The Legal Services Tribunal of New South Wales CITATION : Bruce Walter Kirchner [1996] NSWLST 6 PARTIES : Bruce Walter Kirchner FILE NUMBER(S) : of 1995 CORAM: Mr C. Vass (Presiding Member) - Mr C. Staff - Vice Admiral I Knox :- Breach of Section 41 of the Legal Aid Commission Act Professional Misconduct Misappropriation CATCHWORDS: forgery breaches of Section 61 and 62 name removed from the Roll of Solicitors in New South Wales. LEGISLATION CITED: Legal Aid Commission Act Legal Profession Act 1987 Re Vickery (1931); CASES CITED: Law Society of the Australian Capital Territory and Brendan Lee Grosse. ; Dupal v The Law Society of New South Wales (unreported 26 April 1990 DATES OF HEARING: 20 May 1996 DATE OF JUDGMENT: 05/20/1996 LEGAL REPRESENTATIVES: Mr Wales appeared for the Law Society of New South Wales Mr S. Norrish QC for the Solicitor. JUDGMENT: The solicitor admitted to the various grounds of professional misconduct and it was ordered that his name be removed from the Roll. The solicitor was found guilty of misappropriation in a large number of matters. It was confirmed in evidence that the solicitor was a chronic gambler and had an addiction to gambling. The Tribunal stated that its primary consideration is the protection of the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. The Tribunal must also deter any other practitioner minded to behave in a like manner. On 14 April 1994 the Council of the Law Society of New South Wales (the Law Society) resolved that Bruce Walter Kirchner (the Solicitor) may be guilty of professional misconduct and that a complaint be made to the Legal Professional Disciplinary Tribunal pursuant to Section 135 of the Legal Profession Act 1987 (the Act). The Legal Services Tribunal (the Tribunal) heard and determined the complaint under the transitional provisions of the Legal Professional Reform Act 1993 and its Regulations. The grounds of the complaint are - The Solicitor was guilty of forgery. The Solicitor misappropriated moneys. The Solicitor wilfully breached Section 61 of the Act. The Solicitor wilfully breached Section 62 of the Act. The Solicitor wilfully breached Section 41 of the Legal Aid Commission Act. The evidence in support of these grounds of complaint was contained within the Statutory Declaration of Gary James Still sworn on 22 November 1994. Annexed to that Statutory Declaration is a true copy of the Receiver's reports of Darryl Kevin Swindells dated 2 February 1994, 15 March 1994 and 15 June 1994. Mr Swindells was appointed Receiver to the property of the Solicitor by order of the Supreme Court of New South Wales pursuant to the provisions of Section 92 of the Legal Profession Act 1987 on 28 January 1994. Also on 28 January 1994 the Practising Certificate of the Solicitor, formerly practising in the firm of Slattery Jurd & Company (the firm) was cancelled pursuant to Section 35(2)(b) and (g) of the Legal Profession Act. In answer to the allegations the Solicitor has filed a Reply and tendered in evidence a number of Statutory Declarations. The Reply is dated 3 February 1995 and by its terms admits all the factual allegations referred to in the Complaint other than the allegations made in relation to the matters of Day, Jackson and Cusack which the Tribunal will refer to specifically in this Determination. Forgery – Mrs Carolyn Martin The Solicitor acted for Mrs Carolyn Martin in relation to a motor vehicle accident claim and from the amount of the settlement a sum was deducted for costs and disbursements. One of the disbursements was an amount owing to Mr John Agius, Barrister in the sum of $3,700.00 but in fact the amount due on the account rendered by Mr Agius was the sum of $700.00. The Solicitor prepared for retention within his file a Memorandum of Fees due to Mr Agius in the sum of $3,700.00 and there was endorsed upon that Memorandum a "Received with Thanks" stamp. The Solicitor admits that the document was prepared by him and was a forgery. The Tribunal finds that the forgery of the Memorandum of Fees amounts to misconduct on the part of the Solicitor. Wilful breaches of Section 61 and Misappropriation Section 61 provides that if a Solicitor, in the course of practising as a Solicitor, receives money on behalf of another person the Solicitor shall hold the money exclusively for the other person, that the money so received shall be paid to the credit of a General Trust Account at a bank in New South Wales and be held in accordance with such regulations as may be in force in relation to trust money. This money shall be paid or disbursed as directed by the person on whose behalf the money is held. The section does not operate to prevent a Solicitor from withdrawing or receiving from trust money or controlled money - reimbursement for disbursements paid by the Solicitor; or money for disbursements to be paid by the Solicitor; or money due, or to accrue due, to the Solicitor for costs, if the prescribed procedure is followed. Clause 8 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 provides that "In respect of money which a solicitor withdraws or received from trust money or controlled money for reimbursement for disbursements paid by the solicitor, or money for disbursements to be paid by the solicitor, or money due or to accrue due to the solicitor for costs, the solicitor shall on receipt, or as soon as practicable after receipt, of money from which the solicitor is authorised to receive costs and disbursements, deliver to the client an outline bill unless a bill or account of the costs or disbursements has been delivered to the client before receipt of the money by the Solicitor." The clause further provides that - "A solicitor shall not withdraw trust money or controlled money in satisfaction of any costs or disbursements unless - the person for whom the money is held has authorised the withdrawal and the solicitor has delivered to the person an outline bill the solicitor has delivered to the person an outline bill together with written notice that, unless the person objects, the solicitor intends to withdraw the money and apply it towards payment of the bill at the expiration of one month and the month has expired without any objection being made." The wilful contravention of these provisions of Section 61 is professional misconduct. In this context the following statement of Maugham J (as he then was) in Re Vickery (1931) 1 Ch 572 at 583 when dealing with the concept of "wilful neglect or default" is relevant. "A person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained of or in omitting to do the act which is said he ought to have done, he is committing a breach of his duty or is recklessly careless whether it is a breach of his duty or not." The Tribunal will now deal with each of the matters that comprise the complaint. Martin The facts in relation to the Martin matter are referred to under the heading of "forgery". The Solicitor drew a cheque on the firm's office account in the sum of $3,700.00 and the cheque stub noted that the cheque was payable to Mr Agius but the cheque itself was drawn payable to cash. The Solicitor cashed the cheque and misappropriated the proceeds. The facts are admitted by the Solicitor in the Reply. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 and that this breach was wilful. Also in relation to the Martin matter a Mr Kelvin Andrews, Barrister was owed the sum of $1,350.00 for services rendered by him. That amount was shown as a disbursement in a Memorandum of Fees dated 26 May 1993 rendered to Mrs Martin. The Solicitor drew a cheque for the sum of $1,350.00 on the firm's account and the cheque butt was noted as payable to "K Andrews" and the reason for the cheque was stated to be "Counsel's fees re Martin". The cheque itself was drawn payable to cash and the Solicitor cashed the cheque and misappropriated the proceeds. The Solicitor in his Reply admitted the facts as alleged. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 and that this breach was wilful. Musgrove The Solicitor acted for Miss Musgrove in Family Law proceedings and she had paid to the Solicitor a total of $9,000.00 for fees. The Solicitor failed to pay those amounts into the firm's trust account or office account and the Solicitor admits in the Reply that he misappropriated the sum of $9,000.00. The Tribunal notes that on 20 January 1994 the Solicitor refunded to the firm the sum of $5,500.00. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 and that this breach was wilful. Jackson The Solicitor acted for Mr Jackson in relation to a motor vehicle accident and the Solicitor caused a Memorandum of Fees to be issued to Mr Jackson dated 1 October 1993 for an amount of $6,192.60. Within the Memorandum of Fees was a disbursement due to K Andrews of Counsel in the sum of $1,350.00. On 23 September 1993 the Solicitor wrote a cheque and the cheque butt showed that the Payee was "K Andrews" but the cheque itself was made payable to cash. The Solicitor admits the factual allegations and admits that he misappropriated the sum of $1,350.00. The Tribunal finds the Solicitor guilty of misappropriation. In addition the Solicitor admits that on 22 September 1993 he caused the sum of $6,192.60 to be transferred from the firm's Trust account to the firm's office account and that at that time no bill had been rendered to Mr Jackson until or on about 1 October 1993. The Solicitor alleges and the Tribunal is prepared to accept that the bill was dictated some time prior to it being sent out and that the breach of Section 61 was therefore not wilful. Jones The Solicitor acted for Mr Jones in relation to Family Law matters and prior to 30 September 1992 he was paid the sum of $1,000.00 on account of costs. The Solicitor admits that he received those moneys and that those moneys were not deposited to the firm's trust account or office account. Further on or about 8 October 1992 Mr Jones paid to the firm an amount of $1,000.00 on account of future costs and disbursements and the Solicitor caused the money to be banked into the firm's office account. The Solicitor admits that he had no instructions to do other than bank the moneys into the firm's trust account. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 and that this breach was wilful. Pritchard The Solicitor acted for Mr Pritchard in relation to a criminal matter and on 9 December 1993 Mr Pritchard paid to the Solicitor the sum of $1,100.00 on account of costs and disbursements. The Payee of the cheque was the Solicitor and the Solicitor banked the cheque into his own account with the Chatswood Branch of the National Australia Bank. The Solicitor admits the facts as alleged and that he misappropriated the sum of $1,100.00. The Tribunal finds that the Solicitor is guilty of misappropriation and of a breach of Section 61 and that this breach was wilful. Laurence In this matter the Solicitor acted for Mr Laurence in relation to a Family Law matter and on 8 October 1993 he wrote a cheque in the sum of $1,400.00. The cheque butt showed that the Payee was Mr Peter Rose of Counsel but in fact a cheque was made payable to cash and the Solicitor admits that he misappropriated the sum of $1,400.00. Also in this matter on or about 7 December 1993 the Solicitor wrote a cheque in the sum of $1,400.00. The cheque butt showed that Mr Peter Rose of Counsel was the Payee but in fact the cheque was made payable to cash and the Solicitor has admitted that the sum of $1,400.00 was misappropriated by him. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 and that this breach was wilful. Cusack The Solicitor acted for Mr Cusack in relation to his defence of proceedings brought against him by the National Mutual Life Association of Australasia Limited. A Memorandum of Fees was rendered in the matter by Mr Paul Brazier, Barrister for the sum of $690.00. On or about 21 July 1993 the Solicitor drew a cheque on the firm's office account for the sum of $690.00. The cheque butt showed that the Payee of the cheque was the New South Wales Bar Association but in fact the cheque was made payable to cash and the sum of $690.00 was misappropriated by the Solicitor. The Solicitor admits the allegations and the fact that he misappropriated the moneys. The Tribunal finds the Solicitor guilty of misappropriation. There is no evidence before the Tribunal that the Solicitor or the firm received any moneys from Mr Cusack. The Tribunal therefore finds the complaint that the Solicitor was guilty of a wilful breach of Section 61 not proved. Woods The Solicitor acted for Mr Woods in relation to a charge of unlawful violence. The Solicitor requested from Mr Woods payment of the sum of $10,000.00 on account of costs and that sum was paid by bank cheques in the sum of $4,000.00 dated 22 January 1993, $4,000.00 also dated 22 January 1993 and $2,000.00 also dated 22 January 1993. Two of the cheques, one to the value of $4,000.00 and one to the value of $2,000.00 were without the authority of Mr Woods, endorsed by the Solicitor and deposited to his personal Mastercard account. The Solicitor admits the facts as alleged. It is clear from those facts that the moneys were misappropriated The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 of the Act and that that breach was wilful. Kirchner The Solicitor acted for Mrs Kirchner in relation to certain criminal proceedings. On 30 March 1992 the Solicitor wrote out two cheques, one for the sum of $1,450.00 and the other for the sum of $350.00. Each cheque stub showed the payee to be Mr S Norrish of Counsel. In fact each cheque was drawn payable to cash and the moneys misappropriated by the Solicitor. The Solicitor admits the allegations of fact and the misappropriation of those moneys. The Tribunal finds the Solicitor guilty of misappropriation. Garrod The Solicitor acted for Ms Garrod in relation to certain Family Law matters. On 23 June 1993 she paid to the Solicitor $2,000.00 by bank cheque drawn on her St George Bank Account. On 10 September 1993 she paid to the Solicitor $2,000.00 by cheque drawn on her St George Bank account. Neither of the cheques were banked into the firm's trust account or office account. The Solicitor admits that the moneys were misappropriated by him. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 of the Act and that that breach was wilful. Martin On 28 June 1993 the Solicitor drew a cheque on the firm's office account in the sum of $1,397.00. The cheque stub showed the Payee as "Hancock Alldis & Co" but the cheque itself was made payable to cash. The sum of $1,397.00 was misappropriated by the Solicitor. The Solicitor admits the facts as alleged and the misappropriation. The Tribunal notes that subsequently on or about 20 July 1993 he paid the sum of $1,397.00 to Hancock Alldis & Co from his own funds. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 of the Act and that that breach was wilful. Wylie The Solicitor acted for Mrs Wylie in relation to certain Family Law matters. On or about 9 November 1993 Mrs Wylie gave to the Solicitor a cheque in favour of the Solicitor for the sum of $1,000.00 on account of costs and disbursements. The Solicitor deposited that cheque into a personal account with the Commonwealth Bank. It is clear that the moneys were misappropriated by the Solicitor. The facts in relation to the allegation were admitted by the Solicitor. The Solicitor had no instructions to deal with the funds other than to deposit them in the firm's trust account. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 and that this breach was wilful. Estate of the late Andrew J Sullivan In this matter the Solicitor acted for Mrs Mary Sullivan in relation to the Estate of her late husband. By cheque dated 23 May 1993 drawn on the St George Bank the sum of $960.00 was paid to the Solicitor. The cheque was not banked to either the Solicitor's office account or the trust account. The Solicitor admits that the sum of $960.00 was misappropriated by him. The Tribunal finds the Solicitor guilty of misappropriation and of a breach of Section 61 of the Act and that that breach was wilful. Day In this matter the Solicitor acted for Mr Day in a number of matters and amounts of money not less than the sum of $7,500.00 were paid to the Solicitor by and on behalf of Mr Day. The sum of only $4,950.00 was deposited into the firm's office and trust account. The evidence of the Receiver is that on 4 June 1991 the Solicitor sent a Statement to Mr Day summarising amounts received from Mr Day and how they had been allocated. The total amount shown on this Statement as received from the client was $7,500.00. That amount exceeds the amounts banked to the office and trust accounts by $2,550.00. The Receiver in his report indicated that Mrs Day advised him that Mr Day had paid to the Solicitor various amounts of cash between 14 September 1990 to 3 April 1991 but she was not able to state the actual amount paid. The Tribunal notes in relation to the sum of $4,950.00 that apart from the sum of $50.00 the amount was paid by two cheques each for the sum of $2,000.00 and one cheque for the sum of $950.00. Clearly then there is an amount of cash missing. Mr Norrish in his address said - "In respect of the allegation concerning the matters of Day there are two aspects. There is the issue of the misappropriation of moneys. The Solicitor simply asserts that he did not misappropriate moneys. There are moneys not accounted for, having regard to the reconciliation which appears in the report of Mr Swindells. One matter that ought to be raised about the matter of Day insofar as the misappropriation of moneys is concerned, is that while there is no record of the receipt of moneys in the sum of something like $2,500.00, just in excess of $2,500.00, the reality is that the shortfall between the record of moneys received and the true situation in terms of moneys received was revealed by the Memorandum of Fees sent out by the solicitor in which he acknowledged the receipt of the sum of $7,500.00 from the clients, they having indicated they paid moneys in both cash and cheque for the legal services provided." No reasonable explanation has been given by the Solicitor as to the whereabouts of the missing $2,550.00 and as it or most of it was paid to him in cash we can only find that those funds were misappropriated by him. The Tribunal finds the Solicitor guilty of misappropriation and guilty of a breach of Section 61 and that the breach was wilful. Further on or about 18 September 1990 there was paid to the Solicitor on behalf of Mr Day a cheque for the sum of $950.00 and that cheque was deposited to the firm's office account and the Solicitor had no instructions other than to bank the money to the firm's trust account. The Solicitor has admitted a breach of Section 61 and that that breach was wilful. The Tribunal finds the Solicitor guilty of a breach of Section 61 and that that breach was wilful. Nagi The Solicitor acted for Mr Nagi in relation to a charge of misconduct before the Police Tribunal. On 23 February 1993 Mr Nagi paid the sum of $5,000.00 to the firm. The Solicitor caused $3,500.00 to be banked to the Bexley Office Account and $1,500.00 to be banked to the Bexley trust account. As to the sum of $3,500.00 the Solicitor had no instructions from Mr Nagi to do otherwise than to bank the money into the firm's trust account. At the hearing the wilful breach of Section 61 of the Act was admitted. The Tribunal finds the Solicitor guilty of a breach of Section 61 and that that breach was wilful. Koutrodimos The Solicitor acted for Mr Koutrodimos in relation to Family Law matters on or about 17 December 1992 Mr Koutrodimos paid to the firm the sum of $1,000.00 and the Solicitor caused that money to be banked to the firm's office account. The Solicitor had no instructions other than to deposit the money to the firm's trust account. The Solicitor has admitted that he has breached Section 61 of the Act and that the breach was wilful. The Tribunal finds that the Solicitor has breached Section 61 and that that breach was wilful. Laurence Further in relation to the matter of Laurence on 6 January 1993 Mr Laurence by cheque drawn on his company Allaw Field Service paid $5,000.00 to the firm on account of costs and disbursements. The cheque was banked to the firm's office account at a time when no fee account had been issued to Mr Laurence. Additionally on 5 March 1993 Mr Laurence by cheque drawn on his company Allaw Field Service paid $5,000.00 to the firm which cheque was banked to the firm's account. Further on 15 April 1993 the sum of $10,000.00 was paid by Mr Laurence to the firm on account of costs expended and in relation to future anticipated costs and those moneys were banked into the firm's office account. The Solicitor has admitted that in relation to these allegations he has breached Section 61 of the Act and that the breach was wilful. The Tribunal finds that the Solicitor has breached Section 61 and that that breach was wilful. Chayna The Solicitor acted for Mrs Chayna in relation to certain matters and the following amounts were received by the Solicitor and banked into the firm's office account. Those amounts were - (a) 3 December 1990 $5,000.00 (b) 18 December 1990 $2,000.00 (c) 30 December 1991 $5,000.00 No account had been rendered to Mrs Chayna at the time of the receipt of the moneys and the Solicitor had no authority other than to bank the moneys into the firm's trust account. In addition a number of transfers were made from the firm's trust account to the firm's office account when amounts were not owed by the client and where no authority existed for the transfer. They were - (a) 13 June 1991 $1,020.00 (b) 11 October 1991 $1,511.80 (c) 22 November 1991 $4,000.00 (d) 6 December 1991 $1,232.80 (e) 14 October 1993 $4,000.00 (f) 10 November 1993 $3,117.00 Further on or about 20 December 1991 there was paid on behalf of Mrs Chayna the sum of $2,000.00 and that amount was not deposited to either a trust account or to the firm's office account. In relation to each of the amounts the Solicitor has admitted a breach of Section 61 and that that breach was wilful. The Tribunal finds the Solicitor guilty of a breach of Section 61 and that the breach was wilful. Pritchard On or about 17 December 1993 Mr Pritchard paid to the Solicitor a cheque for the sum of $600.00 on account of costs and disbursements and that cheque was banked to the firm's office account and the Solicitor had no instructions other than the bank the cheque to the firm's trust account. The Solicitor has admitted a breach of Section 61 of the Act and that that breach was wilful. The Tribunal finds that the Solicitor has breached Section 61 and that breach was wilful. Howsin The Solicitor acted for Mr Howsin in relation to certain matters and on 11 February 1993 Mr Howsin paid to the Solicitor the sum of $300.00 in cash. The moneys were not banked into the firm's trust account or office account and the Solicitor had no authority to deal with the money other than to deposit it into the firm's trust account. The Solicitor has admitted a breach of Section 61 of the Act and that that breach was wilful. The Tribunal finds that the Solicitor has breached Section 61 of the Act and that the breach was wilful. Wilful Breaches of Section 62 Section 62 requires (inter alia) a Solicitor to keep in the case of trust money accounting records that disclose at all times the true position in relation to money received by the Solicitor on behalf of another person and that those records be kept in a manner that enables them to be conveniently and properly audited and in such way as the Regulations require and prescribe. A wilful contravention of this section is professional misconduct. In relation to each of the matters above referred to other than the matter of Cusack the Solicitor has admitted a breach of Section 62 of the Act and that the breach was wilful. The Tribunal finds that in each of the matters other than the matter of Cusack the Solicitor has breached Section 62 of the Act and that the breach was wilful and in the circumstances finds that the Solicitor is guilty of professional misconduct in each of those matters. In the matter of Cusack the complaint that the Solicitor has breached Section 62 of the Act has not been proved. Breach of Section 41 of the Legal Aid Commission Act The one remaining matter is the complaint that the Solicitor has committed a wilful breach of Section 41 of the Legal Aid Commission Act. Section 41 of that Act provides that a legal practitioner shall not except with the approval of the Commission demand or receive any money from a legally assisted person in respect of the work assigned by the Commission to the private legal practitioner on behalf of the legally assisted person. In the matter of Rodney Day certain of the circumstances have been referred to earlier in this Determination. Mr Day was committed for trial during April 1991 and after that date an application was made to the Legal Aid Commission of New South Wales for Legal Aid. The application was successful and Legal Aid was granted in February 1992. The Legal Aid grant included a specific exclusion for travel costs associated with the trial i.e. Legal Aid would not cover travel costs. By letter dated 30 April 1992 the Legal Aid Commission also confirmed that there was no authorisation under the provisions of Section 41 of the Legal Aid Commission Act that Mr Day may personally pay the travel costs of Mr Kirchner. Mr Kirchner acted for Mr Day in a matter before the Victims Compensation Tribunal and on 14 April 1992 $16,834.00 was received from that Tribunal as settlement of the claim by Mr Day. The amount was banked into the Slattery Jurd & Co Trust account on 14 April 1992. An agreement appears to have been made between Mr Kirchner and Mr Day that $2,000.00 of those settlement moneys would be taken by Slattery Jurd & Co to cover Mr Kirchner's travel and accommodation costs during the trial on the criminal charges. On 14 April 1992 $2,000.00 was transferred from the Slattery Jurd Trust account to the Slattery Jurd & Co Bexley Office account. Mr Day was found guilty of sexual assault during April 1992 and he requested Senior Counsel be appointed to conduct his sentencing hearing and Mr Edwin O'Loughlin qc was engaged. Mr Day's Legal Aid grant was still valid at that time. However the Legal Aid Commission by letter dated 23 July 1993 indicated that it would not be responsible for the payment of Mr O'Loughlin's fees. In the circumstances Mr Day's Legal Aid grant covered all legal costs in relation to his trial including any sentencing procedures, the only exception being the exemption of Mr O'Loughlin's fees. Slattery Jurd & Co on 13 April 1993 issued a Memorandum of Fees under the hand of the Solicitor and the Memorandum was addressed to Mr Day and the costs in that Memorandum related to the instruction of Mr O'Loughlin in the sentencing hearing. Certain of those costs related to the sentencing hearing and are covered by the Legal Aid Certificate. The evidence of the Solicitor is that at the time of the rendering of the Memorandum of Fees he did not believe that he was in breach of his obligations under the Legal Aid Commission Act because he believed that when the client indicated that he wished a particular Barrister to be briefed without Legal Aid Commission approval the grant of Legal Aid was automatically terminated. Mr Norrish SC Counsel for the Solicitor in his address said that - "In respect of the alleged breach of Section 41 of the Legal Aid Commission it is simply put on behalf of the Solicitor that the breach was not a wilful breach. The Solicitor believed that the grant of Legal Aid had been terminated when he received instructions to brief Senior Counsel to do the sentence proceedings after the Legally Aided trial and the Memorandum of Fees that was sent to the client was clearly, in its terms directed at the issue of the payment of fees on a non-Legal Aid basis. Now, true it is, Section 41 of the Legal Aid Commission Act provides that a Private Practitioner shall not, except with the approval of the Commission, demand payment as establishing a breach of that particular section. But, in our submission, the evidence falls short of establishing that it was a deliberate breach of the Act and, in fact there was no evidence nor was it the fact that the Solicitor at any time made a claim on the Legal Aid Commission for Legal Aid fees in respect of the sentence proceedings which were the subject of the Memorandum of Fees of the 13 April 1993." The Tribunal is of the opinion that the breach was technical and was not wilful and in the circumstances dismisses the complaint that the Solicitor wilfully breached Section 41 of the Legal Aid Commission Act. Submissions Counsel for the Law Society referred the Tribunal to a recent decision of the Supreme Court of the Australian Capital Territory in the matter of the Law Society of the Australian Capital Territory and Brendan Lee Grosse. He referred to specific sections of the judgment dealing with the power of the Court and the proper approach to be adopted by the Court in cases such as the present matter being dealt with. In relation to those matters the following appears in the joint judgment - "It has been said over and over again by the High Court, the Supreme Courts of the State and this Court, that the object of disciplinary proceedings is the protection of the public and the maintenance of proper standards in the legal profession." Later in the judgment under the heading of "What Course Should the Court Take" it is said - "The question is whether the practitioner is fit to be held out as a member of the legal profession. We have reached the firm conclusion that he is not, and notwithstanding the great deprivation to him, this court must do its duty and the practitioner's name should be removed from the Roll. To adopt the remarks of Handley JA in Dupal v The Law Society of New South Wales (unreported 26 April 1990 at p20) '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 we would add, their partners. Sympathy for the (practitioner) 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." Counsel for the Law Society then submitted that the latter proposition "is entirely apropos, this is an unhappy case. The Solicitor says, and evidence confirms it, that he was a chronic gambler and had an addiction to gambling, but the addiction had not been overcome". Later Counsel submitted that the only order which the Tribunal could make in this case is an order striking off the Solicitor. Mr Norrish for the Solicitor submitted that in accordance with the responsibility of this Tribunal it should approach the matter in a way that is summarised in the judgment in the matter of Gross and he went on to say "We concede that the appropriate order to be made by the Tribunal is the one as indicated that the Solicitor would consent to" and in that regard Mr Norrish at the beginning of the hearing indicated that the Solicitor would consent to a strike off order. Mr Norrish also submitted there was sufficient evidence before the Tribunal for it to be satisfied that the sum of $5,500.00 has been repaid to Ms Musgrove and the sum of $3,000.00 to Ms Martin. The Tribunal is satisfied that those monies have been paid. Mr Norrish tendered on behalf of the Solicitor a report of Dr John Champion Psychiatrist dated 9 May 1996 and the history in that report indicates that the Solicitor had been gambling in the early 1970s and that his first wife died in 1976 and from that time he had been left to raise his four year old daughter as a single parent and also from that time his gambling was really out of control. Apparently he was gambling on horse races 7 days a week. The Solicitor remarried in 1978 but he continued to gamble. Dr Champion expresses the following general opinion - "In many cases the outlook is poor in that pathological gambling is associated with character defects such as anti-social personality disorder or substance abuse. In this case Mr Kirchner has no history that would suggest anything but a good personality structure that has allowed good functioning in professional and social areas except for gambling. I believe that Mr Kirchner has faced up to this disorder and has demonstrated considerable strength in his determination to gain and retain control of his disorder. It seems likely that he will succeed in this providing he is allowed to proceed with his rehabilitation." Dr Champion goes on to point out that Mr Kirchner's rehabilitation includes continuing to attend Gamblers Anonymous and continuing with psychotherapy and then Dr Champion says that the Solicitor "recognises that because of his previous problems he will remain unsuitable for any position in the practice of law which allows access to funds." It is the opinion of the Tribunal that the Solicitor's pathological gambling has led to the misconduct complained of in these proceedings. Solicitor's history He completed his studies in 1979 and then held a number of Public Service positions. He resigned from the Public Service in 1980 and was employed in a firm of Solicitors in Hurstville and later became a partner in that firm. He left that partnership in 1988 and commenced with Slattery Jurd & Co initially as an employed Solicitor and became a Partner until he left that partnership in January 1994 when his Practising Certificate was cancelled. Conclusion The Tribunal has found the Solicitor guilty of professional misconduct in a large number of matters and as stated before the Tribunal in a case such as this has as its primary consideration the protection of the public by preventing a person unfit to practise from holding himself or herself out to the public as a Legal Practitioner in whom members of the public might repose confidence. The Tribunal must also act so as to deter in the future any other practitioner minded to behave in a like manner. In the present case the evidence clearly discloses that the Solicitor is unfit to practise and that he should be prevented from so doing. The appropriate order is therefore that his name be removed from the Roll. Orders The Tribunal orders that - The name of Bruce Walter Kirchner be and the same is removed from the Roll of Solicitors in New South Wales. The costs of the Law Society be paid by the Solicitor, such costs to be assessed as if assessed by a Supreme Court Cost Assessor on a solicitor/client basis. If the parties cannot agree on the quantum of those costs either party to have liberty to apply to the Tribunal to determine the amount of those costs. 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.