CITATION: Council of the Law Society of NSW v Mavrakis [2010] NSWADT 103 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: Legal Services Division APPLICANT The Council of the Law Society of New South Wales PARTIES: RESPONDENT George John Mavrakis FILE NUMBER: 092019 HEARING DATES: 4 & 5 February 2010 SUBMISSIONS CLOSED: 5 February 2010 DATE OF DECISION: 28 April 2010 BEFORE: Riordan M - Judicial Member; Pheils J - Judicial Member; Bennett C - Non-Judicial Member CATCHWORDS: Solicitor – disciplinary application – professional misconduct LEGISLATION CITED : Legal Profession Act 2004 Revised Professional Conduct and Practice Rules 1995 – Rule 12 Law Society of New South Wales v Jones (Unreported - Court of Appeal - 24 July 1978) Dupal v The Law Society of New South Wales (Unreported - Court of Appeal - 26 April 1990) Law Society of New South Wales v Lee [2005] NSWADT 242 Law Society of New South Wales v Hannam [2006] NSWADT 24 CASES CITED: Xu v Law Society of New South Wales [2009] NSWCA 430 Legal Practitioners Complaints Committee v Edwards [2007] WASC 287 Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 New South Wales Bar Association v Evatt (1968) 117 CLR 177 APPLICANT S Barnes, barrister REPRESENTATION: RESPONDENT T Lynch, barrister Orders1.That George John Mavrakis is publicly reprimanded and that this reprimand is published in the Register maintained by the Legal Services Commissioner pursuant to the Act 2.That George John Mavrakis be fined the sum of $3,000 ORDERS: 3.That the practising certificate issued to George John Mavrakis be subject to the following conditions:(i)He shall maintain a Trust Account while practising as a sole practitioner, principal or Director of an Incorporated Legal Practice.(ii)He will conduct such Trust Account at all times in accordance with the requirements of the Legal Profession Act 2004and the Legal Profession Regulation 2005 or such other regulatory or statutory requirements as may govern the conduct of solicitors' Trust Accounts.(iii) For the period up to and including 30 June 2012, he shall retain, at his expense, an accountant acceptable to the Law Society of New South Wales, and is to ensure that such accountant furnish to the Law Society of New South Wales not later than 21 August, 21 November, 21 March and 21 May in each year a report in which the accountant: (a)Confirms substantial compliance by the Plaintiff with all statutory or regulatory requirements governing the conduct of Trust Accounts; and (b)Details any apparent contraventions of or departures from any such statutory or regulatory requirements;(c)Confirms that all Business Activity Statements have been duly completed and lodged by the required dates therefore; and (d)Confirms that all amounts required to be paid or remitted by the Plaintiff for contributions to Employee Superannuation and PAYG and PAYE tax and GST have been paid or remitted by the due dates therefore; and (e) Details any apparent contraventions or departures from the obligations of the Plaintiff in relation to the lodgement of Business Activity Statements and the payment or remittance of superannuation contributions, PAYG and PAYE tax and GST 4.That George John Mavrakis is permitted to continue practising as a Solicitor on the condition that he shall within 14 days of the date of this decision provide the Society with the following irrevocable written undertakings:a. That he will undertake a course in Ethics that is approved by the Society that commences either prior to 31 May 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 30 November 2010.b.That he will on and from the date of his undertakings participate in the Senior Solicitors Program and accept mentoring by a Senior Solicitor nominated by the Society for a period of no less than three (3) years from the date of this decision and to confer frequently and co-operate with that Senior Solicitor in the conduct of his program. The costs of his participation in this program are to be borne by the Solicitor 5.In the event of, and upon any default in the satisfaction of any of the undertakings required by Order 4 above, George John Mavrakis' Practising Certificate shall be suspended forthwith and shall remain so for the duration of the default 6.George John Mavrakis shall pay the Society's costs of and incidental to these proceedings, as agreed or assessed. REASONS FOR DECISION 1 In this matter the Applicant, the Council of the Law Society of New South Wales ("the Society") made an Application against the Respondent, George John Mavrakis ("the Solicitor") alleging that he was a Legal Practitioner within the meaning of the Legal Profession Act 2004 ("the Act") and that while practising as such he was guilty of professional misconduct on multiple grounds. 2 The Society sought the following orders: a. The name of George John Mavrakis be removed from the Roll. b. George John Mavrakis pay the costs of the Society of and incidental to the Application. c.Such further orders as the Tribunal sees fit. 3 The Application set out the multiple grounds, supported by particulars, for a finding of professional misconduct against the Solicitor, namely that: "A. In relation to his client Mr D Todorovic ('Todorovic') i. Breached sections 253 254,255 and 260 of the Legal Profession Act, 2004. See Particulars A 1-25. ii. Misappropriated trust funds. See Particulars A 1-25. iii. Failed to honour his written undertaking dated 11 July 2006 to J M Crestani & Associates, Solicitors, See Particulars A 1-25. iv. Misled J M Crestani & Associates, Solicitors by his letter dated 17 July 2006. See Particulars Al-25. v. Misled Mr Todorovic's tutor Mr J Todorovic by his letter dated 17 July 2006 See Particulars A 1-25. vi. Failed to honour his written undertaking dated 31 October 2006 to Ms Sue Radd. See Particulars A 17, 20, 23 and 25. B. In relation to his clients Mr and Mrs C Gasparre ('Gasparre') i Breached sections 253, 254, 255 and 260 of the Legal Profession Act, 2004. See Particulars B 1-8 iiMisappropriated trust funds. See Particulars B 1-8. C. In relation to his client John Leslie Boreland ('Boreland') i. Breached sections 253, 254 and 255 of the Legal Profession Act, 2004. See Particulars C1-9 D. In relation to his client Peter George Varvaressos ('Varvaressos') i.Breached sections 253, 254, 255 and 260 of the Legal Profession Act, 2004. See Particulars D 1-18 ii.Misappropriated trust funds. See Particulars D 1-11 iii.Breached Rule 12 of the Revised Professional Conduct and Practice Rules 1995 by borrowing money from Varvaressos. See Particulars D 1-14 E.In relation to his Application for Renewal of his Practising Certificate for the year ending June 2008 i. Misled the Law Society. See Particulars F1-4 ii. Made a false declaration. See Particulars F1-4 F. In relation to the Australian Taxation Office ('ATO') Failed to honour his written undertaking dated 13 December 2007 to the Law Society. See Particulars B 1-2." 4 The Solicitor was born on 28 January 1962 and is currently 48 years old. He was admitted to practise in New South Wales on 21 December 1988. 5 As indicated above, the Application was particularised in detail, but it is not proposed to recite those particulars verbatim. However, the Tribunal notes that references to the Solicitor's personal account are actually references to his general or office account and that he did not conduct a trust account at the relevant times. The Evidence 6 The Society relied upon the following evidence: 1.Affidavit of Gavin Taylor Connor sworn 6 July 2009 – Exhibit A; 2.Affidavit of Raymond John Collins sworn 14 July 2009 – Exhibit B; 3.Affidavit of Karen Margaret Burrard sworn 6 July 2009 – Exhibit C; 4.Affidavit of Jackie Bromirski sworn 13 July 2009 – Exhibit D; 5.Affidavit of Anthony Stephen White sworn 13 July 2009 – Exhibit E; 6.Further Affidavit of Raymond John Collins sworn 25 January 2010 – Exhibit F 7.Orders of the Supreme Court of NSW in matter no. 12401 of 2008 dated 13 June 2008 – Exhibit G. These documents were admitted into evidence without objection and the Solicitor did not require the deponents to attend for the purposes of cross-examination. 7 In his opening, Mr Barnes stated that between about July 2006 and November 2007 the Solicitor breached Sections 253, 254, 255 and 260 of the Act. There was an investigation by Mr Connor, Trust Account Inspector, in 2007 as a result of a number of complaints that were made by a former employee. The substantial issue that arose from this was that the Solicitor had used trust monies to fund his office account and that he made ATM withdrawals from this account. He did not have a trust account and he did not have an overdraft facility on his office account. He handed up a Chronology as an aide memoir and indicated that most of the facts alleged in the particulars to the Application had been admitted by the Solicitor. 8 The Solicitor filed a Reply. 9 In relation to Todorovic (Todorovic), he admitted breaching Sections 253, 254, 255 and 260 of the Act, but denied that the conduct was wilful. He admitted failing to honour an undertaking. He also admitted misleading, but stated that this was not intentional or wilful, and he denied misleading Mr Todorovic. He denied misappropriating trust funds. 10 In relation to Complaint B (Gasparre), he denied breaching Sections 253, 254, 255 and 260 of the Act and denied misappropriating trust funds. 11 In relation to Complaint C (Boreland), he denied breaching Sections 253, 254 and 255 of the Act. 12 In relation to Complaint D (Varvaressos), he admitted breaching Sections 253, 254, 255 and 260 of the Act, but stated that the breaches were not wilful. He denied misappropriating trust funds, but admitted having breached Rule 12. 13 In relation to Complaint E, he admitted having misled the Society, but stated that this was not intentional. He also admitted having made a false declaration, but denied that this was intentional or wilful. 14 In relation to Complaint F, he admitted that he failed to honour the undertaking, as alleged, but denied that the failure was wilful or material. 15 The Solicitor relied upon his Affidavits sworn on 24 December 2009 (Exhibit 1) and 3 February 2010 (Exhibit 3) and an Affidavit of Brian Joseph Skinner sworn 2 February 2010 (Exhibit 2). Both the Solicitor and Mr Skinner were required for cross-examination by the Society. 16 The Tribunal notes that on 15 May 2008 the Society resolved to suspend the Solicitor's Practising Certificate with immediate effect and that it appointed Andrew Brown as the Manager of his legal practice. The Solicitor appealed to the Supreme Court of New South Wales and his Appeal was listed for hearing before Hidden J on 20 May 2008. The Appeal was allowed. 17 Orders were made on 13 June 2008 (see: Exhibit G), which lifted the suspension, revoked the appointment of the Manager and required that a Practising Certificate be issued to the Solicitor subject to the following conditions: "(i) Within one (1) month of these orders, the Plaintiff will open a Trust Account which he will maintain while practising as a sole practitioner, principal or Director of an Incorporated Legal Practice. (ii). To conduct such Trust Account at ell times in accordance with the requirements of the Legal Profession Act 2004 and the Legal Profession Regulation 2005 or such other regulatory or statutory requirements as may govern the conduct of solicitors' Trust Accounts. (iii). For the period of two (2) years commencing 1 July 2008 to retain, at his expense, an accountant acceptable to the Law Society of New South Wales, and is to ensure that such accountant furnish to the Law Society of New South Wales not later than 21 August, 21 November, 21 March and 21 May in each year a report in which the accountant: (a) Confirms substantial compliance by the Plaintiff with all statutory or regulatory requirements governing the conduct of Trust Accounts; and (b) Details any apparent contraventions of or departures from any such statutory or regulatory requirements; Confirms that all Business Activity Statements have been duly completed and lodged by the required dates therefore; and (c) Confirms that all amounts required to be paid or remitted by the Plaintiff for contributions to Employee Superannuation and PAYG and PAYE tax and GST have been paid or remitted by the due dates therefore; and (d) Details any apparent contraventions or departures from the obligations of the Plaintiff in relation to the lodgement of Business Activity Statements and the payment or remittance of superannuation contributions, PAYG and PAYE tax and GST. (iv). Not later then 31 December 2008, at his own expense, plaintiff is to attend and satisfactorily complete the art-campus course conducted by the College of Law in Trust and Office Accounting, as part of the "exemptee" stream, and sit for the examination in that course and achieve a pass mark (or better) generally required by the College for the said examination. (v). That within the minimum period permitted under Law Cover's schedule, or such further period as may be agreed between the plaintiff and the first defendant, the plaintiff is to complete, at his own expense, the four principal's modules of Law Cover's Principals' Risk Management Education Program". 18 The Society does not complain of any breach of those Orders and/or conditions, but for a short delay in the opening of the required trust account that was caused by the bank's administrative problems and a short delay in obtaining the initial Accountant's report. However, the Tribunal does not regard either matter as being of a material nature. 19 The Solicitor was called and sworn. After verifying the contents of his Affidavits as true and correct, he gave evidence about his practice prior to the proceedings in the Supreme Court. He said that between July 2006 and July 2007 he employed 3 to 4 Solicitors (at various times) and support staff and that his practice possibly had more than 100 active matters, including larger matters such as "Todorovic". He operated a "running account" with Legalink. At the time of the Supreme Court proceedings he employed another Solicitor and his practice had about 83 current matters (about 50 being litigation matters and balance being commercial matters). 20 In cross-examination, the Solicitor stated that he completed his Practical Legal Training at the College of Law in early 1988, where he received instruction about the operation of trust accounts. From this he was aware that a Solicitor could only disburse trust money received from a client as that client directed. After his Admission, he was employed as a Solicitor by a number of Firms for about 4 years before commencing practice as a Sole Practitioner on 10 November 1992. The Firms that employed him operated trust accounts and had permanent book-keepers and specific processes in place to deal with trust monies, but he could not recall what they were. 21 The Solicitor's evidence was that between November 1992 and June 2007 his practice was the subject of 5 random trust account inspections. He said: "… In each case the outcome, so far as I am aware was uneventful". However, his evidence was contradicted by Mr Collins (see: Exhibit F), as follows: 1)On 9 April 1996 Mr House, a trust account Trust inspector, attended his practice in response to a complaint about the Todorovic matter and he issued a Memorandum concerning the matter on 4 June 1996, which included the following: "1.2 I visited Mr Mavrakis on 9/4/96 and discussed the above matter with him. He said that his general account had suffered because of matters not billed by reason of the time taken up by the Todorovic matter. He said that he had an arrangement in place with the bank but would not take up an overdraft unless this were (sic) unavoidable. He has borrowed from his family, not clients, he states) and expects this plus current billings to cover outgoings." 2)In November 1996 a complaint was made by one of his former employees. On 6 November 1997 Fred Smith, Solicitor, was appointed as Investigator under Section 55 of the 1987 Act. He issued a report on 2 March 1998 and wrote to Mr Collins on 5 March 1998, in which he stated (in part): "… Of considerable concern is the fact that this Solicitor does not operate a Trust Account, operating his of practice entirely from the office account. A full and thorough random audit failed to reveal any potential breach of Section 61, however, the office account records as indicated in my report, are kept in an extremely poor manner. There is no cash book or audit trail to follow and it was with great difficulty that this aspect of the investigation proceeded. I strongly recommend that the Trust Account Department attend on this Solicitor regularly in the future to advise him and assist him in establishing a proper office accounting record system and to check further compliance with the Trust Account Provisions of the Act..." 3)On 28 May 1998 the Society dismissed the former employee's complaint, but resolved as follows: "The Committee directs the Professional Standards Department to write to Mr Mavrakis and emphasise the reservations expressed by the Investigator as to the state of the Solicitor's general account, and request that the inspection and investigation department, on its next inspection of the solicitor's practice, review the general account and advise the solicitor as necessary". 22 Mr Collins wrote to him on 4 June 1998 advising him of that Resolution. "1. The Solicitor's practice was next inspected in February 1999 and was the subject of a report from Jim Sofiak (TAI) dated 24 February 1999." 23 The Solicitor stated that during the period in which the events that are the subject of Complaints A, B, C D, E and F occurred, he suffered "personal stressors" that included the loss of an unborn child and his undergoing several surgeries. He also suffered "professional disruption", which he described as "a degree of debilitating instability in staffing the practice". This included the resignation of his book keeper/receptionist in August 2006 and his inability to find a replacement until 8 December 2006. He then retained a book-keeping service on a part-time basis until February 2007 and was again without a book-keeper until April 2007. That book-keeper resigned in mid-May 2007 and he retained a book-keeping service on a temporary basis on 22 May 2007. He then secured the services of a contract book-keeper in June 2007. At that time, the lease on his business premises was unexpectedly not renewed and he had to move on very short notice at the beginning of May 2007. 24 The Solicitor agreed that in June 1998 Mr Smith spoke to him of his concerns about the operation of his office account and that he had received a letter from the Professional Conduct Committee stating that it also shared Mr Smith's concerns. Mr Barnes asked whether he took any immediate steps "to improve this situation" and the Solicitor's response was to the effect that he did not recall having the workload, and that he did an end of year accounting with his accountant. He could not recall if he took any immediate steps to improve his record keeping. 25 Regarding the steps that he took to ensure that he did not receive trust money, the Solicitor said that he always paid disbursements himself and was reimbursed when he issued his bill. However, he agreed that his legal practice was significantly in debt to Legalink (about $10,000) at that time and he conceded that he did not always pay disbursements before he received money from his clients. He said that "with hindsight" he agreed that he had received trust money, which he banked into his office account and that he used it for his own purposes. 26 In relation to Todorovic, the Solicitor agreed that he accepted an advance of monies from the Insurer, which was trust money. He said that he kept records of the disbursements that he paid and that he "… never took any money from anybody and that he never wanted any risks with others' money at all". His system was to avoid receiving trust money whenever possible. He asserted that his staffing problems increased his workload and this, combined with his "personal stressors", meant that he was not as attentive to his obligations under the Act as he should have been. This caused him embarrassment. 27 In relation to Boreland, the Solicitor conceded that the money that he received should have been placed in a trust account and that he had wrongly endorsed the deposit cheque in favour of his client's company. He realised this after he had completed the course at the College of Law, although he said that he had not believed that this was the case when he filed his Reply in August 2009. 28 Mr Barnes put to the Solicitor that this was the first time he conceded any wrongdoing in relation to this complaint. He said that he did only insofar as he had endorsed the cheque to his client's company and not to his client (as vendor), but that for abundant caution he would now place funds of that type in his trust account. He said that at the time he thought that it was "OK" to endorse the cheque in favour of the vendor. However, he was prepared to concede that the purchaser had paid the deposit to him "as stakeholder" with the intention that he would hold it until completion of the transaction and that he ceased to control the funds when he endorsed the cheque to his client's company. He said that he did not open a controlled money account as he dealt with the matter "in haste" and he agreed that he should have been "more careful". He also said that he had reached the view that the position stated in his Reply was incorrect "upon closer examination of the wording of the clause" and that this occurred to him "today". He conceded that his staffing problems and personal stressors did not contribute to his conduct in endorsing the cheque. 29 The Solicitor said that until the end of 2007 he was subjected to significant personal pressure and financial pressure from the Australian Taxation Office and that "in retrospect" this had clouded his judgment about the procedures to be applied to ensure compliance with the Trust Account Regulations, the Act and the keeping of proper Office Account records. 30 Mr Barnes referred the Solicitor Mr Connor's report, which stated (in part): "Financial Stress: Indicators and effects The office account bank statements exhibit clear indications of financial stress within the practice. In the period reviewed, 24/6/2006 to 22/6/2007, there were 48 instances of the bank reversing cheques as well as periodical debits to the account. Over the same period approximately $360,000 of capital injections and loan funds were deposited to the office account. In addition, on 22/5/2006 the office bank statement has a debit entry styled: "To XXXXXXX as per Garnishee Order $4742.95." The account XXXXXXX is a home loan account in the name of George John Mavrakis which at the time of the garnishee by XXX on his office account had a debit balance of $223,137.98 Other items described below (in particular items 2, 3, and 4) indicate that Mr Mavrakis has either been unable or unwilling to met his financial obligations as and when they fell due for a period extending over many years." 31 The Solicitor disputed that his records "showed clear indications of financial stress within his practice" and said that he always had access to other funds. He agreed that it was "not ordinary" to have 48 cheques bounce, but that he injected $360,000 of capital into his practice - because his debtors were significant at that time and that he later prepared Profit & Loss Statements that indicated a profit of about $120,000. He stated: "Throughout my practice, I have I believe, adopted a conscientious role to the protection of my clients and I do not believe that in the future, there would exist any risk to my clients as a consequence of my continuation in practice." 32 In relation to Todorovic the Solicitor stated that "… there was never any risk of loss of the funds" and that the fact that some of the cheques did not get sent out on time did not cause any loss to his clients. However, he admitted breaching the Act. He did not know why the cheques were not sent out immediately as there was so much going on in the matter and an employed solicitor had control of the matter. However, the responsibility ultimately rested with him. He agreed that he wrote to Mr Todorovic stating that the advance monies had been applied as indicated in his letter and that this was misleading. 33 In relation to Varvaressos, the Solicitor admitted that he had received the deposit of $13,500 and that the contract required that it be held by either the Agent or the vendor's solicitor (himself) and that he banked it into his office account. He agreed that 7 days later he issued a Notice to Complete and threatened the purchaser with forfeiture and that as at 5 March 2007 the balance of his Office Account was $2,970.26 Cr. and that on 6 March 2007 it was $1,487.02 Dr. The sale settled on 13 March 2007. He agreed that payments had been made against the deposit monies during that period and that the effect of this was that "cheques were drawn to whoever they went to". He said that "with hindsight" he was not entitled to use those funds and that they should have been treated as controlled monies, but that this had not occurred because he did not think that the transaction would proceed. When it did proceed, he was concerned that the deposit monies should clear as soon as possible. He did not deal personally with the matter, but did direct the deposit into his Office Account. He could not recall its balance at that time, but thought that he would have made enquiries about its balance "afterwards". However, he maintained that he had access to other funds and he denied "intending to use the deposit monies to cover his business expenses". He also disputed that an inference could be drawn that he had used his client's money to run his business rather than having an overdraft facility and said that this was not his intention. 34 The Solicitor agreed that he had borrowed money from Mr Varvaressos after settlement and that $3,086.78 was effectively deducted from the deposit, which was notionally held in his Office Account. The account had a balance of approximately $10,500 at that time. He said that if he was holding that money as a stakeholder, he would have accounted to his client in full. He admitted breaching Rule 12 and said that he became aware of this either during the investigation or when he conferred with his Solicitor in 2008. However, he said that he forgot that Mr House had told him in 1996 that there were problems involved in borrowing from clients. He agreed that the only document that recorded the loan was a Reconciliation Statement and that the loan was unsecured. 35 In relation to Gasparre, the Solicitor's Reply denied that he had breached the Act. However, the Solicitor stated that he now agreed that the monies should either have been placed in a trust account or that he should have paid the disbursements before he rendered a bill. However, then said that he understood that some monies don't have to be paid into a trust account and that this was the case in relation to his running account with Legalink – it was "an exception to the Rules". He nevertheless agreed that $519.50 of his clients' money had been used by his practice. 36 Mr Barnes put to the Solicitor that the evidence of Jackie Bromirski and Anthony Stephen White, officers of Legalink, was to the effect that as at 6 September 2006 his account was $10,930 in debit. He agreed that he received his clients' monies on 31 August 2006 and that as at 18 September 2006 his Office account was $4,520 in debit. He did not make any payment to Legalink until 26 June 2006 and he then paid it $5,000 to reduce the overall debt. Mr Barnes asked the solicitor whether he accepted that during this period he must have used his clients' money. He replied: "I don't know how prior payments to Legalink were made up." 37 Mr Barnes directed him to the Ms Bromirski's running commentary of his dealings with Legalink and asked whether he accepted that he had not made any payment to Legalink after he received instructions from the client and before 26 June 2006. He replied: "I don't know for certain. It's what it says, but I don't know if it's correct". However, he conceded that he had not required either Ms Bromirski or Mr White for cross-examination. 38 Mr Barnes asked the Solicitor to assume that the sum of $519 was trust money and that he had used them for the purpose of running his office account. He replied: "If you assume it is correct, then it is a possibility." When pressed about this issue, the Solicitor replied: "If that's the effect, then that's the effect." 39 Mr Barnes also took the Solicitor to his Reply (paragraph 9(e)), where he stated: "In those circumstances the Respondent understood and believed that funds paid by a client which had been brought to account as disbursements in a tax invoice, were due to the Respondent for disbursements paid or incurred on behalf of the client and did not constitute trust money." The Solicitor replied that this was no longer his belief and that he had "…changed his practice somewhat". 40 In relation to complaint F, the Solicitor agreed that he had breached his undertaking to the Society, but said that there were problems in getting the required report done. He agreed that he should have notified the Society of these problems. 41 In relation to Complaint E, the Solicitor accepted that he had misled the Society regarding the receipt of trust money and that his Declaration was false. Mr Barnes referred the Solicitor his Affidavit evidence (Paragraph 67, Exhibit 1), namely: "At the time I completed my application for a practising certificate, I gave no thought to whether in relation to the matters particularised at Grounds A to D, funds I received my have been trust money." 42 The Solicitor said that he was in a rush to complete his Application for Renewal, but he agreed that the process of making a Statutory Declaration "is serious" and that he should have turned his mind to whether or not he had handled trust monies at that time. However, he denied that knowingly making a false declaration. 43 The Solicitor also conceded in relation to the "processes and courses" that he had undertaken, which he deposed to in his Affidavit (Exhibits 1 and 3), he was required to undertake them under the Orders made by Hidden J. He said that he had otherwise attended MCLE sessions. He concluded that he had "… endured a financial hardship as a consequence of all of this." 44 Brian Joseph Skinner was called and sworn and he confirmed the contents of his Affidavit. In cross-examination, he was asked what had occurred during the matter that he described in paragraph 2 that caused him to form the opinion that the solicitor "…was an honest and trustworthy practitioner." He replied that it had been a difficult matter and that he felt that the Solicitor had handled it extremely well and that he could trust him and could trust him to take accurate statements. He said that he had not seen the Reply, but that he was aware that the Solicitor had "substantially admitted the complaints". He regarded the matters as serious and expressed his view that "…it is a form of madness for a Solicitor to try to run a practice without a trust account". He also commented that because of the nature of the Trust Account Regulations, "… it makes no sense not to operate a trust account and that if is a Solicitor does not operate one, it is more likely than not that they will get into trouble". He also stated his view that a Solicitor requires an overdraft facility on an office account and that this Solicitor "… should have lined this up with his bank". He said that he would be extremely critical of any Solicitor who did what the Society said this Solicitor has done and that it is at the least foolish behaviour that he strongly disapproves of. However, he denied any personal knowledge of the Solicitor's internal office procedures. 45 At the conclusion of Mr Skinner's evidence, the Solicitor was re-examined. He denied that he was financially stressed as Mr Connor's report asserted and said that his $360,000 injection of capital came from a facility that he held with CommSec, which enabled him to draw down funds against shareholdings, real estate holdings and family assets. He did not intend to take any trust monies and said that this situation arose because he was "not paying attention". He denied that he needed to use his clients' funds for his own purposes. Submissions 46 The Tribunal heard lengthy submissions and arguments from both counsel. 47 Mr Barnes noted that the Solicitor admitted all complaints except "misappropriation". He argued that there was evidence that the Solicitor had known since 1992 that he was required to hold trust money in a trust account and that he consciously decided not to operate a trust account. His evidence was not convincing regarding the processes that he had in place to avoid receiving trust money and it appeared that these either involved his paying a disbursement and then obtaining reimbursement from his client or obtaining from the client a cheque made payable to a third party payee. However, there were clearly no checks and balances in place to prevent him from depositing trust funds into his office account. He also noted the Solicitor's evidence that in 2007 he became aware that it was "…OK to deposit trust monies into his Office account and to instantly draw cheques against those monies in favour of third parties (for the stated purpose) and that this was an exception to the rules about trust monies". 48 Mr Barnes submitted that there was evidence that the Solicitor was first made aware of issues concerning his record keeping in 1996, and that about 18 months later he was investigated by Mr Smith (an Investigator appointed under the 1987 Act), who reported that he had a very poor office accounting system in which no receipts were computer generated and there was no audit trail. He recommended the use of a more conventional system and that the Society should caution the Solicitor to introduce a proper accounting system that made an audit possible and regular visits and advice. The Solicitor received Mr Smith's report in 1998 and the Society advised him of a Resolution by the Professional Conduct Committee that was based on Mr Smith's report). However, he took no action and told the Tribunal that this was because "his workload decreased". 49 Mr Barnes argued that the Solicitor's breaches of the Act are serious and are not isolated or one-off occurrences, but occurred over a lengthy period of time. The solicitor had proffered 2 explanations in his Affidavit evidence, namely: 1)He had staffing problems, namely a turnover of employed solicitors and he had no bookkeeper at times; and 2)He had personal difficulties involving his partner and their wish to start a family, which caused him to undergo a medical procedure. However, how those matters had caused or contributed to the Solicitor's conduct was first considered in his oral evidence during the hearing. In relation to Boreland, he eventually and reluctantly conceded that those matters had no impact on his actions, and in relation to Todorovic, Gasparre and Varvaressos, he was unable to offer any cogent answer as to how they had caused or contributed to his conduct. Therefore, he argued that the Tribunal should conclude that they did not have any effect on his conduct and that his conduct remains unexplained. 50 Mr Barnes also argued that the Solicitor did not make a full and frank disclosure and only conceded the complaint in Boreland during cross-examination. While his oral evidence was that he had changed his view during 2008, this was not consistent with the Reply and his view that it would have been "OK if he endorsed the cheque to the client and not his company". However, he later conceded that this would not have been "OK" and said that he changed his mind about that issue "yesterday". 51 Mr Barnes argued that although the Solicitor now asserts that he is fit to practise as he has complied with the Supreme Court's Orders, the Society's view is that his use of funds in Gasparre and Varvaressos is not consistent with any contrition for past actions. In Varvaressos, the Solicitor was extremely reluctant to admit that he had used the funds for his own purposes. Further, in Gasparre, despite admitting that he did not pay Legalink beforehand and that his account was approximately $10,000 in debit, he did not readily concede that this was so despite not challenging the evidence from Legalink's authorised officers. Their evidence proves that the Solicitor did not follow his stated procedure of first paying disbursements and then obtaining reimbursement from his clients. He did not show any insight into his conduct or explain it and he could not explain why he held back three (3) cheques in Todorovic. He had also not adequately explained why he failed to set up an Overdraft facility for his Office account at that time. While his explanation was to the effect that he had assets, funds and family to borrow from and that his clients were at no real risk of losing their funds, the Society submits that this explanation is not good enough. 52 While the Solicitor denied that his practice was under financial stress, he was clearly the subject of pressure to meet his financial obligations from the ATO. This eventually led to him giving an undertaking to the Society. Mr Barnes submitted that if his practice was not under financial stress at that time, why then did he need to borrow monies from Varvaressos? Further, in relation to Varvaressos and the Solicitor's breach of Rule 12, he noted that the Solicitor's explanation was that he "forgot" what Mr Connor told him in 1996, namely that "borrowing money from clients was not appropriate". This was his only explanation and he argued that the Tribunal should reject it. 53 Mr Barnes argued that "misappropriation" is constituted by use of trust money either without, or contrary to, a direction from the client and that misappropriation exits simply be reason of the Solicitor's use of clients' monies without their authority. He submitted that while breaches of the Act are the most serious matters, the other conduct particularised in the Application is also serious, as the Solicitor misled Todorovic and Crestani; he breached an undertaking to Crestani and Ms Radd; he obtained a loan from Varvaressos without either appropriate documentation or security; and he misled the Society when he applied to renew his Practising certificate for the 2007/8 year. On that basis, the Society's view was that the Solicitor failed to appreciate his responsibilities. 54 Mr Barnes also noted that there was no medical evidence before the Tribunal regarding the solicitor's alleged personal stressors and that the "character evidence" from Mr Skinner did not really establish that he is a person of good character. Rather, Mr Skinner was very critical of the Solicitor's decision to not operate a trust account and stated that this required a degree of vigilance that the Solicitor failed to apply. 55 Mr Barnes argued that as the complaints were established and there was no rational explanation for the Solicitor's conduct, two (2) possible inferences could be drawn, namely: 1)That he knowingly used trust monies for the purposes of his office account; or 2)That he was recklessly indifferent as to what happened to his clients' funds; safeguarding their funds; and the use of their funds. 56 The Society relied upon the decision in The Law Society of New South Wales v Jones (NSW Court of Appeal, decision dated 24 July 1978) in which Street CJ stated: "Reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor. Members of the public, many of them wholly inexperienced and unskilled in matters of business or of law, inevitably must put great faith and trust in the honesty of solicitors in the handling of monies on their behalf. The Court must ensure that this trust is not misplaced. It is in recognition of this duty upon the Court that I have reached the conclusion that the finding of the Statutory Committee in this case fell short of what was required in the light of the repeated and long-standing defalcations and the subsequent conduct of the present respondent." 57 Further, in Dupal v The Law Society of New South Wales (NSW Court of Appeal decision dated 26 April 1990), Handley JA stated (at page 22): "This Court would be departing from a long course of authority if it were to allow the appeal and substitute a period of suspension for the order of the Tribunal removing the appellant from the roll. Counsel were not able to refer us to any case where a solicitor found guilty of misappropriation or wilful contraventions of s 41(1) has not been struck off the roll. Any decision to the contrary would signal to the profession and the community that this Court was no longer insisting on solicitors maintaining the highest standards of personal honesty and integrity in their dealings with clients and the public and in the handling of monies entrusted to their charge. The maintenance of those standards and the public interest require, in my judgment, that this appeal be dismissed. It is well established that the jurisdiction being exercised in this case is not penal but disciplinary and that it must be exercised for the benefit of the public. Sympathy for the appellant and for the tragedy that he has brought on himself and his family by his inability to live up to the high standards which this Court and the profession demand of solicitors cannot be allowed to deflect this Court from doing its duty." 58 Further, Kirby P stated (at page 1): "A case of wilful misuse of the funds of others In this sense, the response of the Court to the facts as found by Handley JA (which I also accept) necessarily expresses and reflects the standards which the Court requires of legal practitioners in this State. In an appeal such as the present, the Court disposes of the case before it by reference to criteria of general application. These should be clear and simple. They should be such as to leave no doubt in the mind of a practitioner in financial difficulties, exposed to the temptation of using without clear authority the funds of another, the consequences that will flow for the right to practise when such misuse of funds is discovered." 59 Accordingly, the Society sought orders as per the Application. 60 On behalf of the Solicitor, Mr Lynch stressed that there is no evidence that the Solicitor dealt with trust monies before 2006, which in turn proved that he was conscientious about not receiving trust money for a long period of time. He argued that this is significant regarding the findings to be made and penalties to be imposed in relation to matters that have been admitted. 61 Mr Lynch stated that the Solicitor did not dispute the facts regarding his conduct. However, he argued that the issues that arise from that conduct are legal issues about how the conduct should be characterised and that these are not matters for admission by the Solicitor. He argued that there was "a certain guilelessness" about the Solicitor's conduct and that it could not be inferred from the evidence that the Solicitor attempted to hide what he was doing, which made it obvious that honesty "in the sense of candour and frankness" is a characteristic of the Solicitor that has affected the entirety of his practise and his dealings with his clients and the Society. His concessions during cross-examination indicate that he had not "dug in" to defend himself, but rather continues to reflect upon his conduct and to benefit from the courses that he has undertaken since 13 June 2008. He argued that this proves that the Solicitor is thinking about his conduct and is prepared to acknowledge that changes are required and that this would allow the Tribunal to be comfortably satisfied that the Solicitor is now a very different practitioner from the one who got into trouble through the investigation by Mr Connor, and that he now understands his position and reflects upon it. 62 In relation to Gasparre, Mr Lynch argued that the Solicitor's concession during cross-examination that the sum of $519 was trust money indicates that he agrees with "the orthodox view" proffered by the Society. However, he stated that whether or not that view is accurate is a legal question for the Tribunal to determine and is not a matter for admission by the Solicitor. He argued that this is relevant when considering the reasonableness of the different view that the Solicitor held at that time. He stated that Society's view may not be correct, as "trust money" is defined in Section 243(1) of the Act as "Money entrusted to a law practice" and includes "(a) Money received on account of legal costs in advance of providing the services". Further, "legal costs" is defined in Section 4 of the Act as: "An amount that a person may be charged or become liable to pay to a law practice for the provision of legal services including disbursements". 63 Mr Lynch argued that the concept of "legal costs" does not distinguish between professional fees and disbursements, but instead includes monies received on account of legal costs in advance and by inference excludes legal costs "in arrears". He argued that whether the Solicitor was right or wrong, what he did was arguably consistent with a reasonable view of the law and if the Tribunal accepts that definition of "legal costs", there is no basis for finding that the Solicitor dealt with trust monies in Gasparre. He concluded that he was not aware of any decided cases that that supported this argument. 64 In relation to Boreland, Mr Lynch argued that the Solicitor could not be compelled to become a stakeholder and that when the deposit cheque was received he decided that he "was not prepared to do it" because he didn't deal with trust monies. He argued that this was an example of the Solicitor consistently not accepting trust monies as he had done since 1992 and that he could not have been compelled to accept the trust of that money. He noted that the Solicitor conceded during cross-examination that what he did was wrong, because he should have returned the cheque to the purchaser if he was not prepared to accept the trust of the money. However, he argued that the deposit monies were not "trust monies" at that time because the Solicitor was not prepared to accept them, although they were possibly "trust property" under the Act. His conduct fell down because he accepted the monies and obtained instructions from the vendor and then dealt with the deposit monies under those instructions. However, while he "got it wrong" this was not because he was indifferent to dealing with trust money, but rather because he did not break down the steps that were required to deal with a cheque that he was not prepared to be entrusted with. The Solicitor agreed that it was not up to him to unilaterally decide what happened to monies that were paid to him as stakeholder. 65 Mr Lynch submitted that if the Society was concerned with misappropriation in the objective sense, it should also have alleged "misappropriation" in Boreland. He argued that the Society is using the word "misappropriation" to avoid facing up to the issue of whether the Solicitor's conduct is dishonest or deliberate, because once it is alleged that trust money was not paid into a trust account there is always a misappropriation. He argued that this indicates that the Society wants to allege something else, namely that the Solicitor is guilty of "knowing or reckless conduct", although it does not say so. In his view, this point "becomes really quite dramatic" as there are at least two (2) decisions of the Tribunal where misappropriation in the objective sense was not regarded as indicating dishonesty or deliberateness, namely The Law Society of New South Wales v Lee [2005] NSWADT 242 and The Law Society of New South Wales v Hannam [2006] NSWADT 24. He was critical of the Society, as if it wished to allege dishonesty or deliberateness then it should have used those terms, because misappropriation is not a statutory term. It has not done so and he argued that it has "prevaricated" about this throughout these proceedings as it did in the proceedings before Justice Hidden. 66 Mr Lynch argued that nothing in the correspondence regarding Todorovic proves that the Solicitor was indifferent to dealing with trust monies, although he agreed that he should have sent the monies back to the Insurer. Instead, he issued a disbursement bill after he received the cheque and said that he did so because he did not recognise that all of the monies received were trust monies. He submitted that this was not evidence of either recklessness or knowing conduct by the Solicitor. He also made lengthy extensive submissions about the financial benefit that the Solicitor allegedly derived by retaining monies in his office account and argued that if the Solicitor was deliberately, or recklessly, or knowingly seeking to retain working capital it was odd that he paid the larger disbursements soon after he received the monies. Further, the covering letters dated 17 July 2006 prove that the Solicitor's intention was to disburse the monies "at the time that they were received". There was evidence of inefficiency but not evidence of deceitful, dishonest, knowing or reckless conduct on his part. 67 Mr Lynch argued that if the Tribunal rejected that argument, but accepted his submissions in relation to Gasparre, the next time that there is "a taking of money to the office account" is on 16 February 2007 in Varvaressos. He argued that the period of time between July 2006 (the first Todorovic transaction) and the Varvaressos transaction in 2007 negates the suggestion that the Solicitor was deliberately seeking a financial advantage by holding onto deposits and trust monies as working capital and/or to avoid having an overdraft facility for his office account. Further, the Solicitor was adamant that he was not financially stressed at that time and there is evidence that he had other resources open to him that he could call upon, and did call upon, in order to support the operation of his practice. He disputed that any valid distinction could be drawn between the Solicitor's practice being subject to financial stress and the solicitor himself being financially stressed. He stated that the Solicitor's evidence was that his office account went into debit, necessitating the reversal of 48 cheques, because a number of cheques from his clients were dishonoured. 68 Mr Lynch argued that the facts in The Law Society of New South Wales v Lee were broadly comparable to this matter, although a significant difference was that Mr Lee operated 2 accounts more or less as trust accounts and deposited about $180,000 into his office account. The Tribunal stated (at paragraph 7): "It was not suggested by the Society nor was there any evidence that the Solicitor has misappropriated monies for his own benefit. What became apparent when the Solicitor gave evidence was that despite having attended compulsory courses, such as the College of Law and, since these matters came to the attention of the Society , a further trust accounting exam through the College of Law in October 2002, the Solicitor's knowledge of what constitutes trust monies remains poor." 69 He noted that in Lee's case, the Society did not argue, as it did here, that the deposit of monies into the office account was misappropriation for the Solicitor's own benefit. Rather, it indicated that the deposit would not have been misappropriation for the Solicitor's own benefit and it was also common ground that the Solicitor had, to a large extent, reformed his ways. The Tribunal accepted the Solicitor's explanation that the contraventions, although wilful, arose primarily from ignorance and a reckless disregard for the obligations under the Act and Regulations. He was fined $1,000, was publicly reprimanded and was required to undertake appropriate remedial training. He argued that the Tribunal should follow this approach in this matter. 70 In The Law Society of New South Wales v Hannam, an investigation indicated that the Solicitor had failed to maintain accounting records. There were thirteen (13) particulars under Section 61 of the 1987 Act and further particulars under Section 62 of that Act. The Solicitor's failure to keep records meant that the investigator could not determine whether or not fees had been paid in at least four (4) matters and in five (5) other matters there were very lengthy delays between monies being received and paid out. The Solicitor admitted each of the allegations (all-up there were fifteen (15) breaches of the 1987 Act. The Tribunal stated: "21 The Applicant does not allege that there has been defalcation in relation to Trust monies received by the Solicitor. There are, however, areas in which it has been impossible for the investigator to determine whether or not disbursements have been paid to those entitled. It is not in dispute that the Solicitor promptly paid settlement monies due to his clients, albeit those monies were paid from his Office Account. On some occasions disbursements were paid from the … account. There is no explanation forthcoming for that anomaly. 22 The Tribunal acknowledges that the Solicitor's admissions before the Tribunal, both as to the facts relied upon by the Applicant, and that he should have 3 findings of Professional Misconduct recorded against him, substantially reduced the hearing, thus saving considerable time and expense. Such admissions should also be treated as evidence of remorse for his conduct, giving rise to some mitigation of penalty to be imposed. Nonetheless, the Tribunal was not comfortable with the draft consent orders prepared by the parties, and felt that this was a matter not entirely to be viewed in the same light as Law Society of New South Wales v. Douiehi [2002] NSWADT 265. Specifically, the Tribunal was not satisfied that the regimen disclosed in the consent orders, made adequate provision for oversighting of the Solicitor's conduct of his Trust Account. The Tribunal was particularly concerned that for a lengthy period and despite his conduct being brought to his attention by a Trust account inspector, the Solicitor persisted in intermingling trust funds with his personal funds, and persistently failed to maintain records to such an extent that it was not possible for Miss Sayer to be satisfied in a number of instances as to whether or not monies due to other persons had been paid to them. The Tribunal was also uncomfortable with the undeniable fact that the solicitor's office account had been maintained in credit balance as a consequence of his persistent practice of paying client monies into that account. Thus he has used client funds as part of his working capital. To what extent it is not possible to ascertain…" 71 Further, in Hannam, there was evidence of the very benefit that the Society asserts arose in this matter, namely that the Solicitor constantly intermingled trust monies in his office account with the working capital that he provided for his practice. However, the Society did not seek to have the Solicitor's name removed from the Roll. The Tribunal determined: "28 The Tribunal is satisfied that no defalcation of trust monies has been established against the solicitor. 29 The Tribunal is concerned, in the interests of the protection of the public, that in future the solicitor conducts his Trust account in accordance with the requirements of the legislation. The Tribunal is not satisfied that the consent orders arrived at between the Applicant and the Respondent are sufficiently stringent to oversight the solicitor's practice in the immediate future." 72 Mr Lynch argued that the facts in Jones and Dupal are clearly distinguishable from this matter and that another example of the significance of the Solicitor's intention is the decision in Legal Practitioners Complaints Committee v Edwards [2007] WASC 287, in which the Supreme Court of Western Australia stated: "57 A solicitor trustee is subject to the same fiduciary duties and obligations as any other trustee in relation to the trust property. It is trite law that a trustee must not profit from the trust (at least, without the informed consent of the beneficiary) and that the trustee must not place himself in a position where his duty conflicts with his personal interest… 59 It is also trite to say that not every misuse of trust funds involves the same degree of seriousness. At one extreme, a gross breach of trust by a solicitor trustee may well justify striking the solicitor's name from the roll of practitioners. At the other extreme, a solicitor trustee who acted honestly and reasonably might be excused from liability for the breach of trust under s 75 of the Trustees Act 1962 (WA)… 62 In essence, the applicant submits that in all the circumstances, the practitioner's name should be struck from the roll, this being the appropriate penalty in cases of dishonesty. The applicant relies on the decision of the Full Court of the Supreme Court of South Australia in Re a Practitioner (1982) 30 SASR 27 where King CJ held that whenever a client's money is deliberately used for a purpose other than the purpose for which the client entrusts it to the practitioner, there is an act of dishonesty (31)." 73 Mr Lynch argued that this decision indicates that there is an objective range of seriousness regarding a Solicitor's conduct. The Court held: "69 In the present case, the practitioner's ignorance of her fiduciary obligations as a solicitor trustee is cause for considerable concern. However, there is a significant difference between this case and Moulton. There, the solicitor sought to justify his conduct. Here, although that was initially the practitioner's attitude, she had at least appreciated before the complaint was made against her that she should obtain some direction from the court as to the proper use of the HRH Fund: and as soon as the matter became contentious, she took advice from senior counsel who explained to her the error of her ways and whose advice she has accepted fully." He noted that the Committee sought an order removing the Solicitor's name from the Roll, which was the appropriate penalty in a case of dishonesty, and relied upon the decision of the NSW Court of Appeal in Law Society of New South Wales v Moulton [1981] 2 NSWLR 736. 74 In Moulton, the Solicitor borrowed monies from his clients over a considerable period at rates of interest below the commercial rate and often on inadequate security. The solicitor had not given any or any adequate advice to his clients about the desirability or need for obtaining independent legal advice. Some of the beneficiaries of the relevant trusts were infants. Hutley JA said of the practitioner [at paragraph 66]: "He is a professional man, put forth as a professional adviser and any person is entitled to have from a solicitor on the roll elementary advice on the law of trusts. It is not, in my understanding of what is the minimum standard required of a solicitor, that such ignorance, coupled with an unwillingness or incapacity to take the elementary steps necessary to equip himself with the requisite knowledge, should be tolerated. The respondent was at the time of hearing a practitioner of some eighteen years standing, and he was no mere tyro emerging from a law school. To look at this transaction purely in terms of whether or not he was guilty of a deliberate breach of trust is to weigh it, in my opinion, on entirely wrong principles. It, of itself, disqualifies him from remaining a solicitor, unless it is to be treated as an entirely exceptional aberration (754)." 75 Further, Hope JA cited the decision of the High Court of Australia in New South Wales Bar Association v Evatt (1968) 117 CLR 177, where it was said that: "The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser." And, [at paragraph 68]: "A failure to understand and appreciate the care that must be taken by a solicitor who wants to make use of his trusting client's money for his own purposes would generally show an unfitness to remain on the roll. In so far as Mr Moulton's ignorance should be treated as a lack of knowledge rather than a lack of standards, it was not ignorance of some esoteric or difficult comer of the law; it was an ignorance of general principles applicable to common activities of a solicitor in which, for the most part, Mr Moulton was regularly engaged, and it was an ignorance which he took no steps to remedy (740 - 741)." 76 Therefore, the Court held that while the practitioner's ignorance of her fiduciary obligations as a solicitor trustee was a cause for considerable concern, there was a significant difference between that case and Moulton and it held: "71 Ultimately, the rationale for striking a practitioner from the roll is not the punishment of the practitioner, but the protection of the public and the need to uphold the standards of the legal profession. And the question whether a practitioner is fit to remain in practice is to be decided at the date of the hearing: Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 171." And further: "75 In all the circumstances, we do not think it necessary to deprive the public of the services of the practitioner who is, according to several references which have been provided for her, a well respected member of the legal profession." 77 Mr Lynch stated that the Society had not established dishonesty or dishonourable conduct by the Solicitor. It had not attempted to prove that the Solicitor's declaration was deliberately false and he argued the "ATO" matter is partially explained by the fact that nobody realised that the BAS obligations arise at the end of February, and not at the end of January, and that Solicitor just didn't get the paperwork finished on time. The Solicitor conceded professional misconduct in relation to banking the deposit monies in Varvaressos but that that the other matters represented unsatisfactory professional conduct and not professional misconduct. 78 Mr Lynch asserted that the Society implied that the Solicitor's conduct was either professional misconduct in the statutory sense (Section 479(a) of the Act) or "disgraceful and dishonourable conduct". He submitted that the former requires a consideration of whether the matters were "substantial" and, if not, whether "in combination" there was a consistent failure to reach and maintain a reasonable standard of competence and diligence, while for the latter to apply it is necessary to identify similar conduct or else the conduct is "not consistent". 79 In relation to this issue, the Solicitor relies upon the decision of the NSW Court of Appeal in Xu v Law Society of New South Wales [2009] NSWCA 430. In that matter the Court held that the matters relating to a conveyancing transaction did not amount to a substantial failure to reach and maintain reasonable standards of competence and diligence as the Solicitor's conduct was not deliberate. He did not deliberately represent that he had witnessed the alleged signature of the purchaser's wife and he did not turn his mind to the matters contained in the Section 66W Certificate. He stated that, in effect, the Court accepted the Solicitor's subjective explanation for his conduct. He argued that this is significant because in Todorovic matter, the Solicitor's misapprehension regarding the classification of the monies received from the Insurer is akin to the "inadvertence" discussed by the Court in "Xu". Accordingly, the Tribunal should not find that the conduct in Todorovic comprises a substantial failure to reach and maintain a reasonable standard of competence and diligence. 80 If the Tribunal rejects the Solicitor's arguments regarding "legal costs" in Gasparre, it is necessary to determine whether his conduct constitutes a substantial failure to reach and maintain a reasonable standard of competence and diligence. Mr Lynch argued that the amount involved is $519 and that if the money had been dealt with as trust money the Solicitor would have been entitled to transfer the entire sum to his office account under Section 261 of the Act after he rendered a bill. Therefore, that matter alone could not establish a substantial failure to reach or maintain a reasonable standard of competence and diligence. 81 Mr Lynch stated that Todorovic and Gasparre are the only matters that could be considered under the statutory definition as evidencing "persistence". Therefore, if the Tribunal did not find that those separate incidences were "substantial" it could not conclude that there was "persistence" and it would have to find that the conduct is unsatisfactory professional conduct. Further, he argued that there is no evidence of disgraceful or dishonourable conduct and, with the exception of Varvaressos, the Tribunal should find that the conduct is unsatisfactory professional conduct. It was sloppy, inefficient and neglectful and negligent etc, but not reckless - with the exception of Varvaressos. 82 Mr Lynch concluded that the protection of the public does not require the Solicitor's removal from the Roll and that this was not contemplated by the Supreme Court. The orders made are comprised in Exhibit G and, in simple terms, the evidence is that since 13 June 2008 the Solicitor has complied with the terms and conditions upon which he was allowed to continue practising and there is no suggestion that since then he has engaged in conduct that requires the removal of his name from the Roll. 83 In response, in relation to Gasparre, Mr Barnes argued that the proper way to construe or characterise the sum of $519 is to view it as "trust money" on the basis that it was "transit money", namely money that the solicitor requested from his client so that he could pay Legalink. He stated that Section 243 of the Act includes "transit money", which in turn is defined as "Money received by a law practice subject to instructions to pay or deliver it to a third party other than an associate of the practice." 84 Section 257 of the Act provides that when transit money is received, the Law Practice has to pay or deliver it in accordance with the instructions received either within the period specified in the instructions, or if no period is specified, "as soon as practicable after it is received". He stated that the Society's view is that the Solicitor should have paid the money to Legalink as soon as practicable after he received it, but he failed to do so. 85 In response to the Solicitor's submission in Boreland, that he could not be compelled to become a stakeholder for the purchaser, Mr Barnes noted that the solicitor drafted the contract that contained the stakeholder provision and stated that it would have been reasonable for him to turn his mind to this scenario before he issued the contract. He could also have held the deposit money in a controlled money account. He described the Solicitor's his excuse as "lame" and described his conduct of endorsing the deposit cheque to his client's corporation, thus defeating the protection that he held out to the purchaser under the contract, as "very poor indeed". 86 Finally, Mr Barnes stated that the Society is not bound by the approach that adopted in any previous matters, such as those of Lee and Hannam and that the decision in Hannam does not support the proposition that there is no misappropriation in all cases. However, it supports a finding that a Solicitor who deposits trust monies into his office account and uses it is guilty of professional misconduct. He stated that the decision in Xu suggested that the conduct that occurred after the monies were received is unsatisfactory professional conduct, but that as the conduct continued it became professional misconduct, as the Court of Appeal stated that if the conduct was repeated then it would have no problem in finding that the Solicitor guilty of professional misconduct. That is what happened in this matter and Xu is distinguishable on its facts from this matter as this Solicitor's conduct was not isolated. Findings 87 Having considered all of the evidence and the submissions made on behalf of both parties, the Tribunal makes the following findings: 1. Complaint A (Todorovic) i.The Solicitor breached sections 253 254,255 and 260 of Act. ii.The Solicitor misappropriated trust funds. iii.The Solicitor failed to honour his written undertaking dated 11 July 2006 to Messrs J M Crestani & Associates, Solicitors. iv.The Solicitor misled Messrs J M Crestani & Associates, Solicitors by his letter dated 17 July 2006. v.The Solicitor misled Mr Todorovic's Tutor, Mr J Todorovic, by his letter dated 17 July 2006. vi.The Solicitor failed to honour his written undertaking dated 31 October 2006 to Ms Sue Radd. vii.The Solicitor is guilty of unsatisfactory professional misconduct, on the basis that his conduct was sloppy, inefficient and neglectful and negligent et cetera, but was not reckless, such that he is not guilty of professional misconduct. 2. Complaint B (Gasparre) i.The Solicitor breached sections 253, 254, 255 and 260 of the 2004. In this regard, the Tribunal is satisfied that the sum of $519 received by the Solicitor constitutes "transit money" for the purposes of Section 243 of the Act and it is therefore not necessary to consider the alternate classification proffered by the Solicitor. ii.The Solicitor misappropriated trust funds. iii.The Solicitor is guilty of professional misconduct. 3.Complaint C (Boreland) i.The Solicitor breached sections 253, 254 and 255 of the Act, 2004. ii.The Solicitor is guilty of professional misconduct. 4.Complaint D (Varvaressos) i.The Solicitor breached sections 253, 254, 255 and 260 of the Act, 2004. ii.The Solicitor misappropriated trust funds. iii.The Solicitor breached Rule 12 of the Revised Professional Conduct and Practice Rules 1995 by borrowing money from Varvaressos. iv.The Solicitor is guilty of professional misconduct. 5.In relation to his Application for Renewal of his Practising Certificate for the year ending June 2008 i.The Solicitor misled the Society. ii.The Solicitor made a false declaration. iii.However, the Solicitor's conduct was the result of inadvertence and was sloppy, inefficient and neglectful and negligent et cetera. However, there is no evidence of recklessness and he is therefore guilty of unsatisfactory professional conduct, but not professional misconduct. 6. Complaint F (ATO) i.The Solicitor failed to honour his written undertaking dated 13 December 2007 to the Law Society. ii.However, the Solicitor's conduct was the result of inadvertence and was sloppy, inefficient and neglectful and negligent et cetera. However, there is no evidence of recklessness and he is therefore guilty of unsatisfactory professional conduct, but not professional misconduct. 88 The Tribunal must determine the issue of the Solicitor's fitness for practice at the time of the hearing of this Application and it is a matter of record that the time for determination is approximately nineteen (19) months after the Orders made by Hidden J in the Supreme Court of NSW. These required the Solicitor to put in place a regime aimed at preventing any repeat of the conduct that is the subject of the current Application. The Solicitor was required to open a Trust Account and to maintain to the satisfaction of the Society (to be proved by the production and submission of certain specified reports), as well as undertaking specific educational and training courses to improve his knowledge and understanding of his obligations as a Legal Practitioner. 89 The evidence indicates that the Solicitor has complied with those orders to date, with the exception of a delay in producing and submitting the first of the required reports, and the Tribunal notes that there is no evidence of any complaints against the Solicitor after those orders were made. It also notes the Solicitor's evidence that he has established a separate bank account for his legal practice, which has an approved overdraft facility, and that this is drawn on as and when required. 90 For these reasons, the Tribunal is comfortably satisfied that the Solicitor is not permanently unfit to practise as a Legal Practitioner and that the protection of the public does not warrant his removal from the Roll of Legal Practitioners. Orders 91 Accordingly, the Tribunal makes the following orders: 1.That George John Mavrakis be publicly reprimanded and that this reprimand be published in the Register maintained by the Legal Services Commissioner pursuant to the Act. 2.That George John Mavrakis be fined the sum of $3,000. 3.That the practising certificate issued to George John Mavrakis be subject to the following conditions: "(i) He shall maintain a Trust Account while practising as a sole practitioner, principal or Director of an Incorporated Legal Practice. (ii). He will conduct such Trust Account at all times in accordance with the requirements of the Legal Profession Act 2004 and the Legal Profession Regulation 2005 or such other regulatory or statutory requirements as may govern the conduct of solicitors' Trust Accounts. (iii). For the period up to and including 30 June 2012, he shall retain, at his expense, an accountant acceptable to the Law Society of New South Wales, and is to ensure that such accountant furnish to the Law Society of New South Wales not later than 21 August, 21 November, 21 March and 21 May in each year a report in which the accountant: (a) Confirms substantial compliance by the Plaintiff with all statutory or regulatory requirements governing the conduct of Trust Accounts; and (b) Details any apparent contraventions of or departures from any such statutory or regulatory requirements; Confirms that all Business Activity Statements have been duly completed and lodged by the required dates therefore; and (c) Confirms that all amounts required to be paid or remitted by the Plaintiff for contributions to Employee Superannuation and PAYG and PAYE tax and GST have been paid or remitted by the due dates therefore; and (d) Details any apparent contraventions or departures from the obligations of the Plaintiff in relation to the lodgement of Business Activity Statements and the payment or remittance of superannuation contributions, PAYG and PAYE tax and GST. 4.That George John Mavrakis is permitted to continue practising as a Solicitor on the condition that he shall within 14 days of the date of this decision provide the Society with the following irrevocable written undertakings: a)That he will undertake a course in Ethics that is approved by the Society that commences either prior to 31 May 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 30 November 2010; and b)That he will on and from the date of his undertakings participate in the Senior Solicitors Program and accept mentoring by a Senior Solicitor nominated by the Society for a period of no less than three (3) years from the date of this decision and to confer frequently and co-operate with that Senior Solicitor in the conduct of his program. The costs of his participation in this program are to be borne by the Solicitor. In the event of, and upon any default in the satisfaction of any of the undertakings required by Order 4 above, George John Mavrakis' Practising Certificate shall be suspended forthwith and shall remain so for the duration of the default. 6.George John Mavrakis shall pay the Society's costs of and incidental to these proceedings, as agreed or assessed. 11/05/2010 - Order 3(iii) amended from 2010 to 2012 - Paragraph(s) Order 3(iii) 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.