Law Society of New South Wales v Ross [2003] NSWADT 204

CITATION: Law Society of New South Wales v Ross [2003] NSWADT 204 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Frances Anne Ross FILE NUMBER: 022020 HEARING DATES: 18/03/2003 SUBMISSIONS CLOSED: 03/18/2003 DATE OF DECISION: 08/28/2003

BEFORE: Barnes M - Judicial Member; Pheils J - Judicial Member; Hayes E - Member APPLICATION: Application for order prohibiting barrister or solicitor from employing specified person (s.48I) MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 The Law Society of NSW v ET [2002] NSWADT 41 CASES CITED: Tracey Luker [1997] NSW LST 19 Law Society of NSW v Edmonds [1999] NSWADT 60 The Council of the Law Society of NSW v Wayne Leslie Mathew Condon (3 November 1997) (LST) APPLICANT REPRESENTATION: D Barton, solicitor RESPONDENT No appearance ORDERS: Pursuant to s.48I the Tribunal prohibits any Barrister or Solicitor (without approval under s.48K of the Act) from employing or paying Frances Anne Ross, (the Respondent) in connection with the Barrister's or Solicitor's Practice.

1 The Council of the Law Society of NSW by Application filed on 19 September 2002 sought an order prohibiting any Barrister or Solicitor (without approval under Section 48K of the Act) from - Employing or paying Frances Anne Ross (the Respondent) in connection with the Barrister's or Solicitor's practice; upon the grounds that: The Respondent misappropriated client monies. 2 The Society relies on Section 48I of the Legal Profession Act 1987, which provides: (1) This section applies to a person who: (a) is not a legal practitioner or interstate legal practitioner, and (b) is or was a clerk to a barrister or solicitor (2) On application by a Council, the Tribunal may make an order prohibiting without approval under section 48K) any barrister or solicitor from employing or paying in connection with his or her practice a specified person to whom this section applies if: (a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with a barrister's or solicitor's practice, or (b) the Tribunal is satisfied that the person has been guilty of conduct which, if the person were a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10. (2A) The prohibition imposed by an order made under this section extends to a prohibition on the employment or payment of the person against whom the order was made in connection with the legal services provided by an incorporated legal practice. (3) An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made. (5) The death of a barrister or solicitor does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a clerk to the barrister or solicitor. 3 This application was supported by a Schedule. 4 Relevantly by Reply filed 8 November 2002 the Respondent made certain damning admissions. 5 For convenience it is noted that the Schedule to the Application provided as follows: The Respondent misappropriated client moneys. In these particulars: 1. At all material times Frances Anne Ross ("the Respondent"), was employed as a clerk by Richard Watson, a legal practitioner who held at all material times a current practising certificate as a solicitor and barrister and who practised as "Watson & Watson, Solicitors" ("the Firm"), at 300 George Street, Sydney. 2. While so employed the Respondent's duties included day to day carriage of conveyancing files relating to the sale strata title units at 29-31 Marlene Crescent, Chullora, NSW, the vendor being a client of the firm named Daniel Culhaci ("the client"). 3. In relation to the conveyance of the units identified in the table below, the Respondent caused directions as to payment to be given to the respective purchasers' solicitors which included directions, which were authorised by neither the legal practitioner nor by the client, to provide certain bank cheques (the "unauthorised cheques") at settlement of the respective transactions. 4. Following receipt of the unauthorised cheques at settlement, the Respondent paid, or caused to be paid, the cheques to the accounts indicated respectively in the table below. 5. The moneys, being the proceeds of the cheques particularised in the table below, were the client's moneys. (Text version of table follows) Conveyance Date of Unauthorised direction Unauthorised direction Unauthorised Cheque deposited To account name Date of deposit (on or about) Culhaci of Unit No. No. 1 to Ishak Facsimile dated 28/10/90 To Borak & Co $2,750.00 in favour of St. George "Frances Ross" St. George 28/10/98 No. 11 to Zammit Facsimile dated 29/9/98 $2,550.00 in favour of Westpac Banking Corporation "Frances Black" Westpac Bank 1/10/98 $3,955.04 in favour of St. George Bank Limited "Frances Ross" St. George 1/10/98 $6,518.14 "Frances Ross" St. George 9/10/98 No. 13 to Cokeker - $3,500.00 Commonwealth Bank Grace Brothers Credit card account 9/10/98 "Betty Medhurst"