The Legal Services Tribunal of New South Wales CITATION : Peter Countouris [1996] NSWLST 13 PARTIES : Peter Countouris FILE NUMBER(S) : of 1995 CORAM: Mr A. Martin (Presiding Member) - Mr W. Macquarie - Dr P.O. Miller A.M. CATCHWORDS: Professional Misconduct - make false statement - Professional Misconduct - fail to act honestly :- false date on the trader's bill of sale LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Foreman case DATES OF HEARING: 19 September 1996 DATE OF JUDGMENT: 12/09/1996 Mr D. Robinson of counsel, instructed by Gary James Still for the Council of the Law Society of New South Wales. LEGAL REPRESENTATIVES: Mr G.C. Lindsay S.C. instructed by Holman Webb, for the Solicitor JUDGMENT: The solicitor acted for personal friends in a transaction in which he was personally involved as landlord and a provider of finance to his clients. In so acting for his clients he inserted a false date on the trader's bill of sale between himself and his clients; inserted a folio containing two clauses into the trader's bill of sale which materially altered that instrument and then caused the instrument to be registered in this state; inserted a date for repayment into a loan agreement between himself and his clients which materially altered that agreement; misled the Society in its investigation by drafting a false and misleading response to the complaint and falsifying file notes inserted in the file and produced to the Society on request; and misled the Society in a telephone conversation with an investigating officer from the Society. The solicitor was also a party to the false claims of his partner, Angelo Andresakis (refer LPDR no. 2. 1997) and procured his partner into making a false affidavit in relation to the execution of the bill of sale. The solicitor also failed to adequately explain the trader's bill of sale and the loan agreement to his clients. The Tribunal found the solicitor's conduct in relation to these documents careless in the extreme. The solicitor admitted his conduct. The Tribunal compared his conduct with that of Carol Foreman however drew distinctions between the conduct of the solicitor and that of Carol Foreman and determined not to remove the solicitor's name from the Roll. However the Tribunal held that the solicitor's conduct amounted to serious professional misconduct which was much more serious than that of Angelo Andresakis. The Tribunal marked the seriousness of this professional misconduct with the administration of a public reprimand; imposition of a substantial fine in the sum of $20,000; the cancellation of the solicitor's practising certificate; an order that the practising certificate not be issued to the solicitor for a period of 2 years; during the period of 2 years cancellation the solicitor must not engage in any legal practice either as an employee, partner, consultant, associate or otherwise without the written consent of the Society; the solicitor must undertake and complete the required number of mandatory continuing legal education units during the 2 year period of cancellation; costs. Information By an information dated 12 February 1996 filed in the Tribunal on the same date, the Council of the Law Society of New South Wales (the Society) complained that Peter Countouris (the Solicitor) was guilty of professional misconduct. The grounds on which the complaint was originally made were amended, by consent, on the hearing date so that the grounds on which the complaint proceeded were: "(i) The legal practitioner inserted a false date on a Traders Bill of Sale and a Loan Agreement and caused those documents bearing the false date to be submitted to the Stamp Duties Office and further caused the Traders Bill of Sale to be lodged at the Office of the Registrar General for registration. (ii) The legal practitioner inserted into the Traders Bill of Sale a folio containing clauses 25 and 26 thereby materially altering the instrument and then causing that instrument to be registered containing clause 25 and 26. The legal practitioner inserted into the Loan Agreement a date for repayment of the principal of the loan thereby materially altering the instrument. (iii) The legal practitioner misled the Law Society in their investigations into complaints made by Mr and Mrs Rouvellas. (iv) The legal practitioner was a party to the false claims of Angelo Andresakis to witnessing signatures to the Traders Bill of Sale and the witnessing of a Statutory Declaration in relation to the Traders Bill of Sale. (v) The legal practitioner failed to adequately explain the two documents to his clients, Mr and Mrs Rouvellas, including the stamp duty liability on those documents. (vi) The legal practitioner was a party to procuring Angelo Andresakis making an Affidavit on 31 March 1992, knowing that the Affidavit falsely asserted that: (a) the Bill of Sale was given on 31 March 1992; and (b) that Angelo Andresakis was present and did see Peter and Dihlia Rouvellas the Mortgagors in the said Bill of Sale and whose signature "P Rouvellas & Dihlia Rouvellas" is subscribed thereto sign and execute the same at Parramatta on the said 31st March 1992 at 9 o'clock in the forenoon of that day and that the said Mortgagors at the time of the execution of the said Bill of Sale resided at and still reside at 37 Ivy Street, Greenacre and were then and still are by occupation Shop Keepers; and then caused that Affidavit to be submitted to the Registrar General in order that the registration of the Traders Bill of Sale be effected knowing that the contents of the Affidavit were false and that the events and matters described therein did not occur to the legal practitioner's knowledge." Particulars of the grounds of complaint were set out in annexure "A" to the amended information. They are: "(i) The Loan Agreement and the Traders Bill of Sale are dated 31 March 1992. Both documents were executed on or about 14 November 1991 by Mr and Mrs Rouvellas. The documents were lodged at the Office of State Revenue on or about 1 April 1992. The Traders Bill of Sale was lodged at the Office of the Registrar General on or about 3 April 1992 and registered on 21 April 1992. (ii) A folio containing clauses numbered 25 and 26 was inserted into the Traders Bill of Sale without the consent of Mr and Mrs Rouvellas after Mr and Mrs Rouvellas had placed their signatures on the Traders Bill of Sale. The date 8 December 1992 was inserted into the Loan Agreement without the consent of Mr and Mrs Rouvellas and after Mr and Mrs Rouvellas had placed their signatures on the Loan Agreement. (iii) In response to enquiries of the Law Society, the legal practitioner wrote letters dated 23 December 1993 and 7 March 1994 which were false and misleading and forwarded to the Law Society file notes purporting to be genuine file notes evidencing actual events and circumstances occurring in the course of the legal practitioner's practice. (iv) The legal practitioner procured Angelo Andresakis to purportedly witness the signatures of Mr and Mrs Rouvellas on the Traders Bill of Sale and a Statutory Declaration when he knew that Angelo Andresakis had not witnessed those signatures. (v) The legal practitioner gave no proper explanation of the force and effect of the Traders Bill of Sale and the Agreement to Mr and Mrs Rouvellas and failed to advise them on their liability to stamp duty on those documents. (vi) (a) The legal practitioner filled out in his own handwriting the form of the Affidavit and thereafter asked Angelo Andresakis to swear the Affidavit. (b) The legal practitioner administered the oath or alternatively failed to administer the oath before attesting the Affidavit. (c) The legal practitioner attested the Affidavit of Angelo Andresakis knowing that the Affidavit was false in material respects." Reply In his Reply dated 13 June 1996 and by his counsel, in respect of the amended information filed on the hearing date, the Solicitor admitted that he was guilty of professional misconduct and the facts set out in the amended information. The Solicitor disputed some of the facts alleged by Mr and Mrs Rouvellas in statutory declarations made by them that were attached to a statutory declaration of Gary James Still that was tendered in evidence. Facts 1. The Solicitor was a long time friend of Mr and Mrs Rouvellas (Rouvellas). 2. The Solicitor and his wife were part owners of a shopping centre in Lane Cove. 3. Rouvellas entered into a lease of one of the shops in the shopping centre for a term of 5 years commencing 1 November 1991 with an option for a further term of 5 years. They commenced carrying on the business of a fish shop in the premises. 4. To enable Rouvellas to set up the shop the Solicitor loaned them $50,000. 5. The Solicitor subsequently loaned Rouvellas a further $10,000 in connection with the business. 6. The Solicitor prepared an agreement for loan in respect of the $50,000 loaned by him to Rouvellas. 7. The Solicitor also prepared a traders bill of sale between Rouvellas and himself in respect of the loan of $50,000. 8. The Solicitor had the loan agreement and the traders bill of sale executed by Rouvellas on 14 November 1991 when the solicitor gave Rouvellas a cheque for $50,000. 9. The loan agreement was incomplete when it was signed in that it was not dated and did not provide a date for repayment of the loan. 10. The traders bill of sale was incomplete when it was signed in that it was not dated and the signatures of Rouvellas were not witnessed on the document or on their statutory declaration endorsed on the document. In addition the traders bill of sale did not contain clauses 25 and 26. 11. After Rouvellas signed the documents and without reference to them, the Solicitor completed the loan agreement by dating it 31 March 1992 and inserting a date for repayment and also completed the traders bill of sale by dating it 31 March 1992 and inserting clauses 25 and 26. 12. Clauses 25 and 26 that were inserted in the traders bill of sale by the Solicitor without the authority of Rouvellas were in these terms: "25. The Borrower will pay to the Lender interest on the principal sum at the rate of 17 per cent per annum. The whole of the principal sum together with interest thereon shall be paid by 8th day of December, 1992. 26. This Traders Bill of Sale is collateral with Agreement for Loan dated 31st day of March, 1992 between the parties." 13. On 31 March 1992 the Solicitor requested his junior partner Angelo Andresakis (Andresakis) to witness the signatures of Rouvellas on the traders bill of sale and the supporting statutory declaration endorsed on the traders bill of sale and also requested him to sign an affidavit verifying the execution of the traders bill of sale. 14. Andresakis had not seen Rouvellas sign the traders bill of sale or the statutory declaration and an oath was either not administered by the Solicitor when Andresakis signed the affidavit verifying the execution of the traders bill of sale or if an oath was administered, the affidavit was false and known to be false by the Solicitor. 15. Andresakis also witnessed the signature of the Solicitor on the traders bill of sale. 16. When Andresakis witnessed the signatures on the traders bill of sale and the supporting statutory declaration and signed the affidavit verifying the traders bill of sale, the traders bill of sale was false in that it purported to have been signed on 31 March 1992 when it was signed on 14 November 1991 and it contained clauses 25 and 26 which were not in it when it was signed by Rouvellas. The statutory declaration signed by Rouvellas was dated 31 March 1992 when it had been signed on 14 November 1991. The affidavit verifying bore the correct date but the substance of the affidavit was wrong in that the affidavit stated that the bill of sale was given on 31 March 1992 when it was given on 14 November 1991. It also stated that Andresakis was present and did see Rouvellas sign the traders bill of sale at Parramatta on 31 March 1992 at 9 o'clock in the forenoon when he had not done so. 17. On 16 December 1993 the Solicitor received a letter dated 15 December 1993 from the Society. A copy of a letter of complaint of 7 December 1993 by Rouvellas to the Society was enclosed. The Society asked for a response to the allegations within 21 days. 18. On 16 December 1993 Andresakis also received a letter dated 15 December 1993 from the Society enclosing a copy of the complaint of 7 December 1993 by Rouvellas to the Society. 19. On or about 16 December 1993 the Solicitor created a diary note dated 31/3/92 that stated: "Loan documents executed. – $10,000 – reminded Rouvellas – Attend to stamping etc." 20. On or about 16 December 1993 Andresakis added to the false diary note the words: "- attendance on PC & P & D Rouvellas to execute T Bill – did not explain Rouvellas said they understand was for money already lent" 21. On or about 16 December 1993 the Solicitor made a false addition to a diary note dated 4/3/92 that was in the file. The false addition stated: "- he is to sign up loan documents * chase him up" Note: reference to "he" and "him" was to Rouvellas. 22. By letter dated 23 December 1993 the Solicitor replied to the Law Society in which the solicitor stated inter alia: "I deny very strongly that I tricked the complainants into signing the Traders' Bill of Sale. They signed the Traders' Bill of Sale and the Acknowledgement of Debt quite freely and voluntarily. In early March 1992 I was at the Lane Cove Centre and spoke to Mr Rouvellas about the fact that he had not paid any rent. At the same time I mentioned to him that we had to draw up some documents to evidence the fact that those moneys were owing to me. If anything happened to me there was not record of the debt. He appreciated this fact and asked me to prepare the documents. I did so and on 31 March 1992 they both attended my office. I explained the documents to them and called Mr Andresakis to come into my office and witness our signatures. This was done. The complainants were well aware as to what they signed and they did so freely and voluntarily. In conclusion I deny all allegations made by the complainants and request that the Society resolves the matter as soon as possible." 23. In response to further correspondence from the Society the Solicitor wrote a letter dated 7 March 1994 to the Society in which the Solicitor stated, inter alia: "I refer to your letter of 25 February 1994 and according to my recollection the state of events is as follows: (a):--- (b):--- (c) In early March 1992 I attended the Shopping Centre at Lane Cove and spoke to Mr Rouvellas about various matters including: (i):---- (ii) The fact that they had still not signed the mortgage documentation that I had prepared on 4 December 1991. Furthermore I wanted to include an additional $10,000.00 in the documentation which was an advance I made to them on 14 January 1992. Mr Rouvellas indicated to me to leave the documents as they were, i.e. the original $50,000.00 and that they would come and sign the mortgage documents shortly. In relation to the $10,000.00 that I advanced to them by cheque drawn on one of my personal accounts, Mr Rouvellas assured me that he would repay me immediately once he received his tax refund. To this day he has not repaid the $10,000.00. (d) The mortgage documents were prepared on 4 December 1991 and in the early part of March 1992 I brought this fact to Mr Rouvellas' attention. We had spoken about this matter a few times before March 1992 as I attend the Shopping Centre regularly. Mr Rouvellas raised no objection to sign the mortgage documents. (e) On 31 March 1992 the complainants attended my office and signed the mortgage documents. Mr & Mrs Rouvellas have alleged a great number of things and as you are aware the matter is before the District Court. I deny all their allegations and it cannot be concluded that because I advanced them the $50,000.00 on 14 November 1991, the documents must have been signed on that day. On 14 January 1992 I advanced them a further $10,000.00 by way of cheque when Mr Rouvellas asked me for further financial assistance. There were no documents drawn up to evidence this fact. I simply gave him the cheque and relied on his word that he would repay me from his taxation refund." 24. What was stated in the diary notes and in those parts of the letters to the Society that has been reproduced here were false. 25. The traders bill of sale was lodged in the office of the Registrar-General on 3 April 1993 and was registered on 21 April 1993. 26. The "mortgage documents" had been executed on 14 November 1991 and had not been prepared on 4 December 1991 and Rouvellas had not attended the Solicitor's office on 31 March 1992 to sign the mortgage documents. 27. The traders bill of sale was a second traders bill of sale. Australian Guarantee Corporation held a first traders bill of sale to secure an advance of $100,000 to Rouvellas. The solicitor's explanation In his reply dated 13 June 1996 and in his statutory declaration dated 21 June 1996 the solicitor stated, inter alia: "26.:---, I say that on or about 31 March 1992 I realised that I had not completed the Agreement for Loan and Traders Bill of Sale after the money was paid to Mr and Mrs Rouvellas, I had not lodged the documents for Stamp Duty, and I had not registered the Traders Bill of Sale. I then dated the two documents the date 31 March 1992 and I inserted clauses 25 and 26 into the Traders Bill of Sale. When I inserted these clauses I did so because I believed that the Traders Bill of Sale was incomplete and the clauses set out the terms of agreement reached between Mr and Mrs Rouvellas and myself. I requested Mr Andresakis to witness the execution of Mr and Mrs Rouvellas. Mr Andresakis had previously acted for Mr and Mrs Rouvellas and I believed he was familiar with their signatures. He also knew them and was aware of the transaction which I had engaged in with them. I then caused the documents to be lodged for stamping and subsequently caused the Traders Bill of Sale to be registered. 27. At the time I was not aware that there would be any difficulty in receiving payment of the moneys I had advanced to Mr and Mrs Rouvellas. The loan agreement did not reflect the additional sum of $10,000 which I advanced on 14 January 1992. I acknowledge that my actions were improper but I did not intend to act unfairly against the interests of Mr and Mrs Rouvellas or the Office of State Revenue. It was my intention to complete the documents and to attend to their stamping and registration. I paid the stamp duty of $141 and the registration fee. I have never relied upon the Traders Bill of Sale to enforce my claim against Mr and Mrs Rouvellas in the District Court proceedings which were commenced in 1993." In relation to the inserting of the date 8 December in the Agreement for Loan as the date for repayment of the loan of $50,000 the Solicitor stated, in his statutory declaration of 21 June 1996: "23. In answer to paragraphs 20, 21, 22 and 23 of Mrs Rouvellas' Statutory Declaration, I admit that the documents were not dated and the date 8 December was not inserted in the loan agreement when Mr and Mrs Rouvellas signed the documents. The year 1992 was typed on the Agreement when Mr and Mrs Rouvellas signed the Agreement. I inserted the date "8 December" because I understood Mr and Mrs Rouvellas and I had agreed that interest would run from 8 December 1991. The first payment was made on or about 8 January 1992." In relation to the correspondence with the Law Society that was false and misleading, the Solicitor stated in his statutory declaration of 21 June 1996: "30. I received a letter addressed to me from the Law Society, a copy of which is annexed "B" to Mr Still's First Statutory Declaration. I received this letter shortly before Christmas 1993. Angelo Andresakis received a similar letter at that time. 31. After we received our letters Mr Andresakis was extremely anxious as a result of the matters set out in the letters. I do not now recall the words spoken between us when we first discussed the letters. I recall Mr Andresakis said, "Look at what you have got me into". When Mr Andresakis spoke to me he was extremely agitated. I believe that I said, inter alia, that I was very busy, that we needed to sit down and carefully consider our response and that I would speak to him about the letter when I had more time. Despite what I said to him, Mr Andresakis did not calm down. He subsequently said to me, "I have rung Sarah Robertson at the Law Society. She told me that swearing a false Affidavit is a striking off offence". Mr Andresakis appeared to be more agitated this time than he had previously been. To the best of my recollection I said to Mr Andresakis, "I will speak to you about the response to the Law Society when I have more time". After this conversation Mr Andresakis drafted a letter to the Law Society. He then showed me this letter. I do not now recall the words spoken between us at this time. However, the effect of this conversation was that Mr Andresakis expected me to write to the Law Society in similar terms to his letter. During this conversation I indicated to Mr Andresakis that I would write a letter in such terms. Mr Andresakis is my nephew. I was concerned that I had caused him to become involved in a complaint to the Law Society as a result of my request to him to witness the signatures of Mr and Mrs Rouvellas in the circumstances referred to above. I felt extremely guilty about the circumstances in which he found himself. Stupidly, I felt compelled to write to the Law Society in terms similar to that of Mr Andresakis' response. I acknowledge that my letters dated 23 December 1993 and 7 March 1994 and my conversation with Ms Robertson on 13 July 1994 misled the Law Society. I deeply regret my conduct in misleading the Society. In doing so, I acted foolishly and out of misplaced concern for my nephew." Comments and reasons for Determination and Orders The Solicitor acted for personal friends in a transaction in which the personal interests of the Solicitor and his wife, as owners of premises occupied by Rouvellas, became intermingled, with his obligations as Solicitor, apparently acting for Rouvellas, at least in connection with an agreement for loans and a second traders bill of sale to secure a loan of $50,000 made by the Solicitor to Rouvellas. The Solicitor had an independent solicitor advise Rouvellas concerning the lease of the premises but not in respect of other documents, i.e. an agreement for loan and second traders bill of sale. The Solicitor's approach to the agreement for loan and traders bill of sale was careless in the extreme. However, as he was the lender, his carelessness was to his own disadvantage. When first drawn and signed the documents were deficient in that: Agreement for loan 1. the date for repayment was not inserted; 2. it was not dated. Traders bill of sale 1. it did not provide for a rate of interest payable by the mortgagors; 2. it did not provide for a date for repayment of the principal sum; 3. it was not made collateral with the agreement for loan; 4. it was not dated; 5. the signatures of the mortgagors were not witnessed; 6. the statutory declaration by the mortgagors was not dated or witnessed; and 7. the affidavit verifying registration copy was not sworn. The Solicitor was aware that there was a time limit for lodging of the traders bill of sale in the Registrar-General's office, i.e. 15 days after the making of the traders bill of sale (see s5C(1) & (2) Bills of Sale Act 1898. The Solicitor was aware that the traders bill of sale had to be stamped before it was lodged for registration and that by dating the documents 31 March 1992 and submitting them for stamping he misled the Office of State Revenue. About 4½ months after the Solicitor loaned the $50,000 to Rouvellas and the agreement for loan and traders bill of sale were signed, the Solicitor realised that the agreement for loan and traders bill of sale had not been completed and stamped and in the case of the traders bill of sale, registered in the office of the Registrar-General. At that stage the Solicitor could have had the documents re-typed and could have inserted the additional information in them and had them re-executed and properly witnessed, stamped and registered. Instead of having the documents re-typed and re-executed the Solicitor set about a course of conduct which amounted to professional misconduct and which involved his junior partner. By what he did the Solicitor sought to deceive Rouvellas, the Office of State Revenue and the Registrar-General. When the Solicitor discovered that he had made an error he chose to try to overcome it by deception and did not face up to the task of having to explain the error to his clients. The irony of the Solicitor's deceptive behaviour is apparently that the traders bill of sale was of no value to him as security because Australian Guarantee Corporation, which held the first traders bill of sale over the assets of the business, was entitled to more than the security was worth, when the business eventually failed. Having set about this first part of his deception the Solicitor compounded the deception by deliberately misleading the Society when it was exercising its statutory responsibility to investigate the complaint made by Rouvellas. Both the Solicitor and Andresakis received letters from the Society concerning the Rouvellas complaint on the same day, i.e. 16 December 1993. As to Andresakis' reaction to the Society's letter to him, we refer to the determination and orders of the Tribunal in the matter of Angelo Andresakis, No.4 of 1996, determination and orders delivered 18 September 1996. What Andresakis informed the Tribunal in the case against him, is not inconsistent with what the Solicitor, in this matter, said in clause 31 of his statutory declaration of 21 June 1996, already quoted. Not only did the Solicitor deceive the Society in responding to correspondence from the Society but, by the time the Solicitor made his file available to the Society 2 false diary notes had been inserted in the file. The evidence was not entirely clear as to who was the prime mover in having the false diary notes inserted but there is little doubt that the Solicitor and Andresakis both participated in the deception, arising from the false diary notes. In evidence in chief the Solicitor emphasised that he did not blame Andresakis for what happened and that he accepted the blame for what he did. He expressed the view that when he received the letter from the Society he was "numb" and "just froze". In requesting Mr Andresakis to sign an affidavit verifying the registration copy of the traders bill of sale, the Solicitor put Mr Andresakis in a very difficult position. Mr Andresakis did what the Solicitor requested but what he did was either to sign an affidavit that was false and that was not sworn or, alternatively if it was sworn, he swore upon his oath something that was false. Either way the Solicitor and Mr Andresakis engaged in conduct that was very serious indeed. The Solicitor maintained his deception of the Society until he eventually instructed solicitors to act for him whereupon, on advice from his solicitors, the Solicitor admitted the deception and the other matters alleged against him by the Society. We accept that the Solicitor is now contrite and appreciates the folly of his actions. What the Solicitor did, in misleading the Society, was that he: 1. falsely altered one diary note and made a further false diary note and supplied copies to the Society; 2. wrote two letters to the Society, that was discharging its obligations under the Legal Profession Act 1987 to investigate a complaint, knowing the letters were false and misleading; and 3. spoke to Ms Sarah Robertson, a legal officer employed by the Society in its Professional Standards Department and misled her concerning the date of execution of the agreement for loan and traders bill of sale. In the determination and orders of the Tribunal in the matter of Angelo Andresakis reference was made to the case of Law Society of New South Wales v Foreman 34 NSWLR at 408. The comments of the Tribunal in the Andresakis matter are relevant to this matter and for the sake of completeness we will repeat some of the comments made by the Tribunal in the Andresakis case, concerning the Foreman case. In the Foreman case the brief facts were: 1. Ms Foreman altered a diary entry in a way which made it appear that, on the original date she saw a client she had given the client a draft cost agreement. She had done this by destroying the time sheet on which the diary entries for that day had been recorded, prepared another time sheet showing that on the original date she had given her client the draft costs agreement, and substituting that time sheet for the one she had destroyed. 2. In costs proceedings Ms Foreman made an affidavit of discovery in which she referred to the altered time sheet and allowed it to be produced in the Family Court on subpoena and allowed the proceedings to proceed on a basis that she knew to be false and confessed only when she was found out. In simple terms, what Ms Foreman did was: 1. falsify a diary note; and 2. misled the Court. In simple terms, what the Solicitor did was: 1. falsify diary notes; and 2. misled the Society; It is very serious for a solicitor to mislead a Court and it is also serious for a solicitor to mislead the Society in the exercise of its statutory obligations to investigate a complaint. The comparison between the present case and the Foreman case cannot be ignored and unless a distinction can be made then a striking off order must be considered. In the Foreman case, Mahoney JA set out in his judgment the principles to be applied in deciding what orders should be made in discipline matters. In broad summary His Honour defined the principles as: 1. Protection of the public as the primary purpose, and not the punishment of the solicitor. 2. Protection of the public is not confined to protection against further default by the solicitor in question, it extends to protection of the public against similar default by other solicitors. 3. Publicly marking the seriousness of what the solicitor has done. His Honour stated that: "---- it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. The purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." His Honour also stated: "In deciding whether a person is a fit and proper person for this purpose, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner, or those aspects of it relevant to the office of a solicitor. A solicitor may affirm and sincerely believe that she will not offend again. But the character of the solicitor demonstrated by the offence or otherwise – may be such that no sufficient reliance can be placed upon that affirmation." "It is also, I think, relevant for the Court to take into account the effect which its order will have upon the understanding in the profession and amongst the public, of the standard of behaviour required of solicitors." In considering what orders should be made against Ms Foreman, His Honour observed: "Miss Foreman has asserted that she will not default again. What she will do in the future is one of the important matters to be assessed in this appeal. No assessment can be made with certainty; there is always the risk of error and any assessment can be made only in terms of probabilities. But an assessment must be made. To do this, it is necessary to make an assessment of her evidence and the credibility of what she has said. I have had the advantage of seeing her in evidence before the Court and I have considered carefully what she has said and what she did. These matters and the evidence generally lead me to the conclusion that I should not accept without reservation what she has said. I did not find her a witness whose evidence was frank or who faced the facts put before her and the implications of them." "In her evidence:--- she was, and appeared to be less than frank. She presents as a person of quick mind, well experienced in the law and appreciative of the inferences apt to be drawn from what she said and did. I believe that she was well aware of the fact that her conduct in altering the time sheets as she did in July 1990 would be open to the critical inferences suggested. Insofar as she has denied when questioned that she was aware of such matters, I do not accept what she said. I found her, in other matters, similarly unconvincing." "I have found portions of her evidence to be not credible and that she has not been frank in giving it. In particular, I do not accept her account of the extent of her recollection of the events of 20 October 1991." "This assessment of her credibility bears upon, inter alia, two things: her character and what she is apt to do in the future. These are, of course, related. Each of these matters, credibility, character and what Miss Foreman is apt to do in the future, has been in issue and has been canvassed in these proceedings. It is not in question but that the findings as to credibility may be taken into account in arriving at findings as to the other two matters." "I do not find that Miss Foreman will, in the future, again falsify a document of this kind. That, I think, is not the case made against her. The case for the Law Society has been put in several ways. But the suggestion has been essentially that in relation to the present matter, she is likely in the future to act in other ways which, in the sense here relevant, are unacceptable in a solicitor. In my opinion the case has been made out. I am conscious that conclusions of this kind cannot be arrived at with certainty and that the process of reasoning to such conclusions cannot be syllogistic. On such matters, the Court must form a judgment based upon what has been put before it in the particular proceedings. I have therefore reflected upon the judgment at which I have arrived in this regard. Having regard, inter alia, to the way in which she acted on 20 October 1991 and thereafter, considered in the light of what she did in July 1990 and her answers to questions as to what she did and why, I am satisfied that it is proper to make such a judgment. I think that, if put in a position of pressure in which she would be sufficiently embarrassed or worse, she would act in a way not acceptable in a solicitor of the Court. At least, she would be apt to do so." What then are the distinctions between the matter presently before this Tribunal and the Foreman case and why should the Solicitor not be subject to a similar order, i.e. removal from the roll? 1. In the Foreman case the Court per Mahoney JA concluded that it did not find Ms Foreman a witness whose evidence was frank and who faced the facts put before her and the implications of them. We find that the Solicitor was a frank witness who did face the facts and the implications of them and was contrite. 2. His Honour said that he found Ms Foreman's evidence in another aspect of her case "similarly unconvincing". We could not say that about the Solicitor in this matter. 3. His Honour expressed the opinion that he was satisfied that the Law Society had made out a case that Ms Foreman would in the future be likely to act in other ways unacceptable in a solicitor. We are concerned that the Solicitor might, in the future, react with lack of judgment that he demonstrated in this case, if he is put in a position of pressure in which he would be sufficiently embarrassed or worse, and might be apt to act in a way not acceptable in a solicitor. However, we do not believe that there is sufficient evidence against the Solicitor to enable us to make a judgment that he would be apt to behave in such a way. 4. In the Foreman case the falsification of the diary note was described by His Honour as "elaborate and calculated". In the case before this Tribunal the falsification could hardly be called elaborate. Accordingly we are of the opinion that there are distinctions between the Foreman case and the case against the Solicitor which leads us to the conclusion that his conduct in falsifying diary notes and misleading the Society was not as serious as that of Ms Foreman. However, the Solicitor did more than falsify diary notes and misled the Society. He altered documents after they had been executed, he put in false dates of execution and caused his partner to witness signatures that he had not witnessed. In addition, the Solicitor caused his partner to sign an affidavit which was false and which was either not sworn at all or if it was sworn, caused his partner to swear on his oath something that was false. In addition, the Solicitor deliberately caused the falsified documents to be lodged for stamp duty, thus avoiding payment of penalty stamp duty and also caused the traders bill of sale to be lodged in the office of the Registrar-General when the traders bill of sale was invalid because it has not been filed or recorded in the office of the Registrar-General within 15 days after the making or giving of the traders bill of sale. This Tribunal is of the opinion that what the Solicitor did amounts to serious professional misconduct which is much more serious than what Andresakis did, at the request of the Solicitor. The Solicitor was admitted to practice in 1977. He worked for 2 years for a firm of solicitors in Parramatta and after that commenced his own practice in 1979 and apart from a period between September 1987 and April 1991, during which time he and his family resided in Greece, She solicitor has practised on his own or in partnership since his admission. A number of statutory declarations were tendered in evidence on behalf of the Solicitor, 13 were by solicitors, 1 was by a barrister, 2 were by managing directors of business organisations and 1 was by a priest of the Hellenic Orthodox Community. The declarants state that the actions of the Solicitor are out of character and they testify to his good character, trustworthiness, honesty, integrity, competence, good professional reputation and involvement in community activities particularly those involving the Greek community. Determination The Solicitor is guilty of professional misconduct as set out in the amended information. Orders 1. The Solicitor be publicly reprimanded. 2. The Solicitor must pay a fine of $20,000.00 within 3 months of the date of these aorders. 3. The Solicitor's practising certificate be cancelled. 4. A practising certificate not be issued to the Solicitor until the end of the period of 2 years from the date of these orders. 5. During the period of cancellation of his practising certificate the Solicitor must not engage in any legal practice in New South Wales either as employee, partner, consultant, associate or otherwise without the written consent of the Society. 6. The Solicitor undertake and complete the required number of mandatory Continuing Legal Education units during the period of cancellation of his practising certificate that he would have been required to complete if his practising certificate had not been cancelled. 7. The Solicitor must pay the costs of the Society but, if agreement cannot be reached as to the amount of the costs, either party has leave to apply to the Tribunal for determination of costs pursuant to s171E Legal Profession Act 1987. 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.