Law Society of New South Wales -v- Graham [2004] NSWADT 213

Pending Appeal :

CITATION: Law Society of New South Wales -v- Graham [2004] NSWADT 213 DIVISION: Legal Services Division The Council of the Law Society of New South Wales PARTIES: RESPONDENT Ian Douglas Graham FILE NUMBER: 032032 HEARING DATES: 13/04/2004 & 22/06/2004 SUBMISSIONS CLOSED: 06/22/2004 DATE OF DECISION: 09/29/2004

BEFORE: Brennan JWF - Judicial Member; Fox R - Judicial Member; Costigan M - Non Judicial Member APPLICATION: Professional Misconduct - fail to lodge accountant's report with Law Society MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Allinson -v- General Council of Medical Education & Registration 1840 1QBD750 CASES CITED: Carver -v- The Legal Profession Disciplinary Tribunal & Anor (unreported Supreme Court of NSW 27 September 1991) Kennedy -v- The Council of the Incorporated Law Institute of New South Wales (1939) 13ALJ563 APPLICANT REPRESENTATION: L. Pierotti, solicitor RESPONDENT G Niven, barrister ORDERS: 1. That the Information be dismissed; 2. No order as to costs.

1 By information filed in the Tribunal on 24 December 2003 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 complaints made under Part 10 of the Legal Profession Act 1987 ("the Act") against Ian Douglas Graham ("the Solicitor"), a legal practitioner within the meaning of Section 128 of the Act, the Council claimed that the Solicitor, while practising as a Solicitor, was guilty of professional misconduct on the ground that the Solicitor had wilfully failed to comply with the requirements of Clause 94 (1) of the Legal Professional Regulation 2002. 2 Clause 48 of the Legal Profession Regulation 1994 ("the 1994 Regulation") which was repealed before the date of the conduct which is the subject of the complaint provided as follows: "1. If a solicitor received, held or disbursed money to which Section 61(1) of the Act applies at any time during the year ended 31 March that last preceded an application by the solicitor for the issue or renewal or a Practising Certificate, the solicitor must ensure that, on or before the making of the application, there is lodged with the Law Society an Accountant's Report in respect of: (a) each practice conducted by the solicitor as a sole practitioner; and (b) each firm of which the solicitor was a partner, at any time during that year. 2. The Accountant's Report is to be in or to the effect of Form 5, and is to be prepared by a registered company auditor within the meaning of the Corporations Law. 3. If the Law Society Council so requires, a solicitor must: (a) obtain, and pay for, another report to comply with subclause (2); and (b) forthwith, on its receipt, lodge the report with the Law Society. 4. The Law Society Council may require the report under subclause (3) to be made by a registered company auditor nominated by the Law Society Council. 5. It is sufficient compliance with this clause by a solicitor practising in partnership if one Accountant's Report is lodged for the partnership." 3 The Legal Profession Regulation 1994 was repealed on 1 September 2002 and on that date the Legal Professional Regulation 2002 commenced to have effect. 4 Clause 94 (1) of the Legal Professional Regulation 2002 ("the 2002 Regulation") provides as follows: "1. If a solicitor received, held or disbursed money to which Section 61 (1) of the Act applies at any time during the year ended 31 March that last preceded an application by the solicitor for the issue or the renewal of a practising certificate, the solicitor must ensure that, on or before the making of the application, there is lodged with the Law Society an Accountant's Report in respect of: