The Legal Services Tribunal of New South Wales CITATION : Mark Christopher Gibbins [1994] NSWLST 12 PARTIES : Mark Christopher Gibbins FILE NUMBER(S) : of 1993 CORAM: Mr A. Martin (Presiding Member) - Ms S. Hale - Mr I. Ferguson CATCHWORDS: Cancellation of practising certificate - Professional Misconduct - forgery - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - make false statement :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 12/15/1994 LEGAL REPRESENTATIVES: Mr N. Nicholls instructed by Mr L.W. Pierotti (Mr M. Watts) for the Law Society of NSW. Mr G. Lindsay with Mr M. Herschderfer instructed by Messrs Lloyd & Lloyd, for the Solicitor. JUDGMENT: The solicitor submitted to the Office of State Revenue a contract with a substituted first page bearing a false date. When the Society made inquiries about the matter, he deliberately misled the Society with his initial explanation that it had been agreed with the vendor's solicitor that the contract be exchanged again and that by mutual agreement an earlier contract had been terminated. Solicitor was found guilty of professional misconduct and fined $12,000. THIS COMPLAINT WAS MADE TO THE LEGAL PROFESSION Disciplinary Tribunal pursuant to a resolution of the Law Society of New South Wales ("the Law Society") on 17 March 1994 that Mark Christopher Gibbins ("the Solicitor") may be guilty of professional misconduct. The Complaint was filed on 25 May 1994 and the Legal Services Tribunal ("the Tribunal") heard and determined the Complaint under the transitional provisions of the Legal Profession Reform Act 1993 and its Regulations. Particulars of the Complaint are: 1. The Solicitor produced to the office of State Revenue a document for stamping which he knew bore a false date. 2. The Solicitor misled the Law Society. In 1988 the Solicitor was employed and was an associate of a law firm then known as E.R. Stack & Sons and now known as Stacks - the Law Firm of 207 Victoria Street, Taree ("Stacks"). Stacks acted in respect of the purchase by Illaroo Farm (Shoalhaven) Limited of a property at 26A Pierce Street, Baulkham Hills ("the Property") from a Mr and Mrs Southan ("the Vendors"). Messrs E.K. MacIntosh & Co, Solicitors, acted for the Vendors in that transaction and the Solicitor acted for Illaroo under the supervision of Mr Raymond Stack, a partner of Stacks. On 12 May 1988 the Vendors granted to Enable Enterprises Limited and/or its nominee an Option to Purchase the Property, such Option to be exercised no later than 31 May 1988. The Agreement for this Option contained the following relevant clauses: Clause 2:"The exercise of the Option shall create a contract between me and you or your nominee for the sale of the said property on the terms and conditions of the agreement for sale of land last issued under the approval of the Law Society of New South Wales and the Real Estate Institute of New South Wales". Clause 6: Special Condition 4: "Settlement is to be within 60 days from exchange of the Contracts". On 31 May 1988 the Option to Purchase the property was exercised by Illaroo as the nominee of Enable Enterprises Limited. Thereupon a Contract was created between the parties which required settlement of the purchase within 60 days of 31 May 1988. There was no form of Agreement for Sale of Land annexed to the Option Agreement and it is evident that the Vendors' solicitors and the Solicitor considered that such an Agreement be signed by their respective clients and exchanged. On about 3 June 1988 the Vendors' solicitors forwarded to Stacks a form of Agreement for Sale of Land in respect of the Property for approval and on or about 15 June 1988 this Agreement signed by Illaroo was forwarded to the Vendors' solicitors by the Solicitor. On about 23 June 1988 the Agreement signed by the Vendors and dated 31 May 1988 was forwarded by the Vendors' solicitors to Stacks. The Solicitor submitted Requisitions on Title to the Vendors' solicitors dated 28 June 1988 and replies were made by letter from the Vendors' solicitors dated 7 July 1988. On or about 15 June 1988 the Solicitor advised his client of the amount of stamp duty payable in respect of the Property. The Solicitor does not however recall at any time advising the client that unless this stamp duty was paid by 31 July 1988 a fine would also be payable. Early in July 1988 he advised the client that the stamp duty had to be paid before he sent the Transfer to the Vendors' solicitors. At that time he was told by the client that he would have a cheque within a matter of days. Shortly after 26 July 1988 the Solicitor again requested a cheque from the client for the stamp duty and his firm's costs and disbursements in the total sum of $13,000. The Solicitor was then advised the client would let him have this money prior to settlement. Thereafter the Solicitor arranged to settle the purchase and settlement took place on 5 August 1988. At the time of settlement the client had not paid any moneys towards the sum of the $13,000 which the Solicitor had requested and consequently the Solicitor did not have the Contract stamped. On 9 September 1988 the sum of $13,315.26 was transferred from the trust account ledger of Stacks in the names of Illaroo from Kennedy and Hujan (a separate transaction in which the Solicitor acted for Illaroo) to the trust account ledger in the name of Illaroo from Southan. On the same day a trust account cheque was drawn in favour of the Office of State Revenue for $7,241.50 by way of payment of stamp duty on the Contract for the purchase of the property. On a date which the Solicitor cannot recall between 2 and 9 September, his secretary, on his instructions, typed a new front page of the Contract which had been signed by the Vendors and wrote as the date of making the Agreement the words "21st day of July 1988". This page was then substituted for the original first page in the Contract and forwarded to the Office of State Revenue for stamping together with the trust account cheque for $7,241.50 and the Transfer executed by the vendor to be duly marked as stamped. In due course the Office of State Revenue returned to the Solicitor the stamped Contract and the marked Transfer. The Solicitor gave evidence orally and by Statutory Declaration. In his Statutory Declaration of 27 July 1994 he declared, "There was and is no excuse for my misconduct which I reiterate was fraudulent and dishonourable. I should have had at all relevant times the fortitude to inform both Illaroo and my employers of the fact that a fine would have to be paid on the Contract". By letter dated 13 October 1993 to Mr Maurie Stack of Stacks, the Law Society sought answers to a number of questions in respect of the purchases by Illaroo of properties at Baulkham Hills in respect of which Stacks acted. One of the questions asked was: "4. What was the date of the exchange of Contracts in respect of 26A Pierce Street Baulkham Hills?" The Solicitor in his Statutory Declaration states that he answered this question as follows: "The Contract for the purchase of 26A Pierce Street Baulkham Hills was exchanged on or about 23 June 1988. However, the Contract was not dated by the vendors' solicitor the correct date but was dated 31 May 1988. This fact was noticed by me at some time after the exchange of Contracts and it was agreed with the vendors' solicitor that Contracts be exchanged again and the actual date of exchange be noted on the Contract. At the time this seemed preferable to simply amending the date on the front of the Contract, because a Contract with an amended date when submitted to the Stamp Duties Office will automatically raise requisitions. Contracts were subsequently exchanged on 21st July 1988 with the vendors' solicitors and by mutual agreement the earlier Contract with the incorrect date was effectively terminated. The Contract with the correct date was subsequently marked with stamp duty on 9 September 1988." The Solicitor admitted that the statements "that it was agreed with the Vendors' solicitors that Contracts be exchanged again with the actual date of exchange to be noted on the Contract, that the Contracts were exchanged again on 21 July 1988 and by mutual agreement the earlier Contract with the incorrect date was effectively terminated", were false and, furthermore, that he shamefully and deliberately misled the Law Society in answering the question posed by paragraph 4 of the letter of the Law Society of 13 October 1993. The explanation given by the Solicitor in making these false statements to the Law Society was, he could not bring himself to tell his employers that not only had he acted fraudulently in respect of the Office of State Revenue but that he had also lied to Maurie Stack when he showed him the letter of 13 October 1993 from the Law Society. The Solicitor admitted to the Tribunal that his conduct amounted to professional misconduct. The Tribunal finds the action and conduct of the Solicitor to be disgraceful and dishonourable and amounting to professional misconduct. The evidence as to the character and integrity of the Solicitor is impressive. It is contained in the sixteen Statutory Declarations submitted to the Tribunal. Fourteen of these Statutory Declarations were made by solicitors practising in the Taree district. The Solicitor was admitted as a solicitor on 8 February 1980. Since late 1980 he has been employed by his present employers, Stacks, at Taree. He is married and lives with his wife and his three young children. He is an Elder of the Manning Valley Church of Christ and a Director of the Bushland Place Nursing Home, Taree. The Tribunal, having found the Solicitor guilty of professional misconduct has to consider the orders that it should make as a consequence. The Law Society has requested, and Counsel for the Solicitor has submitted, that the imposition of a monetary penalty be the appropriate order for the Tribunal to make. The Tribunal is of the opinion that this is not a case where, in order to protect the public an order should be made for the name of the Solicitor to be removed from the Roll, or suspending his right to practise for a period. To the contrary, the Tribunal finds that the Solicitor is a fit and proper person to continue to practise as a legal practitioner. However, the Tribunal regards the Solicitor's misconduct of a severity which calls for the imposition of a substantial fine. The Tribunal therefore makes the following orders: 1. That the Solicitor pay a fine of twelve thousand dollars ($12,000.00) within sixty days from the date of these orders. 2. That in default of compliance with Order 1 hereof, the Solicitor's Practising Certificate be cancelled and that a Practising Certificate not thereafter be issued to the Solicitor until he has complied with such order. 3. That the Solicitor pay the costs of the Society, such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court. 4. That in respect of Order 3 hereof either party to have liberty to apply. 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.