Pending Appeal : CITATION: Law Society of New South Wales -v- Stanoevski [2003] NSWADT 77 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Liljana Stanoevski FILE NUMBER: 022010 HEARING DATES: 9, 10, 11, 12, 13 December 2002 SUBMISSIONS CLOSED: 12/13/2002 DATE OF DECISION: 04/17/2003 BEFORE: Vass CB -Judicial Member; Officer D QC - Judicial Member; Bubniuk L - Member APPLICATION: Professional Misconduct - forgery - Professional Misconduct - mislead Court/Tribunal - Professional Misconduct - mislead Law Society/Bar Association/LSC MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 The Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408 CASES CITED: Johns v. The Law Society of New South Wales (1982) 2 NSWLR 1 ex parte Lenehan ((1948) 77 CLR 403 APPLICANT REPRESENTATION: I Wales SC, Barrister RESPONDENT G Scragg, Barrister ORDERS: 1. That the name of Liljana Stanoevski be removed from the roll of legal practitioners in New South Wales.; 2. That Liljana Stanoevski pay the costs of the Law Society of NSW as agreed or assessed. Background 1 Liljana Stanoevski (the Solicitor), was admitted as a Solicitor in New South Wales on 10 July 1981 and held a Practising Certificate until 30 June 1994. A further Practising Certificate issued to the Solicitor on 13 December 2001. 2 On 22 June 1993, Gibson Owen was appointed investigator of the Solicitor's affairs pursuant to s.55 of the Legal Profession Act 1987. 3 As a result of the Society's investigation of various complaints the Society resolved to refer various grounds of complaint to the Tribunal as set out in the Information and the further particulars. The process included resolutions pursuant to s.137(2) of the Legal Profession Act 1987. Some Issues 4 The Information contains ten paragraphs and associated particulars. Two of the grounds can be dealt with shortly. 5 Ground 9 in the Information alleged that the Solicitor falsely attested the signatures of Jason Nash and John McGruer as lessors on a lease dated 10 May 1990 in respect of part of the premises at 170 Waldron Road, Chester Hill. At the hearing and on 10 December 2002, that ground was formally abandoned by the Appellant and in the circumstances the Tribunal formally dismisses that ground of complaint. 6 Ground 3 in the Information alleges that the Solicitor wilfully delayed an accounting to Penka Srbinovska for the amount of $30,686.36 for a period of approximately four and a half months from 15 October 1993 when the Solicitor served an itemised Solicitor/client bill of costs until 1 March 1994 when the Solicitor refunded the amount. The particulars of the complaint were admitted by the Solicitor, but it was alleged that there was no wilful delay in accounting and nothing which would constitute misconduct. What occurred was that the Solicitor on 18 February 1991 debited her trust account with various sums totalling $188,525.08 and included in that amount were her profit costs, counsel's fees and disbursements and various other sums. On 15 October 1993, the Solicitor prepared or had prepared an itemised Solicitor/client bill of costs in the sum of $157,838.72 and it was not until the 1 March 1994 that the Solicitor forwarded to the new Solicitors for the client the sum of $30,686.36 representing the difference between the sum of $188,525.08 and the sum of $157,838.72. The evidence establishes that the Solicitor did not have the sum of $30,686.36 and needed to borrow it from her sister in order to effect the repayment. 7 While the delay was unfortunate, the Tribunal is not prepared to find that it was wilful or that it relevantly involved any misconduct. Counsel for the Law Society frankly conceded, and in the Tribunal's view rightly conceded, that this ground of complaint was, in the circumstances, difficult to maintain. Having considered the whole of the evidence, including the Solicitor's explanation, the Tribunal is not prepared to find that this ground of complaint has been established and it is dismissed. The Estate of Florence Evelyn Marks 8 The complaint concerning this estate is twofold. The first complaint is that the Solicitor was guilty of undue delay in respect of her handling of the estate, and secondly, that she attempted to mislead the Law Society in relation to certain correspondence she had with it concerning the estate. 9 The Solicitor in the reply filed by her acknowledges that she was guilty of undue delay in respect of her handling of the estate and concedes that it amounts to unsatisfactory professional conduct though denying it amounts to professional misconduct. The Tribunal is of the opinion that the concessions made were clearly correct. 10 By Will dated 29 July 1975, Florence Evelyn Marks appointed her son, Michael Marks, and Norma Mechtler, as executors and trustees provided that her husband predecease her. Mrs Marks died on 24 April 1991 and the Solicitor received instructions from Michael Marks on 7 May 1991 to apply for probate. This involved, in the circumstances, Mrs Mechtler deciding to renounce as an executor of the Will. The Solicitor was aware as at 23 May 1991 that Mrs Mechtler was renouncing probate. Notwithstanding this, the particulars which are admitted by the Solicitor, clearly establish, in the Tribunal's opinion, that the Solicitor seems to have had an inability to handle, in an expeditious manner, what was a straightforward application for probate where one of the executors had renounced. It was not until 18 June 1992 that probate was granted. 11 The Tribunal is of the opinion that the Solicitor's conduct in the handling of the Estate of Florence Marks 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. The Tribunal is not prepared to find that in this respect the Solicitor's conduct amounts to professional misconduct. If it were not for the orders which the Tribunal considers ought ultimately to be made, the Tribunal would have reprimanded the Solicitor for this aspect of the complaint. 12 The second aspect of the complaint cannot so readily be disposed of. When the Law Society was investigating the complaint it corresponded with the Solicitor. By letter dated 29 January 1993 the Solicitor asserted that Mrs Mechtler "refused to sign the probate papers". The said letter also asserted that "Unfortunately Mrs Metchler took some considerable time to execute the paper". These matters were being put forward to the Law Society in an attempted explanation for the delay. The facts are that an Affidavit of Revocation of Appointment as Executor was forwarded to Mrs Mechtler on 5 November 1991 and it was sworn by her on 20 November 1991 and returned to the Solicitor and, although inappropriate in form, was filed with the Supreme Court on the 6 December 1991. 13 In a second letter to the Law Society on 12 March 1993 the Solicitor asserted that it was "some considerable time" before Mrs Mechtler returned the sworn affidavit to her office. The above facts speak for themselves. 14 The Solicitor in her reply to the Information concedes that the letters were not accurate. She further says, in that reply, that in providing the explanation of 29 March 1993 to the Society, she sought to convey that Mrs Mechtler was not prepared to act as executrix and that the delay was attributable to Mrs Metchler in executing the Affidavit of Renunciation whereas in fact the delay occurred due to the Solicitor's inexperience in respect of probate work. 15 By letter dated 5 October 1994, the Solicitor's then Solicitors, Lloyd and Lloyd, advised the Law Society that she admitted that her conduct in relation to the estate was unsatisfactory. In that letter, she unreservedly apologised to Mr Marks and enclosed a cheque by way of refund of the costs paid to her in respect of the work done relating to the estate. More significantly however, in the Tribunal's opinion, was the statement in that letter that the solicitor completely misconceived her responsibilities in responding to inquiries made of her by the Law Society and that when she wrote her letters in January and March 1993 she erroneously believed that it would be in her interest to adopt an adversarial stance with regard to the complaints to the Society by Mr Marks and the Society's inquiries of her arising out of such complaints. It was stated that she "now appreciates that she had a duty to co-operate with the Society". 16 When expressly pressed by the Law Society about the matter the Solicitor responded by letter dated 2 December 1994 (from her solicitors), and did not concede that she had deliberately attempted to mislead the Society. 17 Ultimately in her affidavit filed on 5 August 2002, the Solicitor acknowledged that the delay in respect of the estate was "wholly" attributable to herself and not in any way attributable to Mrs Mechtler and conceded that her response to the Law Society was misleading. 18 In the Tribunal's opinion, the Solicitor's correspondence with the Law Society clearly was misleading and in the Tribunal's opinion so much is apparent from the wording of the correspondence. 19 It is a matter, in the Tribunal's opinion, of grave concern that notwithstanding her ultimate concession, in her said affidavit, the Solicitor when giving evidence to this Tribunal would not admit that she was intentionally attempting to mislead the Law Society. In her evidence, she was, in the Tribunal's opinion, prevaricating and evasive rather than being openly truthful and frank. She demonstrated, in this respect, no real contrition for the attitude which she had adopted in her correspondence answering the Law Society's inquiries and she did not demonstrate any real understanding that what she had done, in that respect, was wrongful, misleading and evidently so. 20 The Tribunal finds this aspect of the complaint established. To attempt to mislead the Law Society in this manner is, in the Tribunal's opinion, professional misconduct. Buldioski – the allegations 21 The complaint in relation to this matter is that the Solicitor forged the signatures of her clients Stanko Buldioski and Biljana Buldioski on consent orders dated September 1991 and that she falsely attested those signatures on those consent orders. It is further alleged that the Solicitor misled or attempted to mislead the Family Court by filing those consent orders purportedly signed by her clients with the Court knowing that the Court would rely on them as being documents appropriately executed. It is further alleged that the Solicitor misled or endeavoured to mislead the Law Society in her letters to the Law Society when she stated in substance that both Stanko Buldioski and his wife came to her office and executed the documents before her. 22 The consent orders related to a property settlement between the husband and wife. There is no suggestion, by anyone, that the orders did not accurately reflect the agreement of the parties for the division of their assets. The orders correctly reflected the instructions given to the Solicitor. Rather, it is alleged the signatures of the parties were forged by the Solicitor (and signed by the Solicitor as solicitor for the husband) and filed with the Family Court. Buldioski – the evidence 23 Stanko Buldioski says he saw the Solicitor to give instructions and on the first occasion there was a discussion about fees. There is no reason not to accept his version of the conversation in his affidavit to the effect that the agreed sum was $500 but that he could not pay it off straight away and an agreement was made that he could pay it off slowly when he got his pension. He maintained these matters in his oral evidence. This first occasion was 10 September 1991. The Solicitor's file note confirms this date and supports the proposition (contrary to the suggestion in cross-examination) that he attended alone without his wife. 24 Stanko Buldioski says in his affidavit that he went back a second time to see the Solicitor to sign some papers. On that occasion he says he signed the application initiating the proceedings. He acknowledges that the signature on that document is his. He says in his affidavit that he cannot recall whether he signed other papers. 25 The Tribunal finds that on this second occasion it is more probable that he was accompanied by his wife. Mr. Buldioski in his oral evidence believes that it was the second occasion when he went with his wife and his recollection is that he only went with her once. 26 This conclusion is supported by Mrs Buldioski's statement dated 30 August 1992 which is to the effect that when she and her husband were in the solicitor's office "ready to sign the consent orders" there was a conversation concerning the $500 and how it could be paid off by instalments. (Underlining added) 27 There were annexed to Mr Buldioski's affidavit in these proceedings several documents. There was the said application initiating the proceedings which he acknowledges contained his genuine signature. There are various alterations to that document and the evidence does not establish and the Solicitor cannot assist in how those alterations came to be made or when. The Solicitor witnessed the signature on the application. It is dated 25 September 1991. 28 There is then annexed a copy of orders made by the Court on 28 January 1992. Annexed to this document is a document entitled "Consent Orders". That document is sealed with the seal of the Family Court of Australia. It is dated 10 September 1991. The signature purporting to be that of the husband he swears is not his. Mrs Buldioski swears that the signature appearing on that document and purporting to be hers is not hers. It seems clear that the Court order and annexed document were forwarded to Mr Buldioski by the solicitor in February 1992. It was not suggested to either Mr and Mrs Buldioski that their purported signatures were genuine. The Solicitor signed this document as "Solicitor for husband". 29 The next document annexed to Mr Buldioski's affidavit is another copy of the consent orders. Mr. Buldioski swears that the signature purporting to be his in fact is not his on this document and Mrs Buldioski likewise swears that the signature appearing on that document is not hers. Likewise there was no suggestion by anyone that this evidence is wrong. This document is likewise signed by the Solicitor. 30 There is annexed a further copy of the consent orders and both Mr and Mrs Buldioski again depose the signatures are not theirs. On a further set of consent orders which are dated 18 October 1991 there are again signatures and both Mr and Mrs Buldioski have sworn that the signatures on that document do not belong to them respectively. Likewise no suggestion is made and they are likewise signed by the Solicitor. 31 What appears to be the original of the second consent orders referred to above is also to be found in the file produced by the Family Court of Australia. On the basis of the evidence Mr and Mrs Buldioski the signatures there appearing in that file are not theirs. 32 Accordingly on this evidence, which is not in issue, there are four versions of the consent orders. One version is in the file of the Family Court and a copy has that Court's seal on it. That document and the three others have signatures which Mr and Mrs Buldioski swear are not their signatures. There is no suggestion to the contrary. All are signed by the Solicitor as "Solicitor for the Husband". 33 During the course of the cross-examination of Mr Buldioski, Counsel for the Solicitor produced a further version of the consent orders which became document 5 in Exhibit K. Counsel for the Solicitor said and it was accepted that the document had been found in the solicitor's file (which was tendered into evidence). It has the seal of the Family Court of Australia on it. The signature on this document appearing above the word "husband" was photocopied for Counsel for the Solicitor, cut out of the document and then shown to Mr Buldioski (the cut-out signature became Exhibit 3) and Mr Buldioski initially agreed that it was his signature. He later suggested some diffidence about the matter. When shown the whole of document 5 in Exhibit K (from which the cut-out came) Mr Buldioski maintained it was not his signature. Mrs Buldioski says it is not her signature on the document. 34 The Solicitor's file in relation to this matter is, as she acknowledges, incomplete. It appears however that on 10 September 1991, Mr Buldioski attended upon the solicitor and gave instructions for the property settlement. This is the date which was inserted in many of the copies of the consent orders. On 20 September the solicitor wrote to Mr and Mrs Buldioski advising that the papers had been prepared for signature and asking that they make an appointment to sign the documents. There is then a file note dated 25 September recording an attendance on Mr and Mrs Buldioski when the consent orders and property application were signed. This is the date which the property application in fact bears. 35 Notwithstanding suggestions in cross-examination to Mr Buldioski to the contrary, we find that this was the order of events and that on 25 September 1991 Mr Buldioski and Mrs Buldioski may well have signed some form of consent orders. The property application was undoubtedly signed by Mr Buldioski. The Tribunal says "some form of consent orders" because it is not satisfied that any such form has been produced. Indeed the overwhelming and substantially all the evidence is to the contrary. Further the property application which was signed by Mr Buldioski originally referred not to "consent orders" but to "Short Minutes of Proposed Orders" and the Solicitor can offer no explanation for the change. 36 On 26 September the Solicitor forwarded to the Family Court consent orders in triplicate and the property application in triplicate. 37 On 30 September 1991 the Court sent a requisition to the Solicitor returning all the documents unfiled and drawing attention to a notice to the legal profession. A copy of that notice is not in evidence but the Tribunal infers that it is instructions as to the Court's requirements. On 17 October the Solicitor returned in triplicate the property application, Court order and the consent orders. On 21 October the Court again requisitioned that the Solicitor must supply "original + at least four copies of order + consent orders. Must also file a Form 18 by Respondent or an affidavit re proof of signature". On 10 December 1991 the Solicitor returned to the Court the original and four copies of the Court order and the consent orders said to have been signed by both parties and dated 10th September 1991. A property settlement application form in triplicate and a Form 18 were also enclosed. 38 Following a further requisition on 20 December the Solicitor, following a further requisition which related to a correct backsheet for the consent order, returned the documents yet again to the Court for filing. 39 The Court, on 28 January 1992, made orders in accordance with the consent document. 40 A memorandum of transfer dated 24 February 1992 was signed by Mr and Mrs Buldioski to effect the property settlement ordered by the Court. Mr and Mrs Buldioski acknowledge their signatures but they cannot recall when it was signed. Notwithstanding her evidence to the contrary, there are significant indications it may well have been at the time the property application was signed on 25 September 1991 (see, for example, the Solicitor's letter to the Law Society of 20 October 1992). 41 Christopher Anderson – forensic document examiner after requesting certain addition material reported on 14 May 1993 that it was very unlikely that Mr Buldioski signed the consent orders which Mr Buldioski annexed to his affidavit at pages 52 and 54, (the original of 54 being on the Family Court file and annexed to the original of the Court's order as contained in that file). 42 Mr Anderson concluded that Mrs Buldioski did not write the signature purporting to be hers on those two documents. 43 In a further report dated 21 December, Mr Anderson concluded that there is very strong support for the proposition that it was the Solicitor who wrote Mrs Buldioski's signature on the consent orders that appear at page 52 of Mr Buldioski's affidavit. By "very strong support" Mr Anderson meant that the evidence fell "just short of conclusive". 44 There was nothing in the cross-examination of Mr Anderson which, in the Tribunal's opinion, cast any doubt upon the conclusions which he reached. 45 Mr Paul Westward, forensic document examiner, had access to the Family Court file. He was retained by the Solicitor. He has produced no report and has given no evidence in answer to that of Mr Anderson or otherwise. There has been no proffered explanation why this is so. 46 The Solicitor in her affidavit said that at the time she prepared the affidavit she did not have access to her original file. She said that to the best of her recollection the consent orders were signed in her office and she witnessed the signature of Mr Buldioski. She denied that she forged the signature of either the husband or the wife. She had no specific recollection of why the consent orders which were dated 18 October were so dated. She denied forging the signatures of the husband and wife on that document. 47 When giving evidence in chief the Solicitor had very little recollection of the Buldioski matter other than what was self-evident from her file, the requisitions and other letters and notes contained in it. 48 To the extent to which the Solicitor said Mr and Mrs Buldioski would have or did come in and sign the documents at pages 11 and 12 of Mr Anderson's report (pages 52 and 54 of Mr Buldioski's report) the Tribunal rejects that evidence. Having observed the Solicitor give evidence and her demeanour and taking into account the whole of the evidence which she has given, the Tribunal is satisfied that her evidence is substantially a reconstruction rather than a recollection of what occurred. The evidence of Mr and Mrs Buldioski and the evidence of Mr Anderson is to be preferred. The documents were not signed by Mr and Mrs Buldioski. 49 On 20 March 1992 Mr Buldioski rang the Solicitor's office and according to a file note (not in the solicitor's handwriting) complained in effect that the consent order which he had received in the mail from the solicitor's office contained signatures which were not those of him and his wife. Notwithstanding the uniqueness of such an allegation the solicitor maintained that she did not recall receiving the message. The Tribunal does not accept this evidence. It does not accept that the Solicitor has no recollection of a client asserting that the signatures were forged especially where the Solicitor acknowledges that no other such assertion has ever been made to her by a client. 50 The Solicitor has always denied she forged the signatures. Ultimately the Solicitor says she is not sure whether Mr and Mrs Buldioski signed the disputed documents in front of her or whether the documents were brought in already signed. She acknowledged she had never suggested the latter proposition before giving evidence. She suggested in evidence someone in her office may have forged the signatures. No explanation was offered why this may have occurred. 51 The Tribunal concludes from her evidence that it is patently clear that the Solicitor cannot recall in any detail, at all, the signing of any consent order documents or any alterations made to them. She has no independent recollection of what occurred or when. At best her evidence was a reconstruction of what she thought may or should have happened. The Tribunal is unable to place any reliance upon her recollection. 52 Taking into account the whole of the evidence the Tribunal is satisfied to the requisite standard that: (a) the signatures on the disputed documents are not those of Mr and Mrs Buldioski. The Tribunal accepts their evidence and, as far as he examined them, the evidence of Mr Anderson. To the extent that the Solicitor suggests to the contrary, the Tribunal rejects her evidence; (b) the signatures of Mr and Mrs Buldioski on the disputed documents were placed thereon by the Solicitor. Mr Anderson's evidence in respect of the documents he examined, on this aspect, was just short of conclusive. The Tribunal, to the test it is required to adopt, is satisfied. Likewise in respect of the other documents, it is satisfied. No other explanation has been offered but more relevantly the circumstances of the Family Court's requisitions clearly indicate a reason why further signed "consent orders" were required to satisfy its requirements. The Solicitor had the carriage of the matter. On the balance of probabilities the Solicitor forged the signatures to satisfy these requirements. (c) The Solicitor, misled or endeavoured to mislead the Law Society in the said correspondence when she stated that both Mr and Mrs Buldioski came to her office and executed the documents before her. Likewise the legal practitioner falsely attested the signature of Mr Buldioski on the consent orders. While there was no Family Court rule which required the signature to be attested there is no doubt that the Solicitor signed the documents as the Solicitor for the husband to authenticate their execution. That indeed is the explanation for the Solicitor's signature appearing on the documents as set out in the Solicitor's affidavit. (d) At least to the extent that the consent orders appear on the Family Court file and/or bear that Court's stamp, the Solicitor misled or attempted to mislead the Family Court by filing the consent orders bearing the signatures in the circumstances above. The signatures and the purported witnessing of them were put forward to the Court on the basis and for the purpose of the Court acting on the genuineness of them for the purposes of making the necessary orders in the proceedings. No other explanation is conceivable. 53 The Tribunal finds that in respect of each of the findings (b), (c) and (d) above the conduct of the Solicitor is professional misconduct. Counsel for the Solicitor did not suggest that if such facts were found it did not amount to professional misconduct and in the Tribunal's opinion no such suggestion could, in light of the authorities, be made. Jocelyn Rita Fowler The Allegations 54 The allegation is that the Solicitor falsely attested the signature of Mrs Fowler on an Affidavit dated 27 January 1993 which formed part of an answer and cross-application filed in the Family Court on 4 February 1993, on an Affidavit purportedly sworn in the presence of the Solicitor which formed part of a statement of financial circumstances filed in those proceedings and in respect of an Affidavit purportedly sworn by Mrs Fowler in the presence of the Solicitor on 13 April 1993 which formed part of an amended answer and cross-application filed in those proceedings. It is further alleged that the Solicitor misled or attempted to mislead the Family Court by filing those documents. The Evidence 55 Jocelyn Rita Kennedy (previously Fowler) denies that any of the signatures are hers. She says that to be best of her recollection she was not in the office of the Solicitor on 27 January 1993 and did not see the Solicitor on that day and she says that on 13 April 1993 she did not sign the Affidavit bearing that date or swear the same in the presence of the Solicitor. She also noted that the account from the Solicitor had no entry for the 27 January 1993. In evidence before the Tribunal, Mrs Kennedy maintained this position and it was not challenged in any significant way. 56 The Solicitor in her Affidavit says that Mrs Fowler signed the documents and that she, the Solicitor, witnessed her signature. She denies forging Mrs Fowler's signature. 57 Christopher Anderson, forensic document examiner, in a report dated 16 September 1993 expresses the opinion that there is nothing to connect the genuine signatures of Mrs Fowler with those which she says are not hers. There was no expert evidence to the contrary or at all. 58 In chief the Solicitor in each case said that she was not able to say whether or not she saw Mrs Fowler place the signature on the disputed document but she said that she believed it to be the client's signature. She swore that it was possible that when she attested the documents what purported to be the signature of Mrs Fowler was already on the documents. 59 The Solicitor in cross-examination denied that her affidavit was intended to convey that Mrs Fowler signed the document in her presence and that the solicitor then witnessed her signature. The Tribunal rejects this denial. The meaning of the Affidavit is plain. She acknowledged that she did not necessarily actually see Mrs Fowler sign the documents. She denies that she intended by her affidavit to create an incorrect impression. The Tribunal rejects this denial for the same reasons. 60 After what can only be described as the Solicitor prevaricating, being inconsistent and evasive, she ultimately accepted the evidence of Mrs Fowler that it was not her signature on the affidavit of 27 January. She suggested someone in her office may have forged Mrs Fowler's signature but could offer no detail or motive. 61 The Solicitor produced late in the proceedings before the Tribunal and after Mrs Fowler had given evidence, a diary for 1993 which under 27 January has an entry at 2.00 p.m. "Mrs Fowler". The diary has never been produced before in the subject proceedings or referred to in any correspondence with the Law Society or any affidavit by the Solicitor and so far as the Tribunal is aware, it was not produced in earlier criminal proceedings where it may well, on the evidence before the Tribunal, have been relevant. The circumstances of it emerging at the present point of time, has in the Tribunal's view, not been satisfactorily explained. Having seen the Solicitor give evidence and having heard her explanations, the Tribunal is of the opinion that the circumstances of the production of the diary and the entries in it are matters of considerable concern. Those concerns are compounded by the extraordinary evidence of the Solicitor that she did not rely upon it to support the proposition that Mrs Fowler signed the document on 27 January. 62 Taking into account the whole of the evidence the Tribunal is satisfied to the requisite standard that: (a) the said signatures of Mrs Fowler are not hers; (b) the Solicitor falsely attested the said signatures; (c) the Solicitor misled or attempted to mislead the Family Court by filing the said documents with the Court; (d) the conduct (b) and (c) constitutes professional misconduct. Lease – 170 Waldron Road, Chester Hill 63 The allegation is that the Solicitor was guilty of unsatisfactory professional conduct in delaying the handling of a lease in respect of the above property. The Solicitor admits that that is so and that the conduct is unsatisfactory professional conduct. 64 In short, on 6 July 1990 the Solicitor received instructions to prepare a lease for a proposed tenant. The documents were prepared and forwarded to the tenant's Solicitor on 23 July 1990 and returned, duly executed, on 25 October 1990. Thereafter, in the Tribunal's opinion, the correspondence and steps taken by the Solicitor demonstrate that her conduct fell short of the standard of competence and diligence that a member of the public in entitled to expect of a reasonably competent legal practitioner in handling such a straightforward lease transaction. There is no satisfactory explanation of the delay and in the Tribunal's opinion the concession that the conduct amounted to unsatisfactory professional behaviour was clearly correctly made. The Orders to be made 65 The determination of what orders should be made requires an assessment of the seriousness of what was done and the effect of it upon the Solicitor's present fitness to continue to practise. 66 As already stated the Tribunal has found that the Solicitor is guilty of professional misconduct in circumstances where in the Tribunal's opinion that misconduct is of a most serious nature. 67 The relevant principles are stated in the The Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408 at 470 per Giles AJA: "The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practice under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practice do not continue to hold themselves out as fit to practice. But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues whose practice in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrents is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with. " 68 Also, with particular relevance in this case to the passage of time between the conduct complained of, the investigation, and the hearing is the passage from Johns v. The Law Society of New South Wales (1982) 2 NSWLR 1 at 9 per Moffitt, P: " When there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for readmission, namely whether it appears that there is material before the Court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the Court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is. " 69 Guidance is also taken from statements in the majority Judgment in ex parte Lenehan ((1948) 77 CLR 403 at 422,425). 70 Recognition that essentially its jurisdiction in relation to the discipline of solicitors is protective rather than punitive, the critical question for the Tribunal in this case is whether the evidence demonstrates at the present time that the Solicitor is unfit to practice or should be permitted to continue to practice. 71 In the Tribunal's opinion, there can be no doubt but that the findings made as to the Solicitor's conduct would have justified an order that her name be struck from the roll had the complaint been heard and determined soon after the events took place. However, those events took place between 1991 and 1993. 72 The Tribunal has had regard to two medical reports filed on behalf of the Solicitor and her oral evidence concerning a miscarriage which she suffered in August 1991 and the consequential depression which she suffered. She said, and the Tribunal accepts, that she found it really hard to work or to make decisions and that she procrastinated so far as her work was concerned. The Tribunal also has regard to the fact that following the birth of a child in July 1992 the Solicitor suffered stress related complications and marital difficulties. She says and the Tribunal accepts, that in this period she was very depressed. The Tribunal also takes account that in February 1993 the Solicitor suffered a second miscarriage and suffered stress and depression as a result. 73 While the Solicitor undoubtedly was suffering from stress and depression at the time, the Tribunal did not understand either her or her counsel to put that forward as an explanation for her conduct or as a justification for it. The Tribunal does, however, take it into account. 74 The Tribunal also takes into account five affidavits of good fame and character filed on behalf of the Solicitor and the oral evidence of Mr Walsh, solicitor. He expressed the view that notwithstanding the very serious allegations the Solicitor was nevertheless a person of good fame and character and subject to the findings of the Tribunal, should remain a solicitor of the Supreme Court albeit it that she ought to work under supervision for a time because from his experience and observation this would be necessary as she has been out of the workforce as a solicitor for a period of time. 75 As has already been observed, the conduct in which the Solicitor engaged was grave professional misconduct which, by any standard, was disgraceful. As has been found that conduct was not one isolated incident but occurred on a number of occasions and over a period of time. 76 As has been found in relation to the matter of Marks and the matter of Buldioski the Solicitor endeavoured to mislead the Law Society when confronted with the allegations. The affidavit which she filed in these proceedings particularly in relation to Mrs Fowler was also in the Tribunal's opinion misleading and materially so. The Solicitor's oral evidence to this Tribunal has in the Tribunal's opinion been less than frank. As noted above in relation to the Mark's matter, while some concessions were belatedly made, her oral evidence indicates that the Solicitor in relation to that matter and in relation to the other matters where adverse findings have been made has failed to show any contrition at all or any appreciation of the gravity of her conduct. By way of example only she blithely offers as an attempted explanation in the Fowler matter that perhaps the affidavits were signed and brought into her and she then (falsely) attested the document. She puts this forward without compunction or acknowledgement that that sort of conduct is totally unacceptable. 77 The Tribunal is of the opinion that it has been amply demonstrated by the Law Society that the Solicitor is not now a fit and proper person to remain on the roll. To come to any other conclusion would involve, in the Tribunal's opinion a real risk of harm to the public and to the administration of justice in this State. 78 The Tribunal orders that the name of the Solicitor be removed from the roll of legal practitioners and that she pay the costs of the Law Society as agreed or assessed. 79 In the matter of complaints by O'Mara, Nash and McGruer, the Solicitor has agreed to pay the complainants compensation in the sum of $1,500.00, and the Tribunal would expect that sum to be paid within 28 days. If necessary, the Tribunal will make an order but in light of the Solicitor's undertaking to pay it, the Tribunal does not at present consider it necessary to do so. Revised - 24April 2003: Paragraph 49: Corrected last sentence, the phrase "especially were the Solicitor …" changed to "… especially where the Solicitor ..." 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.