The Legal Services Tribunal of New South Wales CITATION : Dennis James Newby [1993] NSWLST 17 PARTIES : DENNIS JAMES NEWBY FILE NUMBER(S) : of 1993 CORAM: Mr C. Robison(Presiding Member) - Mr N. Reidy - Mr P. Boesenberg Professional Misconduct - fail to act honestly - Professional Misconduct - fail to keep accounts - Professional Misconduct - misappropriate trust moneys/moneys :- misappropriation of funds cancellation of practising certificate CATCHWORDS: theft and trust account deficiencies LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Ex parte Macaulay (1930) 30 SR (NSW) DATES OF HEARING: DATE OF JUDGMENT: 10/02/1993 LEGAL REPRESENTATIVES: Mr I. Wales (instructed by Mr L.W. Pierotti, Solicitor), appeared for the Council of the Law Society of New South Wales. There was no appearance by, or on behalf of, Mr Newby. JUDGMENT: This is a complaint brought by the Council of the Law Society of New South Wales ("Council") of its own motion under Section 135 of the Legal Profession Act 1987 ("the Act"). Section 135 of the Act empowers that Council to make a complaint to this Tribunal against any legal practitioner "if it appears to the Council that the legal practitioner may be guilty of unsatisfactory professional conduct or professional misconduct". The complaint relied upon by the Council is dated 24 June 1993 ("the Complaint") and seeks the following orders:1. that the name of the legal practitioner be removed from the Roll of Solicitors; and 2. that the solicitor [sic] pay the costs of and incidental to these proceedings. The particulars on page 1 allege that "the solicitor is not of good character and is not a fit and proper person to remain on the Roll of Solicitors", and this particular is supplemented by five further particulars on page 3. Those particulars record: [] misappropriation of funds by the solicitor leading to the appointment of a receiver to trust property of the solicitor in Victoria; [] the cancellation of the solicitor's practising certificate by the Law Institute of Victoria on 21 November 1990; [] certain guilty pleas by the solicitor in the Victorian County Court on 12 December 1991 to multiple counts of theft and trust account deficiencies; [] a resolution of the Law Institute of Victoria on 20 February 1992 to apply to the Supreme Court of Victoria for an order striking the name of the solicitor from the roll of barristers and solicitors in that state; and [] an order made on 26 May, 1992 by Mr Justice Gobbo in the Supreme Court of Victoria at Melbourne ordering that the name of the solicitor be struck off the roll of practitioners of the Supreme Court of Victoria. Mr Newby is thus variously referred to as "the legal practitioner" and "the solicitor". During the hearing, Mr Louis William Pierotti, a solicitor employed by the Complainant, gave evidence that Mr Newby had been admitted to practice as a solicitor in New South Wales in March 1977 but had not renewed his practising certificate in New South Wales since 1985. He is therefore a "legal practitioner" for the purposes of this Tribunal pursuant to section 123 of the Act. A copy of the Complaint and the particulars was served personally or the legal practitioner by Mr Pierotti on the 30 June 1993. The complaint disclosed a mention date before the Registrar of the 27 July 1993, and made it clear that orders might be sought against the legal practitioner in his absence. At the mention on 27 July there was no appearance by, or on behalf of, the legal practitioner. The Acting Registrar and Mr Pierotti agreed upon a timetable and the complaint was stood over for hearing until Monday, 20 September 1993 at 10.00 a.m. On Friday, 17 September 1993, the legal practitioner sent a letter dated that day to the Registrar of the Tribunal by facsimile. The text of that letter was as follows:"The Registrar 17.9.93Legal Profession Disciplinary Tribunal65 Elizabeth StreetSydney NSW 2000Fax: 233 3283 Dear Sir RE: D.J. NEWBY DT14/93 I refer to the above matter and to the hearing on the 20th instant next. I confirm that I will not be putting further evidence before the Tribunal hearing. Further I have no objection to the matters moved or to the Orders sought. I advise that I will not be attending on Monday and I have no objection to the matter proceeding in my absence. Yours faithfully DENNIS NEWBY314 Moore Park Road Paddington" (Sgd) The Complaint came on for hearing on Monday 20 September 1993. Mr Newby's name was called shortly after 10.00 am on that day. Consistent with his letter of the preceding Friday, there was no appearance by him or on his behalf. Mr Wales of Counsel appeared for the Council as Complainant. Mr Pierotti was then sworn and gave evidence of the personal service of the Complaint upon the solicitor on 30 June 1993 and tendered a copy of the Complaint endorsed with Mr Newby's handwriting acknowledging the fact of service. The copy of the Complaint endorsed with this acknowledgment became exhibit A. Mr Newby's letter dated 17 September 1993 became Exhibit B. The essence of the Complainant's case as presented by Mr Wales was that the legal practitioner was not a person of good character and not a fit and proper person to remain on the Roll of Solicitors. However, the order appointing a receiver made by Mr Justice Marks in the Supreme ~Court of Victoria on 8 October 1990 contained in order 5 a suppression order under Section 104C(1) of the Legal Professional Practice Act 1958 (Victoria). This produced some practical problems for Mr Wales. Mr Wales could do little more than point to the copy of the Order made by Mr Justice Gobbo in the Supreme Court of Victoria on 26 May 1992 striking off the name of Dennis James Newby from the roll of practitioners of the Supreme Court of Victoria, and the "return of prisoners convicted at the sittings of the County Court held at Melbourne commencing on the 12th day of December 1991" appearing as an exhibit to the Affidavit of Andrea Elizabeth Woolhouse (a barrister and solicitor employed by the Law Institute of Victoria) and sworn on the 14 April 1992. The particulars pleaded by the Council are a little curious. Section 135 of the Act empowers the Council of its own volition to complain to the Tribunal alleging either unsatisfactory professional conduct or professional misconduct by a legal practitioner. Council pleaded neither of these alternatives expressly, choosing instead to rely upon the allegation that "the solicitor is not of good character and is not a fit and proper person". True it is that the definition of "professional misconduct" in Section 123 of the Act uses virtually the same words in paragraph (b) of that Section, but it does so in the context of conduct by act or omission "occurring otherwise than in connection with the practice of law" (emphasis added). Mr Newby's transgressions arose from the conduct of his practice in the provincial city of Portland in Victoria. We therefore cannot see how paragraph (b) can be of use to the Council. We can only assume from the Council's choice of words that it has directed its complaint really to "professional misconduct" rather than "unsatisfactory professional conduct". The definition of professional misconduct is inclusive rather than exclusive. It is, in our view, entirely appropriate to adopt a purposive interpretation of professional misconduct, and on any test a practitioner in this or any other state who has been convicted of 15 counts of theft totalling $262,000 and seven counts of trust account deficiency totalling $217,000 (aggregating in all, almost half a million dollars) cannot be a person whom either his or her professional peers or members of the public generally could accept as a fit and proper person to act as a solicitor. These were serious and unexplained offences. Mr Newby was neither a young nor an inexperienced practitioner. In reaching this view, we are fortified by the words of Street CJ in Ex parte Macaulay (1930) 30 SR (NSW) where at p.194 the Chief Justice (with whom Ferguson and Halse Rogers JJ concurred) said "where a solicitor has been proved guilty of theft he could not, unless in very exceptional circumstances, ever be allowed again to be held out to the public as a solicitor in whom confidence might be reposed". Needless to say, there were no exceptional circumstances made out by Mr Newby in this case. This leaves the matter of costs. The Council seeks an order that the legal practitioner pay its cost of and incidental to these proceedings. We will make an order for costs, but we express some surprise that the Complainant found it necessary, in the particular circumstances of this case, to brief counsel. This observation may be a factor relevant to the Taxing Officer or the Registrar in making a determination. Orders The Tribunal therefore orders: 1. That the name of Dennis James Newby be struck from the roll of solicitors of the Supreme Court of New South Wales.2. That the costs of The Law Society of New South Wales of and incidental to the Complaint be taxed by the proper officer of the Supreme Court of New South Wales as between solicitor and client and when so taxed be paid by the legal practitioner to The Law Society of New South Wales or its Solicitor, Mr Frederick John Smith. 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.