The Legal Services Tribunal of New South Wales CITATION : Peter George Star Carver [1996] NSWLST 12 PARTIES : Peter George Star Carver FILE NUMBER(S) : of 1995 CORAM: Mr J Brennan (Chairman) - Mr R. Clisdell - Mr I. Ferguson Competence and diligence - Professional Misconduct - mislead Court/Tribunal - Professional Misconduct - fail to meet undertaking of Law Society/Bar :- breaches of Trust Account & Controlled Money regulations CATCHWORDS: delay & misleading conduct. LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Law Society of NSW v Foreman 34 NSWLR 408 DATES OF HEARING: Hearing days: 12 & 13 February 1996, 1 & 2 April 1996, 26 & 27 August 1996: Procedural Application 17 May 1996. DATE OF JUDGMENT: 12/23/1996 Mr D Hipsley instructed by Mr L Pierotti for the Law Society of NSW; LEGAL REPRESENTATIVES: Mr R Skiller instructed by Star Carver & Co for the Solicitor JUDGMENT: Solicitor appeared before the Standards Board and was ordered to undertake a course of study and complete certain matters. He was also to be subject to periodic inspections by the Law Society. The Solicitor failed to complete matters as ordered and upon inspection over a period of twelve months a number of other serious matters including breaches of Trust Account & Controlled Money regulations, delay, & misleading conduct were reported to the Society. Most factual matters were admitted and explanations were given. Solicitor misled the Tribunal in giving evidence. Findings of professional misconduct and unsatisfactory conduct. Questions of general competence and fitness to practice considered. Solicitor struck off. Complaint(s) By information filed on 6 October 1994 the Law Society referred to the Tribunal a number of allegations of professional misconduct and unsatisfactory professional conduct against the solicitor. The grounds of complaint are set out later in this determination. During the course of the hearing a further complaint was filed arising out of the evidence the Solicitor gave to the Tribunal alleging that the Solicitor misled or attempted to mislead the Tribunal. Facts & findings The Tribunal had before it a large body of evidence. The Law Society tendered a statutory declaration by Mr Pierotti which contained over 500 pages of annexures including a number of reports by the Law Society investigator Mr Geoffrey Lewis. They also tendered a statutory declaration by a Barrister Mr McManamey. Oral evidence was given by Mr Lewis and Mr McManamey. After certain evidence was given by the Solicitor the Law Society tendered statutory declarations by Paul Nolan, Kylie Griffiths, Patricia Furner and Phyllis Wells. The Solicitor filed a Reply, a Final Reply and gave oral evidence. Two character declarations were tendered on behalf of the Solicitor but these were subject to an admission that the declarants had not seen the detail of the complaints against the Solicitor. In general there was no dispute as to most of the facts contained in the particulars of complaint. For the purposes of the hearing the Law Society and the Solicitor proceeded to lead evidence on only some of the matters set out in the complaint. Mr Lewis gave his evidence substantially from his four reports to the Law Society. He highlighted a number of matters of concern. Mr Lewis was cross examined by Mr Skiller on a number of the matters before the Tribunal but remained unshaken on any material matter. Mr Lewis impressed as a witness of honesty and integrity. Mr Carver gave evidence over a number of days. For reasons that are set forth later in this determination, the Tribunal was not impressed with many aspects of Mr Carver's evidence. Where there is any dispute between the evidence of Mr Lewis and the evidence of Mr Carver, the Tribunal preferred the evidence of Mr Lewis. Professional misconduct Ground 1 The Solicitor failed to comply with the Orders of the Legal Profession Standards Board. Estate McGowan – The Solicitor was ordered by the Standards Board to "complete for no further fee all outstanding matters in respect of the Estate of the late Isobel Margaret Penelope McGowan and provide a statutory declaration to the Complainant to the effect that all such matters have been completed by 31 March 1992." By 31 March 1992 the Solicitor had done little or nothing to advance the administration which was outstanding. By 31 May 1993 the client had distributed moneys in a St George Building Society Account without the Solicitor's assistance. At that time shares in Amcor Ltd were still not transferred into the beneficiary's name. A month later there was some indication that the Solicitor was finally taking steps to transfer the shares and by October the shares were at last transferred and the estate finalised. No statutory declaration has ever been filed as ordered. The Solicitors explanation is that he encountered difficulties with the formalities of the share registry and the loss of share certificates. The Tribunal is not satisfied that these problems could not have been overcome by a diligent approach to these problems and the matter to have been completed in accordance with the Board's order. Faure – The Standards Board ordered the Solicitor to pay Mr & Mrs Faure the sum of $10.00. At the time of Mr Lewis' first inspection in December 1992 (over 12 months after the order was made) the money had not been paid. On 15 March 1993 the Solicitor paid Mr & Mrs Faure $20.00. The Solicitor submits that this was a technical breach only. The Tribunal finds that explanation unacceptable. The failure to immediately comply with this order indicates to the Tribunal either contempt for the Board's order or a degree of careless indifference to that order. The Tribunal finds that Mr Carver failed to comply or unreasonably delayed in complying with the orders of the Standards Board made 16 December 1991. The Tribunal is satisfied that such failures amount to professional misconduct. Ground 2 The Solicitor wilfully contravened Section 61(1) of the Legal Profession Act. Benson – The Solicitor acted for Mrs Benson in relation to a motor vehicle personal injury claim. The matter was settled and the GIO sent a settlement cheque for $24,500.00 to the Solicitor on 3 November 1992. Those moneys were paid into the Solicitor's Office account. On 23 November 1992 the Solicitor paid Mrs Benson $19,000.00, the sum she agreed to accept as a settlement. On 30 December 1992 the GIO paid to the Solicitor $4,700.00 for costs and disbursements. That cheque was also deposited to the Office account even though Mr Lewis who had recently attended the Solicitor's office for an inspection had pointed out to Mr Carver that the Benson settlement moneys had been improperly paid to the office account. Mr Carver showed no understanding that the costs and disbursements were also moneys that should be paid to a Trust Account until a proper accounting was done, the clients authority received and out of pocket expenses, medical expenses and disbursements paid. No receipts were issued for either cheque. No accounting was done until 23 December, 1993 more than 12 months later. The following amounts were then paid from the office account: 9 February 1993 – $1,821.00 to Dr Coorey 29 October 1993 – $180.00 to P Taylor – Barrister 23 December 1993 – $220.00 to P Taylor – Barrister 23 December 1993 – $152.00 to Dr H Stewart 23 December 1993 – $80.00 to Dr W Chung At some stage the Solicitor paid Mr Skiller some money but that sum is not shown in his records. During the time that these moneys were deposited to and remained in the Office account the Solicitor was an undischarged bankrupt. When questioned about the risk to which these moneys (and other moneys which should have been in a trust account or controlled money account) had been put the Solicitor clearly failed to appreciate the effect of Section 116 Bankruptcy Act. His explanation that the moneys were not at risk showed a worrying ignorance and he relied on the fact that the account had always been in credit as a justification for his actions. When asked whether his office account was his asset he gave the following reply "After – after the client's property which is not part of the assets which is there to be distributed amongst the creditors in" (page 180 line 34). He appeared to be confusing a trust account with the office account. Of course Mr Carver DID have client's money in his office account. Unfortunately for the Solicitor, Mr Hipsley established that the account remained in credit only because of moneys not being paid to Doctors and Barristers. Later in evidence he said that he had an arrangement with his Trustee that this account would not be seized or have the proceeds applied to pay his creditors. The Solicitor's explanation for placing the moneys in his office account gave rise to a later complaint of misleading the Tribunal. Mr Carver did not operate a Trust Account. He usually dealt with Trust Moneys by opening a controlled money account. In the case of Mrs Benson he said that he was not able to open a controlled money account because she lived at Londonderry and could not travel to Padstow to open an account. It was Mr Carver's evidence that the client had to accompany him to the Bank to open controlled money accounts. (Transcript page 167 line 16). This was consistent with evidence in chief he gave at page 117 line 28 "The client has to come to the Bank with me so we can open a controlled moneys". Later in cross examination Mr Hipsley asked the Solicitor (page 158 line 28) "Why is it necessary that the client attend with you to open the account?" A. "I have always done it, I always take the client to the bank with me." Biarinec – This also was a matter where Mr Carver acted for a client in a personal injury claim. He received instructions in March 1989. The matter was settled in July 1993 for $8,000.00 inclusive of costs. The client agreed to accept "$3,000.00 clear of any outstanding medical expenses but not clear of any social security payment if any". The settlement cheque made payable to Mr R Biarinec c/- Star Carver & Co was banked to the Solicitor's office account on 27 August 1993. Mr Carver's explanation was that he had asked the NRMA for two cheques, one for $3,000 to the client and the other for $5,000 to his firm. At page 5 of the Final Reply he stated "It was virtually impossible to contact Mr Biarinec, (because of his lifestyle) although many attempts were made; the cheque was banked, and a message left for Mr Biarinec to come to the Solicitor's office. Eventually he turned up, but demanded cash." Other matters contained in the particulars of complaint were the matters of Kwon (moneys for advice from a Barrister banked to the office account for a month before paying Counsel) and Bennett (moneys received from a client for a Family Law settlement banked to the office account). Although it is not suggested that there was any defalcation by the solicitor in any of these matters, there is nothing in any of Mr Carver's explanations that can excuse these blatant and wilful breaches of the Legal Profession Act and Trust Account and Controlled Money Account regulations. In some cases money which was properly payable to other persons remained in Mr Carver's office account for over twelve months. The Tribunal is satisfied that Mr Carver's actions were wilful. The Tribunal makes findings of professional misconduct in relation to this ground of complaint. Ground 3 The Solicitor wilfully contravened Section 61(2) of the Legal Profession Act In each of the matters referred to in Ground 2 above the Solicitor failed to pay monies to the credit of a Trust Account. This ground although initially denied in his reply was eventually conceded by the Solicitor while giving evidence and the Tribunal makes a finding of professional misconduct. Ground 4 Withdrawn. Ground 5 The Solicitor failed to comply with Clauses 10,12,14,21 and 22 of the Trust Account and Controlled Money Regulations. Benson & Kwon – The Solicitor breached Regulation 12(2) in that he failed to issue a receipt. Regulation 14 was breached in that he did not maintain a separate ledger account in relation to the transactions. By failing to open trust account ledgers regulation 21 was breached. No trial balance was prepared breaching regulation 22. These breaches were conceded. The Tribunal is satisfied that these breaches were either reckless or wilful and makes a finding of professional misconduct. Ground 6 The Solicitor delayed unduly in relation to the conduct of clients' matters. The particulars of complaint list a large number of allegations of delay. Evidence was led before the Tribunal of a selection of these matters: Biram – Mr Biram was injured in an MVA on 30 December 1989. Instructions were received by the Solicitor on 20 February 1990. Reports from Albury Hospital and some treating doctors were requested by letters dated 21.2.90. On 26.3.90 Albury Hospital wrote to the Solicitor asking for $55 for the report fee and an authority from the client. The Hospital wrote again asking for compliance with its requirements on 26.7.90. A claim form which should have been lodged within 6 months of the accident was not referred to the client until 19 March 1991. It was sent to the insurance company the next day. On 25.9.92 the Solicitor wrote to the client enclosing an authority and asking for the report fee. On 2.10.92 the authority and clients cheque were sent to the Hospital. The report dated 4.10.91 was received on 30.10.92. The Solicitors explanation for the delay is that Mr Biram was initially admitted to Holbrook Hospital. How this affected his failure to send an authority and cheque for 15 months to Albury Hospital is not explained. The other explanation is that he spoke a form of Creole French. However it is significant that within a week of sending the authority to the client and requesting a cheque, a signed authority and cheque is received by the Solicitor and then forwarded to the Hospital. Borody – Instructions were received in relation to damage to Dr Borody's motor vehicle on 9 March 1989. Between May and September 1989 particulars of the claim were sought by the Australian Government Solicitor (AGS) and supplied by the Solicitor. Dr Borody sought updates from the Solicitor on 26.11.89 and 15.1.90. The AGS sought a response to its request for particulars sent 31.8.89, on 6.2.90. On 17.2.92 the Solicitor sought some instructions from Dr Borody. He received a reply the following day. On 22.6.92 the client sought an update from the Solicitor and Mr Carver replied on 6.7.92 saying he was still investigating the matter. Dr Borody sought a further update on 10.1.93. By 20.10.93 the only additional work on the file was an unsigned and undated Statement of Claim for $16,390. The Solicitor's reply (page 7 Final Reply) to the complaint is "Agreed. This matter has since been settled on 25 October, 1994 ... ..Dr Borody was happy with the result and has since provided the firm with further work." In cross examination Mr Carver agreed that there was a delay of fours years between seeking particulars and filing the statement of claim. Amcha – On 12.10.89 the Solicitor issued a Statement of Claim for unpaid work performed by his client. A Defence and Third Party Notice was filed. On 19.10.90 the defendants wrote to Mr Carver asking whether the plaintiff was proceeding. No reply was made to that request and no action taken up to the time of the last inspection by Mr Lewis in late 1993. The delay is conceded by the Solicitor. Kerr – The solicitor received instructions to act on a personal injury claim for Mrs Kerr in June 1992. On 19 April 1993 the NRMA sought information as to whether or not Mrs Kerr was proceeding. No reply was made to the NRMA and the next entry on the file is a note dated 13.10.93 saying Mrs Kerr had died. Mr Carver denied any delay in his Final Reply stating that there was correspondence between 19.4.93 and 13.10.93. The file was produced at the hearing but Mr Carver was unable to identify any such correspondence. He finally conceded that the Law Society's particulars were correct. Biarinec – This matter has been mentioned earlier. Instructions were received in March 1989. Between 3.5.89 and 18.9.91 no correspondence in apparent in the file. A Statement of Claim was not issued until 12.10.92. The Solicitor's explanation in his Final Reply (page 5) was that the client had no permanent place of abode and resided in his motor vehicle beside the Georges River. Correspondence was forwarded via a friend. However, in cross examination Mr Carver said he left telephone messages for him or saw him in the local shopping centre. He said he had no postal address and had a contact number with a mate. His secretary would have telephoned that person and recorded those calls in the day book. But when the day books were examined no entries relating to Mr Biarinec could be found. There was therefore a lack of any evidence to suggest Mr Carver made any attempt to contact the client for over two years. Other significant allegations of delay alleged by the Law Society include the following: Aravena – a delay of twelve months in forwarding a refund of a rate adjustment to the client after settlement of a conveyancing transaction. Burridge – a delay of over fifteen months in handing over a file after an authority was received from new Solicitors. Clarke – the file shows no action for a period of three years between 1988 and 1991. Th Solicitor says he lost contact with the client. Francois – the Solicitor received a settlement cheque from the Local Court made payable to the client for $206 on 16.10.92. The Solicitor had failed to object to a confession although the client was seeking more than $206. The cheque remained on the file until the Solicitor was preparing his initial response to the Law Society on 23 December 1993. Another cheque (the first being stale) was forwarded to the client with a less than accurate letter stating that the cheque represented "the full verdict of your claim". Morgan (now Flint) – Instructions were received in July 1987. Initial reports were sought and received by March 1988. In November 1989 a police traffic report was sought and Counsel briefed. Counsel's advice was received in December 1989. A claim form was sent to the GIO in August 1992 asking that it be accepted although out of time. A Statement of Claim was prepared but not signed. On 12 March 1993 a conference was held with Counsel who advised commencing Workers Compensation proceedings. These proceedings were finally issued on 23.3.93. No satisfactory explanation of the delays is given by the Solicitor. Other matters of alleged delay are McCombie (8 months), Sengoz (7 months), Denroy (10 months), Murphy (2 years) and Bennett (3 months). The Tribunal is satisfied that each of the allegations of delay with the exception of a matter of Hatton are established. Some of the matters involve extensive delay and in almost all of these matters no satisfactory explanation has been provided. Although each matter taken individually might only lead to a finding of unsatisfactory professional conduct, when taken as a whole the large number of matters established by the evidence indicate a consistent failure to reach standards of competence and diligence. The Tribunal is satisfied that the Ground has been established and that a finding of professional misconduct should be made. Ground 7 The Solicitor charged in excess of scale costs. The Law Society has put forward a number of matters where the Solicitor is alleged to have charged in excess of scale. The allegations are that the Solicitor charged in accordance with a Law Society recommended scale but did not obtain from the clients the necessary authority to charge that fee instead of the Conveyancing Act Scale. This was a fee recommended by the Law Society at a time when there was a dispute with the Legal Costs & Fees Board over a delay in adjusting Conveyancing Scales. The amount of overcharge varies from $56 to $204 in a total of five matters. After Mr Lewis indicated to the Solicitor that because he had not obtained the necessary authority from the clients he had overcharged them, Mr Carver made a refund of the amount of the overcharge to each client. The Tribunal does not accept the Law Society submission that these five matters of overcharge constitute professional misconduct. Indeed the Tribunal is not satisfied that they amount even to unsatisfactory professional conduct. There was no wilfulness, no intention to overcharge, the fee was a fee that the Law Society promulgated to members as being a fair and proper fee and Mr Carver made a full refund to all clients. This ground is not established and is dismissed. Ground 8. The Solicitor failed to pay Counsels's fees. Flanagan – This was a personal injuries matter which was settled. The Solicitor received a cheque for costs and disbursements for $4,600.00 from the Insurance Co. That cheque was for profit costs of $3,380 and disbursements of $1,220. Disbursements included Counsel's fees of $600.00 which were owing to Mr McManamey. The Solicitor's explanation is that he believed Mr McManamey had been paid. He gave evidence that this matter was handled by Mr Evan Kontoulas with whom the Solicitor had made an arrangement. Mr Kontoulas conducted his own practice and from time to time assisted the Solicitor in personal injury matters. The Solicitor required Mr McManamey to be available for cross examination as to whether he had been paid. Mr McManamey gave evidence that he had not been paid although he was only to be paid on the successful conclusion of the matter. He agreed that he had been briefed by Mr Kontoulas on behalf of Star Carver & Co. The matter of Flanagan was settled and Mr McManamey should have been paid. He was never told that the Flanagan matter had been completed but had sent a fee note to Star Carver & Co. The Tribunal accepts his evidence. The Tribunal is satisfied that Mr McManamey was not paid. However in the light of Mr Carver's explanation that he thought Mr Kontoulas had paid Mr McManamey the Tribunal is not satisfied that the non payment of fees in this instance amounts to professional misconduct. Mr Carver has however failed to pay Counsel and the Tribunal is satisfied that this failure amounts to unsatisfactory professional conduct. It is bordering on professional misconduct. The failure to pay the $4,600.00 to a Trust Account certainly is a matter of professional misconduct. Ground 9 The Solicitor prepared a Statutory Declaration which was misleading. Biram – The facts of this matter were set out earlier in relation to a question of delay. As a result of that delay the Insurance Company required an explanation of the delay before agreeing to deal with the claim. Mr Carver caused a Statutory Declaration to be prepared which was signed by Mr Biram. It stated as follows (excluding formal parts): "1. I am the person referred to in the Claim for Personal Injuries as lodged with CIC Insurance (Ref: 192.01 – OFFICER: TP05). 2. I sustained injuries following a motor vehicle accident at Holbrook on 30th December, 1989. 3. On or about 20th February, 1990, I contacted my present Solicitors, Messrs. Star Carver & Co, regarding my claim in relation to injuries sustained in the aforementioned accident. 4. I left my affairs in the care of my Solicitors to investigate the possibility of obtaining damages as a result of my injuries. 5. I understand that my Solicitors had certain problems in obtaining a Medical Report from the Hospital to which I was admitted following the accident and that during the ensuing period my Solicitors moved offices, and I understand that my file was misplaced. 6. As a result thereof, my claim was not lodged within the required time." The declaration is signed by Mr Biram on 14.10.92 and witnessed by a Mr Dalton JP. Although evidence was given that Mr Biram spoke Creole French and was not fluent in English, there is nothing in the declaration to suggest it was translated to Mr Biram. Mr Carver gave evidence that Mr Biram's daughter would have been present and would have translated the declaration. The Solicitor denies that the declaration was misleading. He pointed out that it referred to matters other than the delay in obtaining a report, namely that the file was lost. He also attempted to deflect responsibility for the preparation of the declaration telling the Tribunal that it was prepared by his Clerk, Mr Dalton. A further explanation is that the client had no money, but to have put that in the declaration would have prejudiced the client's claim. Finally Mr Carver suggests that the issue of Mr Biram going to Holbrook Hospital first was an explanation consistent with paragraph 5 of the declaration. The Tribunal simply cannot accept the evidence and explanations of Mr Carver. It is simply inconsistent with the evidence and the contents of the file. It is the Tribunal's finding that this declaration was misleading and was prepared with a purpose to mislead. Mr Carver's reluctance to admit any wrongdoing in regard to this document is a matter which caused the Tribunal great concern. It shows a basic lack of honesty. The Tribunal is satisfied that this ground has been established and that there should be a finding of professional misconduct. Ground 10 The Solicitor failed to effectively carry out instructions. Rix – Mr Rix and Ms McCourt purchased real estate as tenants in common. They later married. Mr Rix died on 21.1.92. The Solicitor was instructed to administer the estate. By 18.12.92 when the file was transferred to another firm of Solicitors the Solicitor's only work had been on 15.10.92 when he prepared a Notice of Death. Such a form was not appropriate to the transmission of a tenancy in common. Probate had not been applied for. The Solicitor admitted his failure in this case. Although the Solicitor admits the facts in the matter of Rix, the Tribunal is not satisfied that this amounts to a matter where there should be a finding of professional misconduct. The Tribunal is satisfied that there should be a finding of unsatisfactory professional conduct in respect of this ground. Unsatisfactory professional conduct 1. The Solicitor acted in a manner which was unethical. Correale – The Solicitor purported to instruct a Barrister (Mr Skiller) when in fact he had never met the client and was not so instructed. The client had approached Mr Skiller direct and the Solicitor "assisted" Mr Skiller by providing him with a Back Sheet brief. The Solicitor admitted the facts but denied his conduct was unethical. The Tribunal is satisfied that the allegation amounts to unsatisfactory professional conduct and makes such a finding. 2. The Solicitor breached an undertaking. Roach – The Solicitor was instructed by Mr Roach in Family Law matters. He arranged for agents (Messrs McKenzie Cox) to appear for the client at Lismore Court and gave an undertaking to pay their fees. An account was forwarded to Mr Carver but was not paid. McKenzie Cox then sued Mr Carver and obtained a judgment against him. The account was eventually paid and settled. The Solicitor admitted the facts as alleged. There is a clear breach of an undertaking. The fact that the client failed to pay Mr Carver was no excuse. The Tribunal is satisfied that a finding of unsatisfactory professional conduct should be made. Supplementary complaint The Solicitor misled or attempted to mislead the Tribunal. This ground of complaint arises from the evidence of the Solicitor. The allegations are as follows: Benson – In his Final Reply the Solicitor sought to suggest that he had sent an accounting to Mrs Benson on 23 December 1992. This amounted to an authority to transfer monies to his office account and would explain his deposit of the cheque for costs and disbursements received on or about 30 December 1992 to that account. A letter with that date was annexed to that Reply. However in his earlier responses the Solicitor produced a letter dated 23 December 1993 in identical terms. In evidence the Solicitor conceded that the letter was not sent until 23.12.93. The Tribunal found Mr Carver's evidence about these letters most unsatisfactory. There was also some suspicion about two letters which Mr Carver asserted in evidence were prepared the same day but bearing different dates. The Tribunal is also troubled that the letters appear to have a different point size. However despite some misgivings about these letters the Tribunal cannot be comfortably satisfied that the Solicitor was attempting to mislead the Tribunal on this point. Benson – The Solicitor gave evidence that it was a requirement of the National Bank at Padstow that the client be present to open a controlled money account. The Law Society tendered evidence that no such requirement ever existed. The Solicitor's evidence about the need to take clients to the Bank suggests either an appalling ignorance of basic Bank procedure or an attempt to provide an explanation for the very serious allegations of failing to pay client money into a trust account or controlled money account. The Tribunal accepts the submission of Mr Hipsley that the Solicitor's evidence was false and misleading. Biarinec – The Solicitor gave evidence that he made many attempts to contact the client by phone and that these attempts would be set out in his day book. When the day book was examined by Mr Carver he was unable to show any entry confirming such attempts. The Solicitor shifted ground in the witness box from what he had submitted in his written reply. He had asserted in his Reply that he could only contact Mr Biarinec by letter. When it was pointed out to him that there was nothing on his file to suggest that any attempt at correspondence had been made in over two years he then suggested that telephone contact had been attempted. Those attempts were to have been confirmed by his day book. No such entries could be produced. The Tribunal is satisfied that Mr Carver attempted to mislead the Tribunal and appeared to be inventing explanations rather than admit the truth. Biram – The evidence of the Solicitor before the Tribunal is not consistent with the suggestion that the delay was caused by Albury Hospital. The Solicitor further asserted that he had a global authority from Mr Biram which he obtained when taking initial instructions. He was unable to produce that authority after searching his file. Again the Tribunal is satisfied that Mr Carver when placed in a difficult situation where there was no apparent explanation, sought to explain his delay by misleading the Tribunal and suggested he was waiting for Mr Biram to give him money for the Hospital report. In support of this contention Mr Carver gave evidence that he had a global authority from Mr Biram to obtain reports and clinical notes. That evidence was given presumably to deflect the clear evidence from his file that an authority was not sent to Mr Biram until 25.9.92, more than two years after the hospital had asked for an authority and payment. The Tribunal is satisfied that this particular of the ground has been established. Hatton – The Society contends that the Solicitor's evidence at pages 213 – 214 of the transcript is inconsistent and misleading in that he at first says he did receive instructions from Mrs Hatton and later says he did not receive any instructions from Mrs Hatton. The evidence concerning the Hatton matter is confusing. The Tribunal is in some doubt as to just what instructions Mr Carver received and from whom. His file purports to be a Workers Compensation claim but contains Police statements concerning Mr Hatton and nothing concerning Workers Compensation. His inconsistent evidence could be explained by the fact that Mrs Hatton saw him about Mr Hatton's police matter. We really do not know. The Tribunal is not comfortably satisfied that the Solicitor sought to mislead the Tribunal in this matter. Kerr – In his Reply the Solicitor denied that there was a delay and said that correspondence existed between 19 April 1993 and Mrs Kerr's death. When the file was produced Mr Carver was unable to point to any correspondence in that period. He admitted his error but denied he was attempting to mislead the Tribunal. Mr Carver was wrong in relation to his reply. He conceded as much in the witness box. He was clearly confused about dates in this matter and sought to produce correspondence all of which was earlier than 19 April 1993. Given the state of his confusion the Tribunal is prepared to give him the benefit of the doubt on this matter. Accordingly the Tribunal is not comfortably satisfied that the Solicitor sought to mislead the Tribunal in the matter of Kerr. Nolan & Griffiths, Wells and Furner – In each of these matters the Solicitor had opened controlled money accounts. He had stated in his Final Reply, in response to the matter of Benson, that his explanation for paying those moneys into his office account had been because he could not open a controlled money account without Mrs Benson being present. As she lived quite a distance from his office and could not accompany him to the National Australia Bank at Padstow, he took the expedient course of depositing her settlement funds to his office account. In evidence in chief he confirmed that the only way to open a controlled account was to take the client with him to the Bank. Under cross examination he maintained that his clients must accompany him to the Bank and that was a Bank requirement. Mr Hipsley in cross examination tested this evidence by looking at a number of controlled money accounts at random including the accounts of Nolan & Griffiths, Furner & Wells. At page 226 of the transcript the following questions and answers are recorded: "Q. I show you Exhibit 8. I referred you initially to folio 41, Paul Edward Nolan and Kylie Griffiths and you have opened an account styled Star Carver & Co in trust for Nolan, Griffiths & Fuentes? A. Yes. Q. Did you take either of those clients to the bank? A. Yes. Q. Which one did you take? A. Griffiths." The Law Society filed a Statutory Declaration from Kylie Griffiths dated 16 May 1996. Paragraph 4 of that declaration says "At no time did I go with the Solicitor to the National Australia Bank at Padstow or any other bank for the purpose of opening an account for monies in relation to the purchase of this or any other property." The Solicitor mentioned in the declaration was Mr Carver. Mr Nolan filed a similar declaration. At page 227 of the transcript Mr Carver gave evidence that he took Mr & Mrs Furner to the Bank and similarly Mrs Wells to the Bank for the purpose of opening controlled money accounts. Patricia Furner and Phyllis Wells both filed Statutory Declarations denying that had ever been to the National Australia Bank at Padstow with Mr Carver to open those accounts. The declarations were not challenged. Even when faced with these declarations the Solicitor attempted to explain that he could recall going to the bank with clients and particularly Mrs Wells. He finally conceded that he must have been mistaken. The only finding that the Tribunal can make in relation to these matters was that Mr Carver was deliberately dishonest and was clearly attempting to mislead the Tribunal. The evidence is simply overwhelming and the Tribunal has no doubt that the ground is established. Taking all the allegations into account the Tribunal makes a finding of professional misconduct on the supplementary ground that the Solicitor misled or attempted to mislead the Tribunal. Penalty The Tribunal has made findings of professional misconduct on seven grounds and findings of unsatisfactory professional conduct on four grounds. The misconduct matters are all very serious. Counsel for the Law Society submitted that the appropriate order should be the removal of the Solicitor from the Roll. Mr Hipsley conceded that initially the Law Society would have been seeking a restriction on Mr Carver conducting practice as a sole practitioner but in the light of the matters raised in the supplementary complaint his fitness to practice was called into question. Mr Skiller submitted that a fine would be an appropriate penalty as Mr Carver would have to sell his house to pay any fine that was imposed. Mr Carver is 46 years of age. He has been before the Tribunal before and was fined for professional misconduct (Disciplinary Reports No. 7 1991 p1). His appeal to the Court of Appeal was dismissed. He has been before the Standards Board. His failure to comply with the Board's Orders is a matter which this Tribunal has determined amounts to professional misconduct. He is a sole practitioner with a modest practice. Two character declarations were tendered as mentioned earlier. They are of little assistance given the concession that the declarants were not aware of the substance of these complaints. Mr Carver made a Statement at the conclusion of the evidence. In it he set out his background and the difficulties he had encountered in gaining his qualifications. He suggested that the Law Society had treated him unfairly and that Mr Lewis had not reported accurately. The Tribunal rejects any suggestion that Mr Lewis reported unfairly or inaccurately in any report. Mr Carver concluded by repeating that it had not been his intention to mislead the Tribunal. Taken individually the matters which were the subject of the initial complaint were not matters that would call for the removal of the Solicitor from the Roll. They indicated a certain lack of knowledge, some carelessness and an inability to deal in an efficient way with a number of matters. However, as the hearing progressed certain flaws in Mr Carver's character emerged. His attempts to mislead the Tribunal, his refusal to accept his errors, the basic dishonesty of the Biram declaration all cause the Tribunal grave concern. Could other practitioners be satisfied that they are dealing with a person of honesty? In the Law Society of NSW v Foreman 34 NSWLR 408 Mahoney JA (as he then was) at pages 438 – 446 sets out the principles to be applied in determining what orders should be made. His Honour made it clear that matters extend beyond "the mere protection of the public against serious misconduct". Issues of competence (Moulton's case), honesty and the trust of other practitioners and the Courts are all important factors. The Tribunal was referred to a number of cases on the issues of delay, overcharging and misleading conduct. All of those cases have been considered but the Tribunal considers the test of Mahoney JA set out above to be the appropriate way to determine the penalty in this matter. Is Mr Carver a fit and proper person to be held up to the public and other lawyers as a person of competence honesty and integrity? The Tribunal sadly is of the view that on the evidence in these proceedings Mr Carver fails each of those requirements. We cannot be confident that looking at all of the matters and the findings we have made that he has a level of competence that the public and other practitioners are entitled to expect in a Solicitor. We are also of the view that a lot of his evidence was false, either recklessly so or deliberately so. Courts and colleagues could not place their trust in Mr Carver's actions and word. We are therefore of the view that striking off the roll is the appropriate penalty and agree with the Law Society submission. The Tribunal shall hear argument on the question of costs. Orders 1. The practising certificate of Peter George Star Carver be cancelled. 2. The name of Peter George Star Carver be removed from the Roll of Legal Practitioners. 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