The Legal Services Tribunal of New South Wales CITATION : Kenneth Jolliffe [1991] NSWLST 8 PARTIES : Kenneth Jolliffe FILE NUMBER(S) : of CORAM: Mr D E Hunt (Presiding Member) - Ms A Plotke - Mr D Mahon CATCHWORDS: Professional Misconduct - fail to carry out instructions - Professional Misconduct - misappropriate trust moneys/moneys :- LEGISLATION CITED: Legal Profession Act 1987 Legal Practitioners' Act 1898 CASES CITED: Arthur v Arthur DATES OF HEARING: 15/10/90 - 21/02/91 DATE OF JUDGMENT: 02/21/1991 LEGAL REPRESENTATIVES: Mr P Huntington of Counsel JUDGMENT: The Legal Profession Disciplinary Tribunal In the matter of Kenneth Jolliffe Determination and Orders Before: Mr D Hunt (Presiding Member), Ms A Plotke, Mr D Mahon. This complaint relating to the conduct of Kenneth Jolliffe (the Solicitor) was made to The Legal Profession Disciplinary Tribunal (the Tribunal) by the Council of the Law Society of New South Wales (The Law Society) pursuant to s.134 of the Legal Profession Act 1987 (the new Act), by resolution dated the 5 April 1990 and the Complaint is dated 22 May 1990. The matter came on for hearing before the Tribunal on the 15 October 1990 when Mr P Huntington of Counsel appeared for the Law Society and the Solicitor appeared on his own behalf. On this occasion the Tribunal was constituted by Ms A Plotke (Presiding Member) and Messrs F Herron and D Mahon as Members and after tendering a number of exhibits evidence was taken from Gregory Robert Lloyd, Chartered Accountant of Newcastle, who was employed by the firm of Ernst and Young Chartered Accountants. A partner of this firm Mr Ian Campbell had been appointed Receiver of the Solicitor's practice on the 23 June 1988 and Mr Lloyd had carried out the receivership under the supervision of Mr Campbell. At the conclusion of Mr Lloyd's evidence Mr Louis Pierotti Solicitor who was instructing Mr Huntington disclosed to the Tribunal that it had come to his notice that Mr Herron had been a Member of the Council of the Law Society and present at the Council meeting when it was resolved to appoint a receiver to Mr Jolliffe's practice and to make the present complaint to the Tribunal. On this information being disclosed to the Solicitor he objected to Mr Herron's continuing to hear the case and although Mr Herron stated that he had no specific recollection of the matter, the subject of these proceedings, the Tribunal decided not to proceed as then constituted and agreed to fix a new date for the hearing on the 22 November 1990. On the adjourned date the Tribunal was reconstituted with the President Mr D E Hunt as Presiding Member and Ms Plotke and Mr Mahon as Members continued with the hearing and the matter proceeded on 22 and 23 November 1990 when the decision was reserved. On 22 November 1990 the Solicitor again appeared in person and made application for an adjournment on the basis that he had travelled to China shortly after the earlier hearing and he had not had sufficient time to prepare for the hearing nor had he been able to retain Counsel whom he had asked Mr McCann a Partner of Messrs Everingham Solomons & Co Solicitors of Tamworth to brief on his behalf. The Tribunal had before it a letter from Mr McCann dated 19 November 1990 advising that he had been contacted by Mr Jolliffe from China who had asked him to "try to get an adjournment of this matter on 22 November to a later date." Enclosed with this letter was a copy of a facsimile message from the Solicitor dated 13 November 1990 from Guangzhou Province China advising that he had not had time to draft documents and that he would not be able to return home for the hearing and concluding with the request "I request the indulgence of the Society to enable me to properly prepare (with counsel) both mentally and physically and to be in attendance to prove my innocence..." In his letter Mr McCann stated "I advise that I am not, nor is my firm, instructed to act for Mr Jolliffe in relation to the proceedings except for the request to seek an adjournment. The only other request in relation to the proceedings that I have from Mr Jolliffe is to have a Statutory Declaration signed by Mr Bruce Manvell. This Statutory Declaration signed by Mr Manvell and witnessed by the writer is enclosed herewith in triplicate." It appears from the transcript and is confirmed by Ms Plotke who presided at the earlier hearing that the Solicitor consented to the adjourned hearing date and the following appears in the transcript as stated by the Presiding Member: "....it would be most desirable for you to agree on facts and issues so that the next Tribunal hearing the matter would be doing it more efficiently and with the least available time. You might also give some consideration to being represented on the occasion." In the circumstances the Tribunal could see no merit in the Solicitor's application for an adjournment nor did it believe that the Solicitor was likely to be prejudiced by the matter proceeding and accordingly refused the Solicitor's application. The evidence before the Tribunal consisted of the complaint dated 27 April 1990, a Statement of Agreed Facts and a number of statutory declarations including the transcript of the proceedings on the 15 October 1990 which were admitted by consent and became Exhibit L. In addition the Solicitor gave evidence and called Mr Bruce Manvell to elucidate some of the matters appearing in his declaration (Exhibit 1). The allegations against the Solicitor are set out in the Statement of Particulars of Grounds for Complaint.It is proposed to deal with the allegations seriatim. Wilful breach of s.41 (1) of the Legal Practitioners Act 1898 (the old Act) The allegation is that on the 31 July 1987 there was a debit balance of $866.60 in the trust ledger account of B & G Manvell and that since the 3 November 1987 there has been a debit balance of $4,766.60 in this client's trust ledger account. In the statement of agreed facts the Solicitor agrees that since 3 November 1987 there was a debit balance of $4,766.60 in the trust account of the client Manvell. Dealing with this debit balance the evidence from Mr Lloyd, the Receiver's assistant, was that the deficiency related to what appeared to be payments to Mr Manvell out of monies held on behalf of Mr Manvell in excess of funds which had actually been held on his behalf. A copy of the trust account card B & G Manvell was tendered (Exhibit J) and there were pencil markings on the card which Mr Lloyd described "are a running balance of the account, demonstrated running balance of the account." Mr Lloyd stated that he had a discussion with Mr Jolliffe's trust account clerk, a Mrs Fanker, and gave the following answer to the Presiding Member at Page 12 of the transcript: Answer: "I am sorry; she informed me that she had conducted a reconciliation of the trust account bank account as at 30 June 1987, at some stage in September of that year. In other words she had not conducted a reconciliation of the bank account on or about 30 June 1987. Mrs Fanker tells me that in or about September of 1987 she conducted the bank reconciliation as at 30 June 1987 and she found from that reconciliation that she had insufficient monies remaining in the trust account to meet the claims of the trust creditors that existed at the time. She told me that she then endeavoured to find out where that difference arose and that that difference arose in relation to the Manvell trust account. "I was advised by Mrs Fanker that in reviewing the Manvell trust ledger, she identified that a payment that had been made from that trust ledger on 30 June 1987 had been incorrectly deducted by her in a book-keeping sense and that in the running balance that she had maintained on that trust ledger account she had made a running balance entry which was in fact less (sic) (?more) than what it should have been. "Having recognised her error, she then amended the running balance on the Manvell trust ledger account by making pencil adjustments, running balance adjustments, in what on the card is described as the credits column. She then at the same time put a line through the balances that she had previously written in the balance column, making those redundant. "In readjusting her balances, if you like, since the original error she had made, the trust ledger account became overdrawn, became into debit on 31 July 1987 in the sum of $866.60. From 31 July, being the first time the account went into debit, through to 3 November, further payments had been made off that account and one deposit had been made to the account with the overall result that at 3 November 1987 there was an overdrawing of that trust ledger account of $4,766.60. "Mrs Fanker told me that because she had conducted this 30 June 1987 reconciliation some three, four months later from that date, being on or about September or October 1987, she had inadvertently and unknowingly continued to make payments between June and November, not realising that the account according to her not realising that the account was in fact in debit at those times." Question: "Mr Lloyd because of the overpayments to Mr Manvell is it the position that Mr Manvell appears to owe the trust account money." Answer: "We had certainly made a demand on him for repayment for that sum in that belief very early in the receivership..yes." In respect of the deficiency in the Manvell trust account the Solicitor's case is that this arose inadvertently and that he was not aware at the time he signed the cheques that he was putting the trust account into debit. In the statement of agreed facts the Solicitor agrees that notwithstanding the deficiency in his trust account he continued to draw cheques upon his trust account, but it is not clear what effect this had on the trust account and whether it put the trust account further into debit. In the statement of agreed facts the Solicitor admitted that he had transferred the following sums from the Manvell trust account to his general account in respect of costs: 20 September 1985 $5,000.00 8 November 1985 $1,140.95 26 June 1987 $ 350.00 30 June 1987 $3,500.00 He also admitted that he did not render any memoranda of costs in respect of these transfers. The Solicitor's evidence is that these transfers were all made with the client's authority and this was supported by Mr Manvell in his statutory declaration and in his sworn evidence . Mr Manvell stated that in respect of the transfer of $5,000.00 on 20 September 1985 and the transfer of $1,140.95 on 8 November 1985 and the transfer of $350.00 on 26 June 1987, he gave authority to the Solicitor to make these transfers on account of costs. Mr Manvell admits that he never received any memoranda of costs which would support the transfers but in his own words it was "for part payment of his fee". He was cross-examined about a letter dated 25 July 1988 from Messrs J J Lyons & Barnett Solicitors to Mr R V Young, Chartered Accountant, Newcastle, which was written in response to a letter dated 14 July 1988 which the partnership Arthur Young had written to Mr J Lyons of the above firm, requiring repayment by Mr Manvell of the sum of $4,766.60. The letter is in the following terms: "25 July 1988 Mr R V Young Chartered Accountant DX 7963 Newcastle Dear Sir Jolliffe & Co Re B & G Manvell We have now had the opportunity to discuss your letter of 14 July 1988 with Mr Manvell. Looking at the ledger sheets we note the following: 20 September 1985 Transfer on account of costs $5,000. 00 re Mortgages 8 November 1985 A refund of the stamp duty and a transfer on account of costs re Mortgages on the same date for the full amount $1,140.95 26 June 1987 Transfer costs re Bankruptcy and Markbridge Glen $ 350.00 30 June 1987 Transfer costs re Markbridge Glen $3,500.00 With the exception of the fee of $350.00, for which an account was prepared on 26 June 1987 no accounts have been rendered to Mr Manvell in respect of any of the sums that have been transferred. Apart from the question of authority to transfer those sums, the question does arise as to the justification of the sums transferred in the absence of any account. Before any proceedings could be taken in respect of recovery those accounts would have to be rendered in proper form and be approved. In relation to the transfer of 30 June 1987 Mr Manvell, gave evidence that without knowing the system, Mr Jolliffe told him on that date that he needed some money. He said he needed it for a short time only and mentioned that he needed it to make a payment for some law thing to do with his Practice (we presume this refers to a Practice Certificate, although, we would have thought that payment would have been due prior to 30 June 1987). He said he agreed to lend that to Mr Jolliffe. Mr Jolliffe gave him a form of a letter to sign which he said he needed to have in case someone comes along and checks on his Trust Account. Mr Manvell had indicated he will reconsider your submission when proper accounts are rendered in respect of all the above transfers with the exception of the sum of $350.00. Yours faithfully J J LYONS & BARNETT" Mr Manvell in evidence stated that he had only a vague recollection of seeing Mr Lyons and had no understanding that a demand had been made on him for repayment of the monies which had been overpaid from the trust account. He said that the first time that he became aware of any demand for repayment for these monies was when he was giving evidence before the Tribunal. He also said that he may have received a copy of the letter referred to above from Mr Lyons but he cannot remember it. In cross-examination Mr Manvell denied that he had agreed to make a loan to the Solicitor of $3,500.00 on the 30 June 1987 but admitted that he understood the payment was for Mr Jolliffe's practice "or some law thing." Mr Manvell's evidence in general is inconsistent with the letter of 25 July 1988 from J J Lyons & Barnett and the Tribunal noted that Mr Manvell's memory when giving his evidence appeared to be defective and prefers to accept the documentary evidence set out above. So far as the four transfers are concerned the Solicitor's evidence is that these were in respect of legal costs in connection with a loan transaction where he had acted for Mr Manvell in the refinancing of three of his properties. The amount of the loan was over $700,000.00 and the Solicitor states that to the best of his recollection at least one of the properties was old system title. He said that the matter was very time consuming and that he was in contact with Mr Manvell almost daily. He gave evidence that in relation to the first transfer of $5,000.00 on or about the 20 September 1985 he spoke to his client and said words to the effect "Bruce it is about time I got some payment for these matters" and the client said "well just take what you want" and Mr Jolliffe said "I can't do that but how about $5,000.00 at this stage." The Solicitor says that he believes the fees were about $9,000.00 at that stage and his client said to him "all right just go ahead and take it." In relation to the second transfer on 8 November 1985 ($1,140.95) the Solicitor said that this was a refund of stamp duty and he obtained his client's instructions to transfer this on account of fees. The Solicitor states he has no recollection of the transfer of the sum of $350.00 but according to the letter from J J Lyons & Barnett of the 25 July 1988 this is not in issue as an account was rendered for this amount. As to the sum of $3,500.00 the Solicitor states that at the time he was acting for Mr & Mrs Manvell on the sale of their property to Markbridge Glen and that his practising certificate fee was due on the 30 June. The Solicitor claims that he rang the client and obtained authority from him to transfer the amount of $3,500.00 and that he said that this was payment on account of an unfinished matter and that he would have to get his written instructions to enable the transfer. The Solicitor says that he did obtain written confirmation but that he has not been able to find the document. The Solicitor acknowledges that he has not rendered any accounts in respect of the work that he has done for Mr & Mrs Manvell because the client was in a hopeless financial position and he still has not rendered any accounts. The two questions in issue are whether the Solicitor had any authority from Mr Manvell for the transfers of the three sums of $5,000.00, $1,140.95 and $3,500.00 and if so whether the solicitor's failures to render accounts in respect of these sums constitute breaches of s.41(1) of the old Act. On the first point the Solicitor says that he did have this authority and the client confirms that he gave the Solicitor such authority. Despite the unsatisfactory nature of Mr Manvell's evidence the Tribunal is prepared to accept that the Solicitor had carried out legal work for Mr Manvell from time to time for which he would be entitled to charge costs and that he had the client's authority to make the transfers from the client's trust account to his own account for costs. On the second point in view of the evidence that the solicitor had the client's authority to make the transfers which evidence the Tribunal accepts, the fact that the solicitor has not rendered any accounts in respect of these sums, would not in the Tribunal's opinion constitute breaches of s.41(1) of the old Act. The sub-section provides as follows "all moneys received in New South Wales for or on behalf of any person by any solicitor shall be held by him exclusively for such person, to be paid to such person, or to be disbursed as he directs, and until so paid or disbursed the monies shall be paid into a bank account in New South Wales to a trust account, whether general or separate." The moneys were disbursed as the client directed and the solicitor's failure to render any accounts prior to the making of the transfers would not constitute breaches of s.41(1) of the old Act. In relation to the deficiency in the trust account the Solicitor gave direct evidence that when he signed the cheques he was not aware that he was putting the Manvell trust account into debit. There is the evidence of Mr Lloyd as to the explanation given by the book-keeper Mrs Fanker that this occurred because of a bookkeeping error and the failure to carry out a bank reconciliation as at the 30 June 1987. Unfortunately Mrs Fanker was not called to give evidence and the Tribunal is left with the evidence from Mr Lloyd of his discussion with this person. Because of the deficiency in the trust account the Solicitor acknowledges that there has been a breach of s.41(1) but denies that this was wilful. The Tribunal accepts that the deficiency was caused by a bookkeeping error but does not accept that this exculpates the Solicitor from personal responsibility. He had the duty to carry out a monthly balance of the cash book and a trial balance within one month after 30 June 1987 and 30 September 1987. He left this responsibility to his book-keeper and gave her no supervision in regard to these matters. The book-keeper, according to Mr Lloyd's report became aware of the debit in the Manvell trust account after the last payment on 3 November 1987 although he also said that the book-keeper told him she made the 30 June reconciliation in approximately August or September 1987 and then realised there was a shortfall in the Manvell trust account. From 31 July 1987 to 3 November 1987 the Solicitor signed four cheques on the Manvell trust account. These progressively increased the debit balance from $866.60 to $4,766.60. The Solicitor should have ensured that the prescribed procedures were followed in respect of his trust account and had this been done this would have made him aware of the true state of the Manvell trust account. The Solicitor's failure to comply with the regulations relating to his trust account for a period of at least three months would, in the Tribunal's opinion, constitute careless, reckless and indifferent behaviour. For these reasons the Tribunal finds that the Solicitor's conduct was wilful in the context referred to in Re Hodgekiss (1962 State Reports (NSW) 340) as being recklessly careless. In respect of this allegation two other transactions are raised where it is alleged that the Solicitor acted for two clients and retained Messrs Peters & Crompton Solicitors as his Sydney agents. A Statutory Declaration was tendered (Exhibit M) of Alan Barons Crompton dated 19 October 1990. Mr Crompton declared that he was acting for Messrs Jolliffe Culf & Co in two matters where costs had been rendered and remain unpaid. These two matters were Arthur v Arthur where a memorandum of costs in the sum of $140.00 was forwarded to the Solicitors by Messrs Peters & Crompton and the matter of D J Pfeiffer & Ricanda Pastoral Holdings Pty Ltd where costs were rendered in the sum of $129.50 and remain outstanding. The Solicitor admits in both cases he has received the fees from the respective clients and these have not been paid to Messrs Peters & Crompton. He says however that the matter of Arthur v Arthur was not his matter, that it was handled by Mr Culf and it appears from a notation on the account dated 14 March 1985 from Jolliffe Culf & Co to Mr J M Arthur in the sum of $355.00 (which includes the agent's fees), that this account was paid, and the amount of the agents fees were not passed on to Messrs Peters & Crompton. The Solicitor agrees that there have been breaches of s.41(1) of the old Act but denies that these breaches were wilful. In the matter of Arthur v Arthur the Tribunal accepts the Solicitor's explanation that this matter was handled by his partner and that the admitted breach of s.41(1) was not wilful. However as the Solicitor acted in the matter of Pfeiffer and Ricanda Pastoral Holdings Pty Ltd and received the costs from his client, he should have ensured that the agent's fees were paid and the Tribunal finds that the failure to do so was a wilful breach of s.41(1) of the old Act. The Tribunal notes that no attempt has been made by the Solicitor to repay these amounts and the Solicitor says that he is unable to do so because of his impecuniosity and subsequent bankruptcy. Wilful Breach of s.42 (2) of the Legal Practitioners Act 1989 It is alleged by the Law Society that in respect of the transfer from the Manvell trust account of the sum of $3,500.00 on 30 June 1987, which the Solicitor used to pay his Practising Certificate fees, that the entry in the clients' trust account ledger describing the transaction as "costs Re Mark Bridge Glen" was a false entry. In view of the Solicitor's evidence and the evidence of Mr Manvell that he authorised payment of this amount to the Solicitor not as a loan but on account of costs the Tribunal finds that there has been no falsification of the entry in the trust account. Wilful Breach of s.61 (1) of the Legal Profession Act 1987 (the new Act) It is alleged that since 23 June 1988 there has been a deficiency in the Solicitor's trust account of $5,161.33 made up as follows: Deficiency in the Manvell trust account ledger $4,766.60 Bank charges debited to trust account $ 394.73 Total $5,161.33 The Solicitor admits this deficiency which he says arose from the overpayment from the Manvell trust account and the bank charges which were debited in error to the trust account. He says that he is unable to repay the amount because of financial problems he is having and that on 17 December 1988 a sequestration order was made against his estate. The Solicitor was asked whether he had attempted to recover the money from Mr Manvell and he said that there was no point because Mr Manvell was in a poor financial position and does not have the money to repay the trust account. The Tribunal has already found that there has been a wilful breach of s.41(1) of the old Act in respect of the debit balance of $4,766.60 in the Manvell account since 3 November 1987 and makes a similar finding in respect of the above deficiency both in regards to the deficiency in the Manvell trust account and the deficiency arising from the incorrect debiting of bank charges to the trust account which would have been rectified if he had followed the correct procedures. Delay in accounting for money's received for and on behalf of clients Mrs Norma Lewis The Solicitor acted for Mrs Lewis in connection with the sale of a property in Tamworth which was settled on or prior to 20 June 1986. From the proceeds of sale the Solicitor retained in his trust account an amount of $1,769.00. Mrs Lewis had also instructed a Mr Dupree to act for her in Family Court proceedings and instructed Mr Jolliffe to pay the amount of $1,769.00 held in his trust account to Mr Dupree in payment of costs. Mrs Lewis declares that the amount of $1,769.00 has not been paid in accordance with her instructions. The Solicitor admits the matters asserted in the Statutory Declaration of Mrs Lewis dated 8 May 1990 (Exhibit D), but says that this amount was transferred to his trust account when he took over the practice of C J Graham & Co and that Mrs Lewis has changed her instructions from time to time although her present instructions are that the money should be paid to the Solicitors in Sydney. He says it has not been paid because he does not have the money. The amount of $1,760.00 is included as a trust account creditor in annexure "A" to the Receiver's report on page 21 of the complaint. The Tribunal finds that there has been delay in accounting for the monies received and notes, as referred to above, this is part of the debit balance in the trust account. Delay in providing statement of account a) Rushworth The Solicitor acted for Mrs Helen Rushworth and other plaintiffs in respect of Equity Proceedings in the Supreme Court of NSW In her Statutory Declaration dated 7 May 1990, most of which is admitted by the Solicitor, Mrs Rushworth said that she had paid to the Solicitor monies on account of costs and disbursements amounting to $1,043.00. Subsequently the Court awarded costs in favour of Mrs Rushworth and the other plaintiffs and there is a letter dated 7 September 1987 from Messrs Clayton Utz to Messrs Jolliffe & Co enclosing a cheque in the sum of $2,057.42 in payment of taxed costs. Mr Jolliffe says that he did not act in this matter, that his former partner Mr Culf acted, but he agrees Mrs Rushworth paid money on account of costs into his trust account and that she was awarded costs in the Court Action and that these costs were paid into the office account and there has not been any refund of costs to her or Statement of Account rendered. According to the Receiver the amount of $2,057.42 was paid to Mr Jolliffe's firm but there is no evidence that it was paid into the trust account. It appears that the cheque was paid to the firm's office account although the Receiver said that he has been unable to ascertain where the cheque was deposited. In relation to the Solicitor's explanation that he did not act in the matter and that his former partner Mr Culf acted, the evidence discloses that the partnership was dissolved on 17 January 1987, so that the cheque for the taxed costs which was received by Mr Jolliffe after 7 September 1987 was well after the dissolution. Accordingly it was the Solicitor's responsibility to render a memorandum of costs to the client and account to her in respect of the costs recovered. The Tribunal finds that in this matter the Solicitor has failed to refund the taxed costs and there has been no Statement of Account rendered in respect of the matter. The Tribunal also finds that there has been a failure to account to Mrs Rushworth. (b) Brooking In this matter the Solicitor acted for Mr Raymond Brooking in the purchase of a property and retained an amount of $150.00 in his trust account as at September 1986. Mr Brooking declares (Statutory Declaration dated 5 July 1990, Exhibit F) that he also instructed Mr Jolliffe to commence Court Action in respect of another matter and up to June of 1988 he has tried unsuccessfully to obtain information from him concerning that matter and to receive an account of the monies held on his behalf. The Solicitor admits the matters set out in Mr Brooking's declaration and admits that there has been a failure to render an account. He says however of the $150.00 that was received into his trust account he has used all but $74.00 for the cost of issuing summonses etc. It is noted that amongst the trust account creditors appears the name Brooking for an amount of $74.00. The Tribunal finds that the Solicitor has failed to account to Mr Brooking. Failure to communicate with a client In this matter the Solicitor acted for Mr Douglas John Moffat of Tamworth in relation to a dispute with Westpac Banking Corporation. On 11 September 1987 Mr Moffat paid Mr Jolliffe the sum of $850.00 and the Solicitor issued a receipt for this amount described as "Advice re various matters". According to a letter dated 3 April 1990 from Legal Aid Commission of NSW to the Receiver, a limited grant of Legal Aid was made in respect of this matter and payment made to Mr Jolliffe on the 16 January 1987 in the sum of $140.00 being the balance of Mr Christie of Counsel's memorandum of fees and on the 15 March 1987 a further payment in the sum of $273.00 being the costs of agents Messrs Peters & Crompton as per account dated 9 February 1987. The Solicitor admits that he has not rendered any Memorandum of Costs to Mr Moffat and says that the client was of the opinion that the money he had paid was for future work whereas Mr Jolliffe intended it to be for past work. He also says that the client was a very difficult person to deal with and the matter in which he was acting had considerable complications and the client was constantly ringing and seeing him. The Tribunal finds that there has been a failure to communicate with client and also a failure to render a memorandum of costs in respect of work done up to the grant of Legal Aid. Solicitor's background The Solicitor was born on 24 August 1947 in Tamworth and completed his leaving certificate in 1964. In 1965 he commenced work with the NSW Department of Attorney General and of Justice, Petty Sessions Branch, where he worked for 10 years in various Court Houses in the metropolitan and country areas and also worked in the administration as a Special Projects Officer. He achieved the position of Special Grade K Public Servant acting as Chamber Magistrate at Bankstown. During his time with the Justice Department he completed his Law Course through The Solicitors Admission Board and was admitted as a Solicitor on 5 November 1976. He worked for Creagh O'Brien & Co Solicitors of Tamworth for three years before commencing private practice in 1978/9. He says his practice was never lucrative but it was building steadily and involved mainly Court work in most jurisdictions. He purchased the practice of a long established Solicitor, Colin James Graham but within a week of this purchase found that Mr Graham had been charged with fraud in relation to his trust account and this had a devastating effect on his practice because of "the run on files of Graham and the fact that the Law Society sent a receiver and investigator Mr Geoff Lewis to the office". He said his partner Mr William Culf and himself spent many months assisting Mr Lewis in the investigation of Mr Graham's practice. His partnership with Mr Culf ceased on 17 January 1987 and he continued to practise as a sole practitioner in the name of Jolliffe & Co. He ceased practice in about December of 1987 and arranged for Messrs J J Lyons & Barnett Solicitors of Tamworth to handle his clients' matters. Wills and Deeds packages and all current files were moved to this office. He was declared bankrupt on 17 December 1988. He married in January 1970, his wife is a trained Nurse and they have four sons aged 18, 16, 13 and 11. When asked about his intentions in the future he stated..."My intentions for the future to date have been to get involved in trade through Asia, and in particular China, to try to generate some income get myself out of the trouble that I am in. I don't really know that I would ever practise law again. It would be a matter of - I would have to re-apply for a practising certificate, etc but I am just - they weren't happy years for me unfortunately but - what I am saying to you basically is that all I have left at this stage other than my family is my achievement in being admitted as a Solicitor and that is something I am very, very proud about". Question: "What have you been living on since December of 1987?" Answer: "I have been getting consultancy fees for trade, for endeavouring to set up trade, etc in China and for working on, for the last five years on a heat transmission medium, an organic heat transmission medium that was being tested by Scientists from China and Australia with Multiplex Industries here from Australia as the potential investors." Determination The Tribunal finds that the Solicitor has been guilty of professional misconduct and must consider the appropriate order that follows from this finding. Mr Huntington on behalf of the Law Society submits that in accordance with the decision in The Law Society and Jones (unreported Court of Appeal 27 July 1978) reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a Solicitor and that the admitted breaches of s.41(1) of the old Act and s.61(1) of the new Act were wilful and renders the Solicitor unfit to remain on the Roll. He also pointed to the failure of the Solicitor to render costs in the several matters referred to herein and the failure of the Solicitor to account to the client for monies received. There was also tendered before the Tribunal (Exhibit H) the Findings of the Solicitors' Statutory Committee involving the Solicitor in matter No 21 of 1987. The complaint involved a transaction where the Solicitor had acted for a client in personal injury litigation arising out of a motor vehicle accident and deducted costs from the settlement monies. At the client's request the costs were taxed and on 1 April 1986 a certificate of taxation was served on the Solicitor which required him to refund to the client the sum of $4,630.43 being the difference between the amount which he had retained from the verdict monies and the amount of the costs allowed on taxation. The Solicitor failed to repay these monies to the client and he was referred to the Solicitors' Statutory Committee which found him guilty of professional misconduct and ordered that he be suspended from practice until the sum of $4,630.43 was paid to the client and this suspension still operates as the monies have not been repaid. The transaction, in respect of which the Solicitor was referred to the Statutory Committee, predated the circumstances giving rise to the present complaint by some eighteen months and no explanation, other than the Solicitor's present impecuniosity has been given for the Solicitor's failure to repay this money. The Solicitor on the other hand submits that the breaches of s.41(l) and s.42(2) of the old Act have not been made out and that he had his client's authority to deduct the monies on account of costs. He further submits that the breach of s.61(1) of the new Act which he admits, was not wilful and that "it was simply a mistake that was compounded by continued payments from the trust account without my knowledge that the total on the balance carried forward column on Manvells' trust ledger card was incorrect, and by other events such as my bankruptcy. The reason for the debit has been, I submit, satisfactorily explained in the file, the evidence of Mr Lloyd and my evidence." In making a finding that the Solicitor's conduct was wilful, in relation to the breach of s.41(1) of the old Act and s.61(1) of the new Act, the Tribunal has had regard to the decision in Re Hodgekiss (1962 State Reports (NSW) 340) and in particular the judgment of Mr Justice Hardie at page 355 wherein he states: "applying those principles, I am of the opinion that this section deals with personal breaches of the statutory provisions in question on occasions when the Solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. It is thus essential in an enquiry as to whether or not there have been wilful breaches by a Solicitor of the provisions of ss.41 and 42 to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the mentioned date." In this case it is clear that the Solicitor left the reconciliation of his trust account to his book-keeper and has given no explanation as to why a reconciliation was not carried out at 30 June 1987, which would have shown up the overdrawing in the Manvell trust account and prevented further overdrawing and the present deficiency. The plaintiff was cross-examined as to his activities in China and why he was not in a position to make some payment on account of the deficiency in his trust account rather than spend the money on travelling and accommodation in China. He stated however that the money had been given to him by a friend or in effect a potential joint venturer and that it could only be used for the purpose for which it was given and it was not available for his private debts. The Tribunal has come to the conclusion that in all the circumstances the Solicitor is unfit to practise and that his name should be removed from the Roll. Although the Solicitor says that the deficiency in his trust account was brought about inadvertently by the actions of his book-keeper, he must accept responsibility for this and has made no attempt to refund the money. Similarly the previous matter before the Solicitors' Statutory Committee resulted in a suspension until he repaid the money to his client and again he has made no attempt to repay this and remains suspended. The Tribunal can see no point in making an order which merely continues the Solicitor's suspension as it has come to the conclusion that his inability to manage his affairs in particular his trust account, render proper Bills of Costs to clients for whom he was acting and generally maintain an efficient Legal Practice disentitles him to be held out to the public as a Solicitor of good repute and competence. Accordingly the Tribunal makes the following order: 1. That the name of Kenneth Jolliffe be removed from the Roll of Solicitors of the Supreme Court of New South Wales. 2. That the costs of the Law Society be paid by the Solicitor as if taxed on a Solicitor and Client basis to the Law Society or it's Solicitor Ms Rosemary MacDougal. 3. If the parties cannot agree on the amount of costs payable by the Solicitor either party has leave to apply to have the amount of such costs determined by the Tribunal. Dated this 21st day of February 1991. 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.