The Legal Services Tribunal of New South Wales CITATION : Kevin Charles Hall [1993] NSWLST 5 PARTIES : Kevin Charles Hall FILE NUMBER(S) : of CORAM: Mr D E Hunt (Presiding Member) - Mr G B Molloy - Mr E Barnum CATCHWORDS: Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - make false statement - Professional Misconduct - misappropriate trust moneys/moneys :- Legal Profession Act 1987 LEGISLATION CITED: Statute Law (Miscellaneous Provisions) Act 1992 No.34 Unclaimed Money Act 1982 Stamp Duties Act CASES CITED: DATES OF HEARING: 14/10/92 - 05/08/93 DATE OF JUDGMENT: 08/05/1993 LEGAL REPRESENTATIVES: Mr P. Gullotta JUDGMENT: The Legal Profession Disciplinary Tribunal IN THE MATTER OF Kevin Charles Hall DETERMINATION AND ORDERS BEFORE: Mr D.E. Hunt (President and Presiding Member), Mr G.B. Molloy, Mr E. Barnum. APPEARANCES: Mr P. Gullotta instructed by Mr F. Smith for the Law Society. Mr R.C. Hall appeared in person. HEARING DATES: 14, 15, 16 October; 9, 10, 11 November; 3, 4 December 1992; 17 June and 5 August 1993. This Complaint was referred to the Legal Profession Disciplinary Tribunal (the Tribunal) pursuant to a resolution of the Council of the Law Society of New South Wales (the Law Society) on 21 November 1991 that in its opinion the Solicitor may be guilty of professional misconduct and that a complaint be made to the Tribunal. The Complaint document is dated 28 November 1991 and the Particulars of Complaint under Section 135 of the Legal Profession Act 1987 (the Act) are as follows: 1. The Solicitor wilfully contravened Section 61 of the Legal Profession Act 1987. 2. The Solicitor misappropriated monies. 3. The Solicitor wilfully contravened Section 62 of the Legal Profession Act 1987. 4. The Solicitor gave false evidence. 5. The Solicitor was guilty of gross neglect and delay. Before examining the evidence and making a determination in respect of the matters raised in the complaint it is necessary to refer briefly to the history of this matter. The Complaint came before the Tribunal comprising the late Mr G.L. Williams as Presiding Member and Messrs Molloy and Barnum on 14 October 1992 and the evidence and addresses concluded after 8 days hearing on 4 December 1992 when Judgment was reserved. Before the then constituted Tribunal could bring down its decision Mr Williams died on 20 March 1993 and pursuant to amendments to Section 157 of the Legal Profession Act 1987 by the Statute Law (Miscellaneous Provisions) Act 1992 No.34 where the Presiding Member vacates office (for any reason) before the Tribunal has completed the hearing or made a determination in respect of the hearing the hearing is terminated and the Tribunal is obliged to be reconstituted for the purpose of conducting a new hearing into the complaint. When the matter came before the Registrar on 20 April 1993 the parties agreed that the evidence already given would be put before the newly constituted Tribunal to consist of the President, Mr D.E. Hunt and the surviving members of the panel who heard the complaint initially, Messrs Barnum and Molloy, and that the transcript of the hearing would be accepted as evidence before the new panel subject to the Tribunal, in particular the President, asking any questions of any of the witnesses that he wished and further submissions by both the Law Society and the Solicitor. This position was confirmed by the new panel when the matter was mentioned on 10 June 1993 and quoting from the transcript on that occasion the President who was presiding said: The Chairman: "I have listed this matter this morning gentleman, because as you are aware the Chairman who presided at the hearing of this matter the late Mr Williams, regrettably is no longer with us, and as I understand it, by consent the parties have agreed that the matter proceed on the transcript with the addition of a further professional member to hear the matter. Q. Is that agreed? Mr Gullotta: Yes, I understand it is. Mr Hall: That was my understanding. The Chairman: You agree to that course of action, I take it? Mr Hall: That is correct, yes, I do." Accordingly when the matter continued on 17 June 1993 the transcript of the previous hearing was admitted into evidence and Ms Sayer was recalled to give further evidence and Mr Hall was also recalled to answer further questions from members of the Tribunal and was further cross examined by Mr Gullotta. In addition Mr Hall tendered by consent a further report of Dr Ken Israelstam dated 11 June 1993 as to his present psychiatric condition. This report is dated 11 June 1993 and became Exhibit "19". It is now proposed to deal with the subject matters in the complaint in the order in which they appear in the Particulars a copy of which is annexed hereto and marked with the letter "A". It is proposed to identify the matters as they appear in the Particulars some of which were not pressed by the Law Society. Specifically the Law Society withdrew from the Complaint Particulars 1(a), 1(c), 1(d) and 1(m) and no evidence was led in respect of these matters. 1(b) C. and F. Rae In this transaction the Solicitor acted for Mr and Mrs Rae in respect of their purchase of the property at 744 The Entrance Road, Wamberal and the purchase of a business. The Solicitor received the sum of $152,684.58 from Mr and Mrs Rae which he credited to his trust account. On the 23 March 1988 he transferred from the trust account the sum of $1,879 for costs and disbursements in accordance with a trust account statement which is undated. On the same day another cheque was drawn payable to the Solicitor in the sum of $338 but this did not appear in the statement to the clients which showed a credit of $355 said to have been transferred to account number 405 which related to the purchase of the business. On 5 May 1988 the Solicitor drew another $17 on the trust account making a total of $355 in respect of which the account was in debit. The Solicitor asserts that the sum of $338 were costs owed to him in respect of a mortgage transaction in which he acted for the Rae's as mortgagors and refers to a Bill of Costs undated which has been signed by Mrs Rae in the sum of $553 which he suggests is made up of the $338 originally transferred on 23 March 1988 and a further $200 transferred from a matter of Colin Emery. However these two sums amount to $538 and do not appear to have any relationship to the account of $553 referred to in evidence by the Solicitor. The Tribunal is of the opinion that the transfer of $338 on 23 March 1988 and the further transfer of $17 on 5 May 1988 creating a debit balance in the account of $355.00 is not related to the further account of $553 and the Tribunal does not understand the Solicitor's explanation for the debit balance. It is relevant to point out that there is no reference in the trust account statement issued to the clients of this sum of $338 drawn in favour of the Solicitor and no account was issued to the clients in respect of this sum. The Tribunal finds that a debit balance of $355 remained in this account from 5 May 1988 until 1 June 1988 and that this was a wilful breach of Section 61 of the Act. 1(e) Matthew Hobday & Barrotrack Pty Ltd In this matter the Solicitor acted for Maurice Hobday with respect to a transfer of his property at Kirks Road, Mangrove Mountain to his sons Stephen and Matthew Hobday. On 2 November 1989 the Solicitor requested Mr Matthew Hobday to provide $31,490 for stamp duty and anticipated legal costs. Both Stephen Hobday and Matthew Hobday each provided a cheque for $15,745 to the Solicitor which were not paid to the credit of the Solicitors trust account. It is admitted that one of these cheques was paid to the Solicitor's office account and the other paid to his personal account. The Solicitor says that the monies were used as directed by the clients pursuant to an authority which he obtained from the clients. There is considerable dispute as to when these authorities were signed. According to the Statutory Declaration of Stephen Bernard Hobday (Exhibit "C") which annexed a copy of his joint Affidavit with his brother Matthew John Hobday dated 18 February 1991 which was filed in the Supreme Court proceedings, the Solicitor visited both the Hobdays at their property at Mangrove Mountain on 30 January 1991 and asked them to sign an authority which gave the Solicitor "carte blanche" to use the funds until they were required for payment of stamp duty. The authorities are dated 24 November 1989 and signed in each case by Stephen Bernard Hobday and the Solicitor and Matthew John Hobday and the Solicitor. In clause 6 of the joint Affidavit the Hobdays assert that the Solicitor said to them the following: "I know I have abused your friendship. I am having financial trouble. I have used your money. I was hoping I could get it back in a couple of months. Things didn't work out according to plan. It worries me that I might go to jail. Being a Solicitor means a lot to me. I don't want to lose my certificate." Further the Solicitor is alleged to have said "if you don't want to help me I don't blame you." The Hobdays then said to the Solicitor "Well what is it that you want us to do to help you." Mr Hall said "Will you sign these authorities." At the same visit on 30 January 1991 Mr Hall referred to money which he said was owing to the Hobdays from the transfer of the property from their father of $9,010. It is then alleged by the Hobdays that Mr Hall wrote out an agreement advising that he was indebted to both Matthew and Stephen Hobday in the sum of $4,505 each and that this amount was liable to interest at the rate of 16 per cent from the date of payment until the stamp duty was paid. Such funds were to be paid within 12 months of this agreement. According to the Hobdays both authorities and the agreement were signed on the same day. Only Matthew Hobday was cross examined by the Solicitor and not shaken in his evidence as to the circumstances set out above. Stephen Hobday was cross examined by Mr Cuddy in the Supreme Court and the transcript of this cross examination became Exhibit "T" in these proceedings but again Mr Stephen Hobday was not shaken by this cross examination. In addition to the matters raised above it is significant, in the Tribunal's opinion, that no provision was made for interest to be paid to the Hobdays in respect of the two documents which the Solicitor asserts were signed on the date appearing on them viz 24 November 1989 but that in the agreement written out in the Solicitor's handwriting dealing with the indebtedness to the Hobdays in the sum of $4,505 each which is dated 30 January 1991 there is a requirement for interest to be paid by the Solicitor. In the Tribunal's opinion it is highly improbable that the clients would have permitted the Solicitor full and free use of the monies which they paid him for stamp duty which the Solicitor received on 24 November 1990 and even more improbable that if as the Solicitor asserts he had the clients authority to use this money no arrangements were made for the payment of interest to the clients. The Tribunal accepts the evidence of the Hobdays in preference to the evidence of the Solicitor and accepts that all three documents were signed on the same day. It follows from this finding that the Solicitor had no authority to deduct the sums of $15,745 each which he had received from both Stephen and Matthew Hobday and use for his own purposes and the Tribunal finds that the Solicitor wilfully contravened Section 61 of the Act. 1(f) Mr and Mrs M.A. Simonetti In this matter the Solicitor acted for Mr and Mrs Simonetti on the purchase of a property known as 19 Dunrossil Avenue, Wyong. Upon completion of the purchase there remained a balance of $3,570.46 in the Solicitor's trust account which Mr Simonetti agrees that he left with Mr Hall to be invested and earn interest. In his Statutory Declaration (Exhibit "D") Mr Simonetti said that after the settlement of his purchase Mr Hall approached him in the street and said "There is a few thousand dollars left over after the settlement. If you like I will invest it for you at 20 per cent interest for 3 months." Mr Simonetti agreed to this proposal. Mr Simonetti denies that he loaned the money to Mr Hall personally and also says that he received no document or correspondence concerning the transaction. Mr Hall on the other hand asserts that Mr Simonetti gave him authority to do whatever he wished with the money provided he received some interest. At (T300.5) in answer to a question from Mr Gullotta the Solicitor said that Mr Simonetti answered in these terms "You can do whatever you want provided I get some interest." When Mr Hall was asked what he did with the money he replied "I was getting there. $2,300 of it was payment of my account which was paid in error for the second time, together with the disbursements. The other monies of I think there was a cheque of $1,200, there was a cheque drawn from a trust account which was in error, it was, when the balance was found to be wrong, deducted from that account over to myself, so it was paid to me in fact." The Solicitor agreed that he did not tell the client that the money might be used by him and confirmed "It was advanced to me to cover an error in the trust account record." According to Mr Simonetti he telephoned Mr Hall on several occasions to enquire about the loan but was not able to speak to him and he also left messages with Mr Hall's secretary asking him to telephone him but the Solicitor did not return his calls. It is apparent from the evidence that apart from a sum of some $225.00 which Mr Hall paid to Mr Simonetti for interest, the balance of his monies remained outstanding until Mr Simonetti received the sum of $3,625.04 from the Fidelity Fund. In evidence the Solicitor was asked: Q. "I'm just asking you what you did with the money? A. I only became aware that I owed Mr Simonetti $3,500 when I received the complaint. Up until the time of receiving the complaint between 1 June 1990, and then I was aware as I paid interest on that amount to Mr and Mrs Simonetti, I was aware that I owed them $1,227.50. Only after receiving the complaint was I aware that I owed them in fact $3,570.46, because the previous deductions for costs and disbursements, I thought was just that, costs and disbursements and therefore I never addressed my mind to owing the Simonetti's that amount of money, so that interest paid to them in January 1989 was based upon the figure of $1,227." Although the Solicitor has admitted the circumstances as set out in the Complaint he denies that the use of the clients money was without authority. In further evidence on the following appears: Mr Molloy: "When you bumped into Mr Simonetti in the street did you reach this agreement with him, that you thought that related to $1,227.75 or thereabouts? A. All I knew was that there was a few thousand, approximately. There had been no accurate calculation at that stage of meeting him in the street within a day or two of settlement, no. Q. Right. Armed with that information and that verbal authority, "Yes, you can keep the money and invest it for me", you then went and drew this cheque relating to the non-existent family law matter? A. No, in fact I never actually exercised that authority in that sense. I drew a cheque for a family law matter which I thought I had money in trust on. When I wrote the book up, my records, I realised I didn't have it and it would show as a debit balance and I had had a previous debit balance and had been in trouble before. I panicked, but I thought okay I can take that money over, I can simply transfer. I have got authority to use it. I then owe that money to Mr and Mrs Simonetti. I will have to pay them the interest, which I did." The Solicitor suggested that he had drawn some of the money for a family law matter but agreed in cross examination that there was no family law matter and was asked the following question: Q. Mr Gullotta: "Can you explain how that error came about in this context? A. No, I can not. I thought there were funds in trust on a family law matter. I drew a cheque that was erroneous, completely wrong and I sat down to write up the cash book and the ledgers, I then realised the error. I then thought about - I then decided that it was an error that I would simply have to pay back the money to the clients and I entered it up that way to cover my error." Furthermore at the Solicitor was asked the following: Q. Mr Gullotta "How did you come to draw the $1227.75 out on 1 June from the Simonetti's? A. I am sure it was drawn in error, I am sure that there is a cheque drawn for $1,327.75, I am certain it was on - there was a Family Law file, not Simonetti's file but another file, there was moneys owed. That is my recollection of it. Mr Molloy: Q. You are suggesting that it was drawn in respect of another matter by mistake? A. Yes. Q. Another matter unrelated to Simonetti? A. Yes. Q. Jones or Smith or Brown or something? A. Yes, that is - Q. And you wrote it to Simonetti's trust ledger by mistake? A. No, I didn't write it in Simonetti's by mistake, I have never said that. No, it wasn't in error. The cheque was written out in error and then I realised there was no moneys there and, like I said, I panicked and then realised I had the authority to take that money from Simonetti so that is what I did. Mr Gullotta: Q. So when you say there was no money there, there was no money where? A. No money in - The Chairman: Q. No money due to you in that matter? A. That is correct, yes." The Tribunal has no hesitation in finding that the use of Mr and Mrs Simonetti's money for his own purposes was unauthorised and that there was a wilful breach of Section 61 of the Act. 1(g) Mrs Gail Baker The Solicitor acted for Mrs Baker in Family Law proceedings and received an amount of $30,000 on 30 March 1990 which he credited to the Baker trust account. It is alleged that without the client's authority and without rendering a Bill of Costs the Solicitor paid to himself the sum of $2,000 (according to the ledger card the amount in issue is $1,800). The Solicitor says that he issued a second Bill dated 2 March 1990 in the sum of $1,800 having already issued an earlier Bill dated 15 August 1989 in the sum of $480. The client denies ever receiving this second Bill of Costs and also denies receiving any letter forwarding it to her although the Solicitor says that such a letter was sent but no copy was put into evidence. Mrs Baker moved to Brisbane and by letters dated 1 August 1990, 6 October 1990, 6 November 1990 and 29 November 1990 wrote to the Solicitor requesting an accounting for the $2,000 he held in trust on her behalf. The Solicitor did not answer any of these letters. On 7 December 1990 Mrs Baker again wrote to Mr Hall enclosing a copy of a letter which she proposed to send to the Law Society on 17 December 1990. Mr Hall admits that he never answered any of this correspondence. There is considerable doubt as to whether the second Bill was ever sent to Mrs Baker and there is no evidence of any covering letter being sent to the client. Although some of the items in the first Bill appear to have been repeated in the second Bill the second Bill of Costs refers to maintenance and custody and on balance it is accepted that Mr Hall was entitled to render these costs. However the Tribunal is not satisfied that the client ever received the costs and this is borne out by the fact that a number of letters which she sent to the Solicitor were just not answered. Whilst the Tribunal finds that there was a breach of Section 61 of the Act it does not make a finding that this was wilful. 1(h) Mr Samuel Patterson Morgan The Solicitor acted for Mr Samuel Morgan in Family Law proceedings. Pursuant to the Terms of Settlement in these proceedings the Solicitor received the sum of $6,920.23 which he paid to the credit of his office account, on 28 September 1990. The Solicitor says that this was a mistake and admits that he did not account to the client until 23 January 1991. In evidence the Solicitor states that he drew a cheque in favour of the client and forwarded this to him by letter dated 15 October 1990 but there is no evidence whether this cheque was ever drawn as the bank statements were not produced. The Solicitor agrees however that he paid the client interest of $310 which he referred to as "interest held by default". The Solicitor also waived his costs of $670. In explanation as to how he discovered the error of paying the money into his office account the following appears T322.8: Mr Gullotta: "Thank you. If I might have that book back. I propose to turn to the matter of Morgan. How did you become aware of the error regarding the lodgement of that money into your office account? A. At that particular time the office account overdraft had been very high. I think in June of the same year it had gone as high as $50,000, because there was speculation of there being a partnership, but that didn't eventuate. By arrangement with the bank and myself, from about August, we decided that I would try to start bring it down, hopefully in $5,000 increments, and if that caused a problem ring them and some other arrangement would be made to simply hold it at the higher one. All I can remember is at that time there was more scrutiny of the various bank statements that were going in and the state of the - I think it was down to about $35,000, I had been able to slowly bring it down $5,000 each month, but there was simply more scrutiny of what was going on in regards to the office account, as to the level of moneys. Q. A scrutiny by whom? A. By me having a look at the statements, just keeping a bit more of an eye on the deposit books, because at the stage my office accounts hadn't been written up for quite some time, and that was really my only way of keeping track of what was going on. Q. So the reduction arrangement in connection with your overdraft that you had with the bank commenced in about mid 1990 is that right? A. No it was a bit after, I think it was about August, from memory. They became concerned that it had been high for a couple of months so that was when the arrangement took place." The monies received on behalf of Mr Morgan came in on 28 September 1990 and the Solicitor agrees that by October he was aware of the fact that they had been paid into the office account. Although the Solicitor asserts that he sent a cheque to Mr Morgan in October there is no other evidence in support of this and the Tribunal is left in considerable doubt whether any cheque was sent. In any event the money was not accounted for to the client until January of 1991 and there is a strong inference that the Solicitor was content to leave this money in his office account in order to assist his overdraft arrangements. In the circumstances the Tribunal finds that there has been a wilful breach of Section 61 of the Act. 1(i) Janet Faye Preston The Solicitor acted for Ms Preston in respect of a dispute and potential property settlement concerning her de facto Eric Noel Steele. On 19 December 1988 Ms Preston gave the Solicitor a cheque for the sum of $5,500 being $5,000 towards the proposed settlement monies and $500 anticipated costs. The cheque was deposited to the office account of the Solicitor on 19 December 1988. On 30 April 1990 Ms Preston appointed Messrs Linda Emery & Associates solicitors to act for her and in a letter to the Law Society by those solicitors dated 30 August 1990 they stated that they had been unable to obtain the instruction file or the monies held by Mr Hall on behalf of Ms Preston. In their letter to the Law Society they referred to letters that they had written to Mr Hall on 1 May, 25 May, 20 June, 28 June, 6 July 1990 and telephone calls to Mr Hall's office on 14, 15, 16, 21, 23 May and 26, 27, 28 June and 31 July 1990. According to Ms Sayers' report of 13 March 1991 page 46 she sets out that on 6 December 1990 cheque number 606784 in the sum of $5,500 was drawn on the trust account and is shown in the cash book as debited to the account number A967 in the name of Mr P. McKinnon-Preston/Ferrier. The details given in the cash book in respect of this entry are as follows "Cheque to Linda Emery & Associates solicitors - settlement funds in Preston matter and McKinnon and Ferrier." According to Ms Sayer the cheque was not debited to the account of McKinnon - Preston/Ferrier but was debited to the trust ledger account of J. Blade and E. Ferrier purchase from O'Reilly account number B1 covered by monies received from the clients in relation to their purchase. Ms Sayer further asserts that on the 6 December 1990 when the cheque was drawn, there were no monies in the McKinnon-Preston/Ferrier account. The Solicitor says that the payment of this sum of $5,500 into his office account instead of his trust account was an error. The Solicitor concedes that the money remained in his control from the 19 December 1988 until 6 December 1990 when the cheque was drawn on the McKinnon-Preston/Ferrier trust ledger account and paid to Ms Emery. The Solicitor admits that he did nothing to determine that there were monies owing to Ms Preston when she transferred the matter to her new solicitors and it is clear that he did not check the position between June and November of 1990 despite the fact that in May of 1990 he began to receive correspondence from Ms Preston's new solicitors. The Solicitor has given no credible explanation first for failing to pay the monies into his trust account and second for failing to account to the client for a period of nearly 2 years and third for failing to deal with the matter when his client instructed new solicitors in April in 1990. In evidence the following appears: Mr Gullotta: Q."In the particulars you have, "Settlement funds on Preston matter with McKinnon and Ferrier"? A. Yes. Q. There is no trust folio for McKinnon and Ferrier and no matter involving the two of them together, is there? A. No. Q. So you were intending to refer to two separate trust folios? A. Yes, I put their names there to show that the money came from Blade and Ferrier here and then they were reimbursed by McKinnon, by way of , I think, a trust journal entry. Mr Molloy: Q. You say do you, Mr Hall, that you had authority by Blade and Ferrier to make the payment to Ms Preston? A. Yes, I had authority to make any payment I wanted to anybody. Q. Because the authority stated that Blade and Ferrier authorised you, "To have free use of whatever purpose of moneys held by him (that is you) on our account"? A. That is correct. Q. When you look at Mr Blade's statutory declaration which is Exhibit G, and paragraph six, having regard to that statement, how can you say that you had the authority of Chris Ferrier? A. I say that he never appendaged that in my presence, to the best of my recollection it was - Q. Correct me if I am wrong, but isn't that unchallenged, paragraph six? A. No, because in evidence there are transcripts of the proceeding where Mr Cuddy cross-examined Mr Blade to that matter and they are part of that evidence which has been tendered in these proceedings and that is what I was relying upon, that is why Mr Ferrier, sorry, Mr Blade, was not cross- examined by me, that I was happy to rely on what Mr Cuddy has extracted from cross-examination. I will just see if I can find it. Q. Are you able to assist me in that, because I have some difficulty in that, where do you find that? Mr Gullotta: I might say that as regards Mr Blade's evidence, Mr Blade did attend at the tribunal rooms. Mr Molloy: I know, that is the point I am trying to make, he was not cross- examined. Mr Gullotta: There has been no arrangement as to admission of the transcript as an ersatz cross-examination of him here." The Tribunal cannot accept the Solicitor's explanation in this matter and finds that the Solicitor wilfully breached Section 61 of the Act first by paying the money into his office account and second by failing to account to the client over an extended period of time. 1(j) Mark George Williams It is admitted that the Solicitor acted for Mark George Williams and Franziska Williams with respect to the sale of a property at Eleenbana and the purchase by Franziska of property at Boolaroo which transactions were both settled on 10 April 1989. Following the settlement of these transactions and after deducting costs due to the Solicitor there remained the sum of $2,728.50. On 10 February 1989 the Solicitor had transferred the sum of $1,000 to trust account number A107 entitled re Williams Family Law. On 16 February 1989 the Solicitor transferred to himself the sum of $1,000. The Solicitor relies on a Bill of Costs which is undated in the sum of $3,613 and signed by Mr and Mrs Williams to justify the transfer of $1,000. This bill relates to costs due to the Solicitor in Family Law proceedings including attendances at the Camden Local Court. Although Mr Williams has no recollection of receiving this bill he admits that it has his signature on it but it does not appear to relate to the transfer of $1,000. On 11 April 1989 the Solicitor transferred a further sum of $303.26 to the account of Mee and again on the same day transferred a sum of $1,569.23 to the trust ledger account of P. Watt. It is alleged against the Solicitor that these three transfers of $1,000, $303.26 and $1,569.23 were made without the authority of the client and apart from the Bill of Costs, Exhibit "3", the Solicitor has no explanation for these transfers. The three amounts referred to above come to $2,872.49 and do not reconcile with the account for $3,613 a copy of which became Exhibit "3". The Solicitor asserts that the monies deducted from the balance of the settlement were in part payment of the account (Exhibit "3") and furthermore that there was a final account in the sum of $2,100 forwarded to the parties in June of 1989. No copy of this further account is in evidence and the Tribunal concludes that no such account exists. The amounts transferred are said to have been made without the clients authority. The Solicitor says that he had the verbal authority of Mrs Williams and the account Exhibit "3" was signed by Mr and Mrs Williams. But it was clear from the evidence that the withdrawal of at least the $1,000 was made prior to the render of the account, and was therefore in clear breach of Regulation 8 of the Legal Profession (Trust Accounts and Controlled Money) Regulation, 1988, a breach of which constitutes a breach of Section 61. There is no doubt that at least this transfer was wilful. As far as the $303.26 and the $1,569.23 are concerned, the Solicitor states that the account Exhibit "3" was signed by Mr and Mrs Williams on 10 April 1989. The Tribunal has formed the view that this sequence is probably correct and is therefore not satisfied that these two amounts were dealt with in breach of Section 61. Accordingly the Tribunal is of the opinion that there has been a wilful breach of Section 61 of the Act in respect of the transfer of the $1,000 only . 1(k) John Allen Blade and Carolyn Helen Ferrier It is admitted that the Solicitor acted for Mr Blade and Ms Ferrier in relation to their purchase of a property at 1/ 236 Falcon Street, North Sydney. It is also admitted that the clients paid to the Solicitor the following amounts for stamp duty and costs and disbursements: 17 October 1990 $5,337.00 28 November 1990 $1,706.60. These amounts were credited to the Solicitor's office account and not to his trust account although the Solicitor denies that this was done without the clients authority. It is admitted by the Solicitor that on 5 December 1990 the clients paid to him the sum of $24,300 for balance of purchase money which was paid to the Solicitor's trust account. From this amount on 6 December 1990 the Solicitor paid the sum of $5,500 to Linda Emery the solicitor for Ms Preston. It is also apparent that on 6 December 1990 Mr Hall transferred to himself the sum of $3,424.90 which the Solicitor says in his declaration that he can not explain and he agrees that this would be a breach of Section 61 of the Act. The Solicitor asserts that he had the authority of Mr Blade and Ms Ferrier to use the sum of $5,337 and refers to an authority (Annexure 4 to the Solicitor's declaration, Exhibit "1") which he says was signed by Mr Blade and Ms Ferrier on the date appearing on the document namely 17 October 1990. The Solicitor agrees however that he did not witness Ms Ferrier's signature and Ms Ferrier says that it is not her signature. According to Mr Blade the Solicitor attended at his work in January or February 1991 when he signed the authority after Mr Hall spoke to him words to the following effect: "One of my staff banked the cheque to the office account instead of the trust account. To cover up the error would you mind signing an authority for me." Mr Hall also said words to the following effect: "The Law Society is auditing my trust account and would consider this a breach." Mr Blade agrees that he signed the authority in the presence of Mr Hall who also signed it and that he appended the name C Ferrier to the document at Mr Hall's request and "I dated the document 7 October." The document appears to have been originally dated 7th day of October 1990 and the 7th has been struck out and the figure 17th written above it and an initial placed beside this. Although Mr Blade was in attendance at the hearing he was not cross examined by the Solicitor who says that he relies on Mr Cuddy's cross examination of Mr Blade in the Supreme Court which became Exhibit "T" in the case. A careful perusal of the transcript of the cross examination of Mr Blade by Mr Cuddy in the Supreme Court does not suggest that he was "shaken" in his evidence and the Tribunal accepts the evidence in his Statutory Declaration (Exhibit "G") in preference to the evidence of the Solicitor. Accordingly the Tribunal is of the opinion that the authority signed by Mr Blade was ex post facto and that at the time the Solicitor used his money he had no authority to do so. Accordingly there has been a wilful breach of Section 61 of the Act. Furthermore the Solicitor admits transferring the sum of $3,424.90 to his own account on 6 December 1990 and the Tribunal notes that according to Ms Sayer's evidence there was a payment made by the Fidelity Fund in this matter in the sum of $2,751.26. Accordingly the Tribunal is prepared to find that there was a misappropriation by the Solicitor in regard to this matter. 1(l) M.K. and M.M. Colley The Solicitor acted for Mr and Mrs Colley (referred to in the Solicitor's Statutory Declaration as Coolley) with respect to their purchase of a property 52 Pinehurst Way, Blue Haven and a mortgage to Permanent Trustee Company Limited. On 27 July 1990 Mr and Mrs Colley paid to Mr Hall the sum of $2,510.80 for stamp duty and the sum of $3,313.26 which included $1,145.03 for interest on the mortgage. Both sums of $2,510.80 and $3,313.26 were not paid into the Solicitors trust account and were paid into his office account. It is alleged that contrary to his instructions the Solicitor did not pay the sum of $1,145.03 for interest until 5 December 1990. It is admitted by the Solicitor that he had the use of these funds from 27 July 1990 until 5 December 1990. In explanation the Solicitor says that when the monies where received it was the first day of his winter leave and his staff were in control of the office. Furthermore he had retained a Mr G. Popple a solicitor to perform the role of a "watching" brief over the office. According to Mr Colley's declaration (Exhibit "K") he telephoned the Solicitor on a number of occasions in August, September, October and November 1990 at least once a week and when he could not speak to him he left messages with his secretary. He received a letter dated 13 September 1990 from the Montgomery Co-Operative Housing Society advising that payments under the mortgage were in arrears. Mr Colley says that he spoke to Mr Hall in late November and the arrears were paid early in December. In evidence Mr Colley was shown three deposit receipt butts two of which were from the Westpac Banking Corporation and he said that these deposits which were for stamp duty and conveyancing costs were paid into Mr Halls account at that bank. He was also shown another deposit slip from the Commonwealth Bank which he thought related to house payments on the property and he said "As far as I know they are Kevin Hall's accounts." Mr Colley agreed that the payments in were made by his wife or her grandparents and did not know how they would have obtained the Solicitor's account numbers. Whatever be the position the only reasonable inference is that either the Solicitor or someone in his office informed Mrs Colley or her grandparents of the account numbers so that the payments could be made to these accounts. It is not disputed by the Solicitor that the mortgage arrears were not paid until December of 1990 and that he had the use of the clients funds from July of 1990, and it is therefore inconceivable that the Solicitor was not aware that the funds were in his office account and should have been paid to the mortgagee. In the circumstances the Tribunal finds a wilful breach of Section 61 of the Act. 1(n) David Albert Mee The Solicitor acted for Mr Mee with respect to a sale of a property at Mannering Park and a purchase of a property at Yanco Crescent Cooranbong and in the collection of a debt. It is admitted that the Solicitor credited to the trust ledger account of Mr Mee account number A455 a total sum of $22,737.09. It is alleged that without the authority of the client on 20 June 1988 the Solicitor paid to the Commissioner of Stamp Duties the sum of $4,441.50 in respect of stamp duty payable by S. and M. Hilton. It is also alleged that this transaction was not disclosed in his trust account records. The Solicitor asserts that he had Mr Mee's authority to use his money and specifically states that he does not rely on Annexure F10 to Ms Sayer's report dated 13 March 1991 which is a document dated 1 July 1988 signed by Mr Mee under the Legal Profession (Trust accounts and controlled money) Regulation 1988. The Solicitor however asserts that he had Mr Mee's verbal authority to use these funds provided he received interest. Mr Mee denies this and in his declaration (Exhibit "L") says that there was a discussion with Mr Hall about the use of his funds but he did not agree to this and did not agree to advancing his money to Mr and Mrs Hilton or to Mr and Mrs Northey. Mr Mee was cross examined at length by the Solicitor but maintained that he had not authorised the Solicitor to make any investments. Even if it were accepted that the Solicitor had authority to invest Mr Mee's money, the transactions referred to in the Complaint document concerning Mr and Mrs Hilton could not be considered an investment. The way the money was transferred from the Mee trust ledger account to the Hilton trust ledger account is described by the Solicitor as follows: "Q. How did it come about that money was advanced in connection with that ledger by Mr Mee? A. As set out on page 15 of my statutory declaration, matter of Hughs, Mrs Hilton paid funds to stamp duty which were banked into the office account in error. A cheque was drawn on the trust account and was sent to the Stamp Duties Office. When the moneys were reconciled there were no funds in to cover those funds from the Hilton account. I had authority from Mr Mee to advance those funds to another client and therefore the moneys were transferred from Mr Mee's ledger to the Hilton ledger and that is when I, because it was my error, decided that I would have to pay the interest on it. Q. Let's take it a step at a time. The Hiltons did pay you the moneys needed for the stamp duty? A. Yes, they did. Q. And it was banked into your office account? A. That is correct. Q. You later paid the stamp duty out of your office account? A. No, stamp duty out of the trust account. Q. You later paid the stamp duty out of the trust account? A. That is correct, I think it was a few days. It might have been a few weeks. I can't remember, no, I can't remember. A short time after I then wrote the cheque out, out of the trust account thinking the money was in there. Q. A short period of time after what? A. After receiving the money from the Hiltons. Q. And the money that went to pay the stamp duties was money that was allocated in the books of the trust account to Mr Mee, is that the position? A. Yes. Q. Do you recall when you allocated the payment to Mee's account? A. I am not sure what you mean by allocated. Q. You made a decision at some point that Mr Mee's account was going to be the one that was debited for the money paid for the Hiltons' stamp duty, didn't you? A. Yes. Q. Did you decide that at the time you wrote the cheque or did you decide it at the end of the month or later? A. No, I decided after I discovered the error that I had Mr Mee's authority from some time in May to advance those funds. Q. What was the error? A. The error was there was no moneys in the Hilton trust ledger. Q. How did you draw a cheque on the trust account without checking the position on the Hilton trust ledger? A. As I have said on page 15, I didn't. Q. You didn't? A. I didn't refer to the ledger at that time. As I advised the Society, my trust ledgers were not being written up regularly. Q. Does that mean you were drawing cheques without reference to the ledgers at all at that stage? A. Most of the time yes. Q. So the only guidance you would have had in drawing cheques was the balance of the trust account? A. Yes, and my recollection that a cheque had come in which I was sure had gone to the trust account." The Tribunal does not accept that the Solicitor had Mr Mee's authority to use his money by merely transferring it from his trust account to make up a short fall in another account and finds that there has been a wilful breach of Section 61 of the Act. 1(o) Estate of the late G. Duncan Mr Hall was instructed to act for Ms Kerry Manning in relation to the estate of the late G. Duncan. It appears that Ms Kerry Jean Manning and her sister Wendy Kristine Manning were the executrixes of the estate of their late godmother Georgina Duncan. The Solicitor received from the Westpac Banking Corporation on 14 February 1989 the sum of $1,431.78 and from the AMP Society on 22 June 1990 the sum of $220.70 which he credited to his trust account. On 15 December 1989 Mr Hall drew a cheque for the sum of $501 which he says was in part payment of his agreed costs of $600. On 12 December 1990 he drew a cheque in the sum of $1,030.23 in favour of himself which he is not able to explain. He admits that this was a breach of Section 61 of the Act and in his Statutory Declaration states: "The circumstances surrounding this breach as can be seen from page 46 of the third report (Jean Sayer 6 May 1991) is that it is part of another cheque. Trust account cheques were written in an incorrect amount and upon reconciliation of the accounts the monies were deducted to cover this error. In relation to this matter I will undertake to supply evidence at the hearing that these funds including costs drawn `and authorised' will be refunded to Ms Manning." At the hearing the Solicitor gives the following explanation: "Q. As regards the cheque 788, what is the sum on the cheque butt please? A. $1,163.50. Q. Do you say that is payment out of the trust account related partly or wholly to the Estate of Duncan? A. No. Well, I don't think I understand the question. No, it doesn't relate to it, no. Q. Can you tell the Tribunal what the payment is for and to what ledger in the trust account it relates? A. No, I can't. I thought there was money in trust - when I wrote this cheque out, there was money in trust for costs on another matter. I wrote the cheque out and then when I went to write it up I noticed I had left who it was paid to blank. I couldn't find a credit deposit to match that $1,163.50 and, as I said, the money was then deducted to cover that amount. Mr Chairman: Q. What was left in blank, the name of the payee or the account to be debited? A. In fact, both. Mr Gullotta: Q. The date was on the cheque butt however? A. Yes. Q. You remember it? A. Yes. Well, that is right. Q. And that is the date of 12 December 1990? A. Yes, that is correct. Q. Do you recall when it was that the cheque was written up? A. The cheque would have been - the details on it would have been written at the time it was deducted. Q. No. I am asking you about the writing of the cheque itself. A. Sorry. Q. What I am asking you about is the writing up of the transaction. A. Oh, the transaction. I am sure they were written up before Christmas, between the break between Christmas and New Year when the office had closed. Q. And at that time is it the position that you observed that the cheque butt had no details as to payee or the relevant ledger? A. That is correct. Q. So what did you then do as to the completion of the butt? A. Well, I didn't add anything to the completion of the butt. It was blank. Q. Can you explain why you left it blank, having discovered it to be blank when you were writing up, or having the entries written up at the end of December 1990? A. No, except to write up the butt, no, I can't. To write the butts with the Estate of Duncan on it would have only compounded the problem most probably, but no. Q. Are you aware to whom that cheque was paid? A. Well I can only surmise it was paid to me - well, it would have been paid to me. Q. With the benefit of hindsight and your knowledge of matters as they stood in the practice as you have such knowledge now, are you in any better position to indicate to what account that should relate, if any? A. No, no, no. Q. Are you in a position to say today whether that cheque in fact does relate to any client of yours and money that a client owed you? A. No, only that when I wrote this cheque out that is not at the time, but no, I haven't checked the trust account records." This is no explanation for the use of the client's money and the Tribunal finds a wilful breach of Section 61 of the Act. 1(p) Gwen Parker In this matter the Solicitor acted for Mrs Parker in respect of her purchase of property at 28 Taronga Avenue, San Remo. Mrs Parker paid to the Solicitor by bank cheque the sum of $2,086 to cover stamp duty and disbursements which cheque was deposited to the general account of the Solicitor on 17 February 1989. The purchase of the property was settled on 15 March 1989 and on that date the balance of costs due to the Solicitor of $1,070.10 was drawn from the trust account. On 30 June 1989 the sum of $2,357.70 was drawn on the Solicitor's office account and deposited to the trust account by Mr Hall to cover a cheque which had been drawn against the trust account on that day to cover a cheque for the same amount in the payment of stamp duty together with a fine for late payment. The Solicitor's explanation is that the monies were paid into his office account in error and that the error was not discovered until he received a reminder from his city agent that stamp duty was outstanding. It is admitted that the Solicitor had the use of the client's money from February 1989 to 30 June 1989 and that there was a breach of Section 61 of the Act although he denies that this breach was wilful. The Solicitor has given no explanation other than above for the payment of the money into his office account and the Tribunal does not accept that the Solicitor was ignorant of this until reminded of the matter by his law stationer. The matter was settled on 15 March 1989, no stamp duty was paid at that stage and it is inconceivable the Solicitor was not aware that the stamp duty which should have been paid into his trust account was sitting in his office account. Accordingly the Tribunal finds that the admitted breach of Section 61 of the Act was wilful. 1(q) and (r) Stephen and Margaret Hilton It is admitted that the Solicitor acted for Mr and Mrs Hilton with respect to their property at 23 Bayview Avenue, East Gosford and that he received the sum of $4,841.50 on 26 May 1988 for stamp duty of $4,441.50 and disbursements of $400. The Solicitor admits that this cheque was paid into his general account. On 20 June 1988 a cheque covering the payment of stamp duty was drawn on the trust account in the sum of $4,441.50 and debited to the trust ledger account of David Mee which transaction is referred to previously under the heading Mee. The Solicitor says that he had the authority of Mr Mee to use his monies and this justified this payment. In addition on 10 August 1988 the Solicitor drew a cheque in the sum of $862.22 which he transferred to the trust ledger account of Mee and this is described as interest. The Solicitors explanation is that these were costs owing to him and accordingly were his funds. It is alleged that without the authority of the clients and without rendering any bill the Solicitor transferred an amount of $1,479 on the 29 July 1988. Although no Bill of Costs have been located there is a letter dated 24 June 1988 addressed to the clients (Annexure E5 of Jean Sayer's second report) in which the Solicitor states that he is going on leave and so that he may have their consent for use of his costs and disbursements he encloses a Memorandum of Account. The reasonable inference is that this refers to the amount of $1,479 transferred to the Solicitor on 29 July 1988 so that the only further amount in issue is the sum of $862.22. On the face of it there is no justification for this transfer, it does not appear to be costs owing to the Solicitor and appears to be an unauthorised use of the Hilton trust account to pay interest to Mr Mee. Accordingly the Tribunal finds a wilful breach of Section 61 of the Act in relation to the sum of $4,441.50 being the monies paid into his office account and the sum of $862.22 which was unauthorised which was transferred to the Mee trust account. Although the Solicitor says in his declaration that the sum of $862.22 related to additional costs payable by Mr and Mrs Hilton for work in connection with the mortgage on their home, no Bill of Costs is in evidence and the onus in on the Solicitor to establish that this amount related to costs due to him. The Tribunal is not satisfied that this onus has been discharged. 2. The Solicitor misappropriated monies. The Tribunal has found that there has been a misappropriation of monies in regard to matters of Preston, Simonetti, Blade and Ferrier and the Estate of Duncan. 3. The Solicitor wilfully contravened Section 62 of the Legal Profession Act 1987. In addition to the matters referred to earlier in this document the Solicitor admits that on 18 February 1991 he drew a number of cheques on his trust account. The details of these cheques are set out at page 2 of Jean Sayer's first report dated 26 February 1991. The Solicitor says that these cheques were written out on the afternoon of Sunday 17 February 1991 and it is admitted in three cases that the Solicitor failed to enter on the cheque butts the amount for which the cheques were drawn and in two cases he failed to enter on the cheque butts the purpose for which the cheques were drawn. The Solicitor gives the following explanation (T418-419): Q. "Why weren't the cheque butts for the cheques identified at 3(b) detailed as to the nature of the transactions to which they related? A. You say why weren't they? Q. Why weren't they? A. Some were some weren't. On all cheque butts what was on all of them was the folio number. Either A700 or A761. It was not uncommon to write out cheques and leave details off inadvertently or just in the moment of haste, or whatever and then at the end of the month when reconciling or when the books were written up on a weekly basis, normally on a weekly basis, the full details would be put back in. But what was on the cheque butts was the folio number which allowed me to identify because I knew what - so I would know what folio that matter related to. And I knew when I wrote the cheques out I knew they were all relating to costs and I think some had the word `costs' on and some didn't. But no more than an oversight at the time of writing them up as they were written on the 17 or 18. I think the 17th, in the afternoon on Sunday. Q. You drew them all at the one time didn't you? A. Yes I did. Q. Why did you leave the amounts of some of them blank? A. No more than just an oversight. A simple reference to the folio on the file would have found an account. And there was the amount on the cheque was entered obviously on the cheque. And I had the secondary record that I had the deposit book well until 22 days. When that was removed from the office I had the deposit book to go by. Q. Can you account for the fact that certain of the cheques had upon them their amount and others did not that you drew on the Sunday? A. No, not really. Q. My question relates to the cheque butts I should say? A. No not really, other than just they weren't all written on at that time. Q. You don't know why? A. No." It is clear that the Solicitor when drawing the cheques had no regard to the state of the particular trust accounts in question nor could anyone examining his trust account ascertain without considerable investigation to what accounts the cheques related. The Tribunal is of the opinion that the accounts did not disclose the true position and could not be conveniently and properly audited as required by Section 62 of the Act. Accordingly the Tribunal is of the opinion that the Solicitor wilfully contravened Section 62 of the Act. 3(c) Janet Faye Preston On 6 December 1990 the Solicitor drew cheque number 606784 in the sum of $5,500 in favour of Linda Emery & Associates describing this as settlement funds in Preston matter and McKinnon and Ferrier. The cheque was not debited to the account of McKinnon-Preston Ferrier but was debited to the trust ledger account of J Blade and E Ferrier purchase from O'Reilly account number B1 and because of the Tribunal's findings in relation to this matter the Tribunal finds further that there has been a wilful contravention of Section 62 of the Act. 4. It is alleged that the Solicitor gave false evidence. The allegation is that the Solicitor gave evidence before Mr Justice Lee in the Supreme Court on 1 March 1991 and that the Solicitor's evidence was false when he swore that he had made a loan to Mark Williams of $5,000 on 12 April 1990 and in certain other material aspects relating to that loan. In his evidence before the Tribunal Mr Williams denies that he borrowed the sum of $5,000 from the Solicitor and in fact it is common ground that he had previously loaned the sum of $10,000 to the Solicitor for a period of 12 months at the rate of 23 per cent interest. Mr Williams says that the $5,000 which he received on 12 April 1991 was a part repayment of his loan of $10,000 but the Solicitor in his evidence in the Supreme Court says that "It was a straight loan to Mr Mark Williams" and that a loan agreement existed and he gave details of this agreement which he said was signed by Mr Williams, provided for an interest rate of 18 per cent, was repayable within 12 months and the money was advanced from Mr Keeler. No copy of the loan agreement was produced in the Supreme Court nor has it been produced to this Tribunal although the Solicitor claims that there was an agreement between Keeler and Williams which was hand written at Court, which they both signed and then this was retyped back in the office by his secretary. The following evidence appears in Mr Hall's cross examination before the Tribunal: Mr Gullotta: "May I have access to Exhibits 10 and 11, please, the position is there has never existed a written loan agreement between you and Mr Williams for a loan of $5,000? A. That is not true, there was. Q. Can you identify any document being that written loan agreement? A. No. Q. Do you have a copy? A. No. Q. Where do you say it is, the original? A. It would be either in, more than likely, the Keeler file or in the William's files. Q. Have you looked for it? A. No, because by the time the matter was raised, those files were not in my possession. Q. Yes, but it is alleged in the complaint that you gave false evidence to the Supreme Court in that you asserted that there was a written loan agreement in connection with a $5,000 loan to Mr Williams? A. That is the allegation. Q. Is it the position that you have made no search for that loan agreement in connection with these proceedings? A. No, because I have not had the files, the files were removed from my office prior to that appearance in the Supreme Court. There has been no request to prove that, I don't know where the files are - Q. Have you ever asked for the files from the Society? A. No, I just said I have not, no, there has been no request. Q. Have you subpoenaed them? A. No. Q. I put to you that there was no written loan agreement at all? A. I say that is incorrect. Q. It was a document which evidenced a loan from Keeler, was it not, to Mark Williams? A. That is correct. Q. Personally? A. Yes. Q. Was it ever stamped or lodged with payment of stamp duty? A. I have no recollection of it ever being stamped, no. Q. Was interest paid in connection with the advance to Keeler? A. Yes. Q. By whom? A. By me. Q. There was no independent advice to Mr Williams in connection with that transaction, was there, there being a loan to him, no-one to your knowledge, advised him as to the appropriateness of its terms? A. No. Q. You see I put it to you there never was a loan to Mr Williams of $5,000 at all? A. There was. Q. And that what in fact occurred was that you sought to cover a demand made by Williams for repayment of money he was owed by paying to him money from another client? A. Not true. Q. You owed Mr Williams money as at 12 April 1990, didn't you? A. Yes. Q. How much exactly? A. Somewhere around $8,000. Q. He came to see you about 12 April, I suggest to you, not for the purpose of getting a loan, but for the purpose of getting his money back from you, is that right? A. No. Q. Do you suggest that he came for some other purpose other than a loan from you or getting his money back? A. No, he rang and said that he needed the money back. I said that the loan wasn't due until 3 May, that I had other moneys in the trust with an authority to use, he could come in and we would talk about it. At the time he had got to the office, I had gone up to the court. He came up there, Mr Williams corroborated, he can remember me discussing the question of an advance from another client, and I say that he said that he needed the money urgently, and the agreement was written out, and then in his cross-examination I can vaguely remember that he went back to the office and I suspect that the handwritten agreement which we both signed in the courthouse was, in fact, typed up and re-executed by him back at the office, but I have a clear recollection of the handwritten agreement. Q. Yes, and since then you have made no attempt to locate such document, is that correct? A. That is correct." Having given the matter careful consideration the Tribunal is not prepared to find to its comfortable satisfaction that the evidence given by the Solicitor before Mr Justice Lee was false. Such a finding is tantamount to a finding of perjury. The evidence before the learned judge and this Tribunal is contradictory and, although one might conclude on a lower standard of proof that the evidence given by the Solicitor was false, such a finding should not, in our view, be made in the absence of clear, compelling and overwhelming evidence. 5. The Solicitor was guilty of gross neglect and delay. It is alleged that in the matter of Allan and Estelle Northey the Solicitor acted on an application for re-payment of money under the Unclaimed Money Act 1982. The instructions were received some time prior to 3 September 1987 when the New South Wales Government Treasury by letter informed the Solicitor that it would require letters of administration and a certificate under Section 122 of the Stamp Duties Act in relation to the estate of Mr Allan Northey's late father. It is not clear from the evidence what steps the Solicitor took to progress this matter but during the course of acting Mr Hall advanced amounts totalling $8,000 from other clients. $4,000 was advanced from the client Mee and another $10,000 from the clients Mr and Mrs Hilton, some of which was used to repay Mr Mee's account namely $4,443. It is obvious that the transaction was complicated and the Solicitor had great difficulty in coming to grips with it. It is also relevant that the new solicitors who have taken over the file have still not completed the matter which rather confirms the complications and the difficulty in recovering money from the Government. The client agrees that he has received the sum of $27,000 by way of advances or bills paid on his account from Mr Hall which is about the amount that he is expecting to recover from the New South Wales Treasury. The Tribunal wonders the rationale for the Solicitor making these payments if he did not feel some guilt over the delay in progressing the matter. The Tribunal is of the opinion that in the circumstances there has been neglect and delay but hesitates to categorise this as gross. Accordingly the Tribunal finds that this complaint is not made out. Generally. In the light of the findings made in respect of the matters in the Complaint the Tribunal finds that the Solicitor has been guilty of professional misconduct in a number of significant respects. The remaining question for the Tribunal is whether the Solicitor is a fit and proper person to practise as a solicitor and whether the conduct as found by the Tribunal disentitles him so to practise. No character evidence was tendered by the Solicitor but he has tendered three reports from Dr Kenneth Victor Israelstam, Psychiatrist, these reports being dated 3 June 1992, 12 October 1992 and 11 June 1993. In his report of the 3 June 1992 Dr Israelstam advised that the Solicitor had consulted him in May of 1991 following admissions to the Northside Clinic where he was admitted following an attempted suicide. Dr Israelstam reported that Mr Hall's depression had been building up for several years starting in 1988 and culminating in his suicide attempt in March of 1991. He was of the opinion that Mr Hall's depression arose out of three main stressful areas in his life: 1. Loss of his father; 2. Problems in his marriage; 3. Problems relating to his law practice. He obtained a history that Mr Hall had been the subject of a great deal of physical and emotional abuse at the hands of his father who would frequently beat, humiliate, criticise and reject him for no apparent reason the situation being made worse by the father's severe drinking problem. When his father died in February of 1990 this, reported Dr Israelstam, proved to be particularly stressful for Mr Hall as this released a great deal of unresolved feelings that had been suppressed for many years. The marriage problems arose out of the fact that Mr and Mrs Hall had tried for many years to conceive a child without success and this gradually eroded their relationship until they eventually separated in June of 1991. Dr Israelstam reported that Mr Hall had started his own law practice in 1986 which he had been able to build up to a successful practice in a relatively short time but as his practice grew he was unable to cope with the emotional demands of his work. In particular Dr Israelstam reported, "It is my opinion that Mr Hall is becoming increasingly depressed, and tried to cope by avoiding commitments and disregarding complaints, to the point where he began to destroy the very thing that he had worked so hard to achieve. I believe that Mr Hall was unaware of his self destructive behaviour, had not learned how to monitor his own stress levels, and had always tried to be too self reliant." Dr Israelstam took a history that prior to becoming a solicitor Mr Hall had worked for seven years as a psychiatric nurse and another seven years as a probation officer and that so far as he was aware he had always had a positive record and had never acted irresponsibly. The Doctor considered that Mr Hall should continue with his psycho-therapy which he was undertaking twice weekly and thought at that time he would need therapy for at least another year. The two further reports from Dr Israelstam are in a similar vein and in his report of the 12 October 1992 he gave this opinion as follows: "It is my opinion that given the chance, Mr Hall can be fully rehabilitated to the extent that he will be able to practise law again, in a way that would be a credit to his profession. Given his state of mind at the time, I do not believe that he was suited to cope with the demands of a solo law practice, and he would have been far better off in a more structured area of law." The Doctor concluded that he considered that Mr Hall had a good prognosis and that it would be a loss not only for him but also for the legal profession if his law certificate was removed outright without giving him a chance to be rehabilitated. In his final report dated 11 June 1993 Dr Israelstam reported that Mr Hall had taken his therapy seriously had been attending on a regular basis, his depression has improved a great deal and so had his general level of self worth and self esteem. He reported that he has improved to the point where he is now working on a part time basis teaching legal theory. Dr Israelstam concluded with the following words "In the two years that I have known Mr Hall, I have found him to be a person of integrity, and I am convinced that any misdemeanours that might have been committed by Mr Hall in relation to his law practice would have been a direct result of his depressed mood. I am sure that Mr Hall has never acted out of malice or out of the need for self gain, if anything Mr Hall has been dedicated to helping others to the point where he has not monitored his own needs sufficiently." Dr Israelstam concluded that he would recommend that Mr Hall continue with therapy for at least six months to a year in order to consolidate what he had achieved so far. In evidence in the last day of the hearing Mr Hall advised that he is now starting to teach law as a tutor at the Wollongong University in Company Law and he also does some teaching to accountancy students in Company Law with TAFE. He indicated that he could not see himself wishing to practise law for the next five or ten years. In answer to a question from Mr Molloy (T40A second hearing) the following appeared: Mr Molloy: Q. "Lets limit it to five years, Mr Hall, 10 years is a long way away? A. To go into sole practice. I have, I suppose, regenerated a, for want of a better word, a passion, I suppose, or an interest in the law. I, like all people, worked hard to become a lawyer, part time. I don't wish that to be taken away from me. I would like the opportunity to move into teaching, something which is obviously far less stressful and in the same way I am not involved with clients. I seem to have great success in that area. I seem to be well regarded already and have quite good - I have also just applied, recently, for a job at Coffs Harbour with TAFE, basically starting a new life away from Sydney and Gosford, and, yes, that is what I would like to move into, I have given consideration to undertaking some further studies. I can't at this stage, I have still got other things on my plate that I have got to resolve. They are too stressful - Q. Looking into the future, would you exclude working as an employed solicitor in your future crystal ball? A. In the immediate future. I enjoy teaching, and I mean, even just preparing for this, I only was thinking this morning, I can't imagine getting dressed up every day and coming to do this for a living, no, maybe somewhere down the track as an employed solicitor, but no, at this stage I am more than happy. I seem to change my jobs every eight years, I have been a lawyer basically in practice, maybe now I am going to be a teacher until I retire. That is what I would like to stay in, stay basically in teaching. I mean, in my final written submissions I have stated that if I am given that opportunity, I have no qualms about any conditions placed upon the future of practising certificates, it is completely irrelevant - Q. Would you prefer, would you, to hold your practising certificate? A. As I understand it, I know - well I have got to stay on the roll. I doubt I even need a practising certificate, I think I have just got to stay on the role (sic) so I can teach, but I don't think I even need a practising certificate. I mean, I don't want to practise." It is clear from this evidence that the Solicitor no longer wishes to practise as a solicitor and wishes to continue his teaching of the law for the foreseeable future perhaps even until he retires. At the commencement of the hearing the Solicitor appeared to be in a depressed and demoralised state and at one stage indicated that he was content to hand in his practising certificate. As the hearing progressed the Solicitor's mental state obviously improved to the stage where he handled his defence with skill and competent advocacy. Nevertheless in the light of the Tribunal's findings involving as they do wilful contravention of Sections 61 and 62 of the Legal Profession Act and the misappropriation of monies it is not appropriate for the Tribunal to make any other order than removal of the Solicitor's name from the Roll. The Tribunal points out that whilst Dr Israelstam's evidence is uncontradicted, there is no evidence that he was made aware of the detail of the complaints which have been established against the Solicitor involving inter alia breaches of Section 61 of the Act and dishonesty. Whilst the Tribunal can accept that some of the breaches which have been established may have related to his depression it does not accept that this caused or contributed to the established breaches of Section 61 of the Act and the unlawful use of clients monies. The frequency and extent of movements in the trust account do not, in the opinion of the Tribunal, indicate a depressive condition, but rather a conscious pattern by the Solicitor of transferring money from one client's account to made up for a shortfall in another client's account. On the other hand the Tribunal has formed the opinion that the demands of a sole practice contributed significantly to the strains put on the Solicitor. It would be not unreasonable to conclude that without those demands the Solicitor may well be able at some future time to contribute to society by the practice of law in an environment that does not impose upon him the demands and pressures that are present in the conduct of a sole practice. During the course of the proceedings the Solicitor submitted that the Tribunal should make an order under Section 162 prohibiting the publication of evidence or submissions relating to the Solicitor's psychiatric condition or treatment on the basis that should the Tribunal dismiss all or the greater bulk of the complaints the airing in public of the said evidence and submissions may have a damaging effect upon the Solicitor's psycho-therapy treatment and recovery, and embarrassment to his family, friends and former wife. On the basis of the former submission the Tribunal acceded and ordered non-publication. The Tribunal now vacates that order made on 17 June 1992. In relation to costs, the taking of evidence had concluded on 4 December 1992 when judgment was reserved. Due to the death of the Presiding Member, Mr G.L. Williams, the Tribunal had to be reconstituted and further evidence led and submissions made on 17 June 1993. The Tribunal is of the opinion that the costs relating to that further hearing be borne by each party and that there be no order for the costs relating to 17 June 1993. The Tribunal therefore Orders: 1. That the name of Kevin Charles Hall be and the same is removed from the Roll of Solicitors of New South Wales. 2. That the costs of the Law Society excluding the costs relating to the hearing on 17 June 1993 be paid by the Solicitor such costs to be assessed as if taxed in the Supreme Court on a solicitor and client basis and paid by the Solicitor to the Law Society. 3. If the parties cannot agree on the quantum of these costs either party to have liberty to apply to the Tribunal to determine the amount of these costs under Section 163(6)(b) of the Legal Profession Act 1987. Dated this 5 day of August 1993. 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.