, when in fact the solicitor had not at the time of his representations filed any such Application. 93 The evidence which is unchallenged and which the Tribunal accepts may be properly summarised as follows: (a) The client instructed the Practitioner in his office to commence an Application for Dissolution on 17 August 1995 in relation to her marriage to "Keith" and was told that the case would be heard early in November 1995. The Practitioner told the client "I will organise for Keith to sign, you won't need to see him or go to Court". (b) On 1 December, Ms Marsh enquired as to progress of the solicitor and was advised by him that there had been delays in Court processing of divorce papers but that he was sure the case would be heard soon. (c) On 18 December 1995 the client was told by the solicitor "The Courts are often slow at this time of the year, but it shouldn't take too much longer". (d) On 9 January 1996 the Practitioner told the client "The clerk must have forgotten to file the papers with the Courts". (e) On 15 January 1996 the client phoned the Family Court and then informed the Practitioner that the Court had advised her that the papers had not been lodged. The Practitioner informed Ms Marsh: "If you really need the divorce so soon a joint application would be faster." (f) The following day, the client was informed by the Solicitor that her husband had signed the papers and on 18 January 1996 she was informed by the Court that the Application had been filed and would be heard on 20 February 1996. (g) The client attended the Family Court on 20 February 1996 but the Solicitor did not attend. The matter was adjourned to 22 February 1996 The Solicitor did not attend the Court personally on 22 February 1996 but did telephone to indicate that he would send another solicitor on his behalf and a Decree Nisi was granted and the time for the decree to become absolute was shortened. 94 The Tribunal is satisfied the evidence establishes that the solicitor on more than one occasion misled the client as to the progress of the proceedings and misled her into believing that the Application for Dissolution had been filed, when in fact this was not the case. 95 Some of the separate acts of the Practitioner in this matter may constitute by themselves unsatisfactory professional conduct. The Tribunal finds that the totality the Practitioner's conduct in this matter involves a substantial and consistent failure to meet reasonable standards of competence and diligence and accordingly the Tribunal is satisfied that professional misconduct has been established on this count also. 96 The final allegation made in support of the fifth ground is that the Practitioner wilfully engaged in conduct calculated to mislead the Receiver about his possession of records relating to the affairs of his clients. The Society relied on the matters of Peroy and Kokontis. 97 In the first of these matters, the Practitioner acted for the lessors of commercial premises in relation to a lease. The lessee's solicitors provided the Practitioner with cheques in payment of registration fees and his costs in a letter of 14 March 1996 and a cheque for stamp duty of $361.55 on 13 May 1996. 98 When enquiries as to the whereabouts of the lease were raised Mr Ellis informed the Receiver in June 1996 that the file had been delivered to his client. The client Mr Peroy who was the lessor advised the Receiver , that he did not have the file and was unaware as to whether the lease had been stamped or registered. The Receiver's searches disclosed that the lease was stamped on 9 July 1996 and lodged then for registration. The lodging party shown on the Land Titles lodgement was shown as the client who informed the Receiver that he did not stamp or register the lease. The Stamp Office records showed that the lease was lodged for stamping by Titleco Pty Limited, which is the company used by the Practitioner for other lodgements already referred to. The Tribunal finds that the conduct of the Practitioner was devious and deceptive and his statements were clearly calculated to mislead the Receiver. 99 Similarly the response of Mr Ellis to the Receiver's letter of 24 May 1996 in relation to the file of Kokontis already detailed in this decision and then the delivery of two documents to the client's doorstep on 31 May 1996 leads the Tribunal inevitably to the conclusion that the Practitioner's response was wilfully misleading and intended to deceive the Receiver. The Tribunal finds the misconduct established was wilful, is in breach of his obligations under the Act and falls within the long accepted common law definition of professional misconduct in Allinson -v- The General Council of Medical Education and Registration 1894 (1QB750) at 763 "in his conduct the Practitioner in pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency". The complaint of professional misconduct is accordingly established in relation to this count. The sixth ground of complaint – obstruction of Receiver 100 The sixth ground of the complaint alleges that the Practitioner wilfully obstructed hindered and delayed the Receiver in the performance of her duties as a Receiver appointed by the Supreme Court of New South Wales pursuant to section 92 of the Act. 101 The Society relied firstly on evidence of the appointment which was tendered. The evidence satisfied the Tribunal that the Practitioner had failed to confirm to the Receiver his control over the account and deliver to the Receiver records relating to his ANZ Overdraft Account. The evidence on this aspect has already been dealt with. 102 In addition the evidence already detailed established as further alleged by the Society that the Practitioner failed in his obligation to assist the Receiver and to comply with orders of the Court in relation to the Receivership. 103 Specifically, the evidence of Ms Sayer supports the particularised complaints of the Practitioner's wilful failure to comply with requests to deliver receivable property to her, wilful failure to comply with requests by the Receiver for information concerning receivable property and wilful concealment of receivable property and wilful attempts to keep receivable property out of the Receiver's possession. The evidence of this conduct is very clear from the facts already established and detailed in this decision. The Tribunal accepts Ms Sayer's uncontested evidence on these matters and finds that the matters complained of have been established and constitute professional misconduct. The seventh ground of complaint – failure to appear in Court 104 The final ground of complaint is that the Practitioner failed to appear in the Family Court of Australia on behalf of Ms Toni Marsh for whom he had been instructed to appear. The particulars refer to of the Practitioner's failure to appear " in or about" 20 February 1996 and further claims that that failure was grossly negligent in the light of his earlier delays and misrepresentations. The Tribunal finds that the failure to attend the hearing on 20 February 1996 has been adequately dealt with in the findings on the fourth count of the fifth ground of complaint. The failure to appear in Court is part of a series of events which together constitute the professional misconduct on which the Tribunal has ruled. 105 There was one failure to attend a hearing which has been dealt with and for the second hearing the Practitioner advised the client that he would have an agent attend and there is no suggestion that the agent did not attend. In the circumstances the Tribunal is not satisfied that this one instance of failing to attend the hearing on 20 February 1996 can properly be found on its own to be professional misconduct. 106 The Particulars seek to rely on his delays and his misrepresentations to Ms Marsh to establish a fresh ground of professional misconduct in his failure to appear in Court on one occasion. The Tribunal finds that that failure has already been adequately dealt with in the earlier account in which a finding of professional misconduct has been made. The seventh ground is accordingly dismissed. 107 The Tribunal has made findings on a large number of complaints of professional misconduct. Detailed findings on matters put to the Tribunal are necessary because of the possibility that some time in the future the Practitioner might apply for re-admission or for permission to work as a law clerk. (see Bridges -v- The Law Society of NSW [1983] 2NSWLR 361). The Practitioner has conceded there is an inevitability about the final outcome of this matter. The professional misconduct of the solicitor covers a wide range of breaches of acceptable conduct both by statute and at common law. The many wilful acts of misconduct can only be described as gross and appalling and totally unacceptable in a member of an honourable profession. The Tribunal accordingly directs that his name be removed from the roll of solicitors. 108 The Society was on notice from prior to the filing of this information that the proceedings would not be defended. Correspondence from Mr Williams and the reply confirmed this. The evidence involved the presentation of three affidavits, the tender of some correspondence, oral evidence from the Receiver and submissions. The bulk of the material is comprised in a large file of documents and reports which was tendered and thereafter left for the Tribunal to read outside of the actual hearing. The presentation of what was a clear and straightforward undefended matter and the short time involved in the hearing was not, in the view of the Tribunal, such that required the extra skills of senior counsel. The Tribunal appreciated the clear presentation that senior counsel provided but finds that the matter could quite properly have been dealt with by a suitable junior counsel. Accordingly, the Tribunal has decided that while a costs order should be made, it should not extend to counsel's fees beyond those normally payable for competent junior counsel. 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