Robert Wilcox Gillroy [1998] NSWLST 1

The Legal Services Tribunal of New South Wales

CITATION : Robert Wilcox Gillroy [1998] NSWLST 1 PARTIES : Robert Wilcox Gillroy FILE NUMBER(S) : of 1997 CORAM: Mr G B Molloy (Presiding Member) - Mr R. Turner - Ms L. Bubniuk CATCHWORDS: Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - misappropriate trust moneys/moneys :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: 23-24 July 1998 DATE OF JUDGMENT: 07/24/1998 LEGAL REPRESENTATIVES: Mr. Robinson Mr Wales

JUDGMENT:

By Amended Information filed 25 May 1998 the Law Society preferred 12 composite charges against the solicitor arising out of activities of the solicitor from March 1994.

The particulars are fully set out in the Amended Information. The solicitor in his Reply admitted some of the charges, denied some and confessed and avoided some.

The hearing commenced yesterday, the solicitor gave evidence and was due to resume his evidence today but this morning we were informed that the solicitor conceded that most of the charges were properly made out and we state on the evidence that we are so satisfied.

There is no need for us to set out in contested detail the charges, but in summary:

Thirteen matters of wilful contravention of the Legal Profession Act s.61. These charges the solicitor conceded. In a typical example the solicitor would receive moneys consequent upon a successful Victims Compensation Tribunal appeal to the District Court and, on receipt of the verdict moneys by cheque payable to the client, the solicitor placed the cheque in his personal account styled "R. W. Gillroy" with a credit union.

Thirteen similar matters where moneys on account of professional costs were, upon receipt, also paid into the same credit union account. This constituted Tribunal is not prepared to make a finding on each of these matters because of the concessions made, the course this matter has taken and the absence of detailed submissions on this aspect. The Tribunal concedes that it is distinctly arguable that, as a practical matter, a solicitor who is in receipt of a costs order in favour of his/her client is, absent any requirement to pay others from that money, entitled to appropriate the money paid for those costs to his/her own account. The Tribunal is aware that costs are traditionally regarded as an indemnity for the client but in the current climate of regulatory costs in Victims Compensation appeals, worker's compensation legislation and speculative costs (Legal Profession Act s.186) there may be a strong argument that in restricted circumstances the entitlement of a solicitor to costs so awarded or recovered may well be absolute. However, the final determination on this aspect will have to await another day notwithstanding Mr Robinson's submission yesterday that the profession would be well-served by a pronouncement by this Tribunal on this subject.