Law Society of New South Wales v ET [2003] NSWADT 41

CITATION: Law Society of New South Wales v ET [2003] NSWADT 41 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT ET FILE NUMBER: 022009 HEARING DATES: 21/01/03 SUBMISSIONS CLOSED: 01/21/2003 DATE OF DECISION: 03/07/2003

BEFORE: Nader J QC - ADCJ (Deputy President); Durbach A - Judicial Member; Bennett C - 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 Solicitors Act 1957 (England) Collector of Customs v Agfa-Gevaert Ltd (1996) 61 ALJR 123 CASES CITED: K & S Lake City Freighters Pty Limited v Gordon & Gotch Ltd (1985) 157 CLR 309 Darling Casino Ltd v Casino Control Authority (1997) 71 ALJR 540 APPLICANT REPRESENTATION: D Barton, solicitor RESPONDENT Unrepresented ORDERS: 1 That the application be dismissed; 2 Limited non-publication order; 3 No order as to costs

1 The Council of the Law Society of New South Wales, by application dated 6 March 2003 seeks and order under section 48I of the Legal Profession Act, 1987 (the Act), prohibiting any barrister or solicitor (without approval under section 48K of the Act) from employing or paying ET in connection with the barrister's or solicitor's practice. 2 ET did not appear at the hearing, nor was she represented. We were satisfied that she had been duly served with notice of the date and place of the hearing. We received no communication that might explain her non-appearance. ET was born in 1983 and so was 16 years old at the time of the alleged offence. 3 We have considered carefully the thoughtful and thorough, written and oral, submissions of Mr Barton who appeared for the Council of the Law Society of NSW. However, for reasons which follow, we think that the application fails at the threshold. Therefore, it is unnecessary to consider with any particularity the allegations that are said to warrant the making of the order sought. It is enough to say that it is alleged that on 2 March 2000 ET misappropriated cash in the amount of $1,560.00, being trust moneys within the meaning of s. 61(9) Legal Profession Act when she was employed by the firm of solicitors, Pye Rogers Fairfax & Patterson, and that on the same occasion she wilfully failed to deposit the sum of $2,860.00 to the firm's trust account. It may be said in a general way that ET is alleged to have stolen the money referred to. 4 Section 48I of the Act is in the terms following: 48I Prohibition on employment of certain non-legal clerks (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.