The Legal Services Tribunal of New South Wales CITATION : Charles Edward Austin-Woods [1992] NSWLST 1 PARTIES : Charles Edward Austin-Woods FILE NUMBER(S) : of CORAM: Mr I. Dunlop (Presiding Member) - Mr D Mahon - Mr D Patten CATCHWORDS: Costs - Professional Misconduct - fail to keep client adequately advised - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to keep accounts - Professional Misconduct - misappropriate trust moneys/moneys - Unsatisfactory Professional Conduct - delay :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Northern Territory v Maurice and Others (1987) 69 ALR 31 DATES OF HEARING: 21/02/92 DATE OF JUDGMENT: 02/21/1992 LEGAL REPRESENTATIVES: JUDGMENT: LEGAL PROFESSION DISCIPLINARY TRIBUNAL IN THE MATTER OF CHARLES EDWARD AUSTIN-WOODS DETERMINATION AND ORDERS BEFORE: Mr I. Dunlop (Presiding Member) Mr D. Mahon Mr D. Patten This matter comes before the Tribunal on the complaint of the Law Society of New South Wales ("the Law Society"). The complaint alleges professional misconduct against Charles Edward Austin-Woods ("the Solicitor") based upon 8 separate grounds of complaint, each of which was particularised. In all the complaint related to the affairs of some 23 clients the complaint being pressed as to 22 of those clients at the hearing. In some cases a particular matter was alleged to give rise to more than 1 ground of complaint. It will be convenient to deal first with allegations of breaches of Section 61(1) of the Legal Profession Act wilful breaches of which constitute statutory professional misconduct by virtue of Section 61(7). It is alleged that the Solicitor committed such breaches in relation to three clients namely, Barrett, Trost and Welsh. In the case of Barrett the Tribunal is satisfied on the evidence that the Solicitor transferred from his trust account to his office account the sum of $383.00 which had been paid to him on account of stamp duty and registration fees by an intending lessee in a lease matter which ultimately did not proceed. The transfer was made without the Solicitor rendering to his client a statement of account and was without authority even if the transfer had been made in respect of costs as maintained by the Solicitor. Section 61(1) requires a solicitor who receives money on behalf of another person to hold that money exclusively for the other person. A solicitor may deduct from amounts held in trust costs and disbursements due to him but before doing so must comply with the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988. Inter alia, this requires a solicitor before withdrawing money from his trust account for costs and disbursements to have sent an outline bill. The Solicitor's transfer of $383.00 from the trust account to his office account therefore plainly amounted to a breach of Section 61(1). The question then arises as to whether the breach was wilful. The Solicitor's explanation for what occurred is that no memorandum of fees was ever rendered for the work done by his firm in relation to the proposed lease and that when in about September 1988 the outstanding credit balance in the trust account came to his attention it was his belief that it represented money held in relation to costs and that he was entitled to give the instruction which he gave namely that the sum be transferred to his office account. In the above circumstances it was submitted that the Solicitor's belief was honestly held and that therefore the undoubted breach of Section 61(1) could not be said to be wilful. Reliance was placed upon Re: Hodgekiss (1962) SR NSW 341. The Tribunal is unable to accept that submission. Although there was a gap of nearly a year between the receipt of the funds from Mr Barrett into the trust account and the transfer of them to the office account the merest enquiry by the Solicitor at the time of transfer would have revealed to him the basis upon which the funds were held and the fact that no outline bill of costs and disbursements had been sent. The Solicitor said that he relied upon an assurance given to him by his bookkeeper that the sum of $383.00 represented costs, his own recollection and his perusal of the file. In such a clear case the Tribunal does not accept that the Solicitor should be found to have had an honest belief as to his entitlement to transfer the money. In the opinion of the Tribunal the breach of Section 61(1) in the case of Barrett can only be categorised as wilful. The case of Ms Trost is unusual in that it appears that the Solicitor personally advanced a substantial sum of money as bridging finance to his client in order that she might complete a real estate purchase and avoid the consequences of a notice to complete served by the Solicitors for the Vendor. It is alleged against the Solicitor that he subsequently and without authority applied against the outstanding debt due to him not only the proceeds of the first mortgage when they became available but also the sum of $814.00 refund from the Vendor's Solicitors of an overpayment at settlement and the sum of $1,203.00 refund of stamp duty. Ms Trost's evidence as to this was that she did not instruct the Solicitor verbally or otherwise to apply any moneys received, against the liability for the funds advanced by the Solicitor but she conceded in her Statutory Declaration of 13th August, 1991 that she understood that the moneys received from the first mortgagee Permanent Trustee Company would be used to reduce the advance made by the Solicitor. In answer to Mr Garling, Counsel for the Solicitor, in cross-examination Mrs Trost agreed that she knew that the moneys from the Permanent Trustee Company the first mortgagee were to be applied towards repayment of the bridging loan. The Solicitor's own evidence on the point, as contained in his Statutory Declaration filed in the proceedings, was that he informed Mrs Trost of the proposal that his firm would itself provide bridging finance for her and that she gave verbal instructions to apply the proceeds of the first mortgage and any other moneys paid by or on her behalf in reduction of the bridging finance. In the light of the unusual nature of the transaction the somewhat equivocal evidence of Mrs Trost and the evidence of the Solicitor unshaken in cross-examination that he had Mrs Trost's authority to pay the moneys referred to in the complaint into his office account against his firm's liability for the bridging finance the Tribunal is of the opinion that the complaint in relation to the affairs of Mrs Trost was not established. In relation to the matter in which the Solicitor acted for a Mr Welsh a breach of Section 61(1) of the Legal Profession Act was alleged, particularised as the Solicitor deducting two amounts viz. $1,100.00 on 1 March 1989 and $2,550.00 on 5 June 1989 from his trust account and paying those sums to his general account prior to rendering an account to his client. As to the former of these transfers the Solicitor said that he had express instructions from Mr Welsh to make it. As to the latter transfer of $2,550.00 the Solicitor relied upon his letters to Mr Welsh of 14 April 1989 and 5 May 1989 in which the amount of his costs for acting in a taxation appeal was specified and the client was requested to put him in funds for those costs plus counsel's fees. It was submitted on behalf of the Solicitor that the Tribunal should accept his evidence that he had express authority to transfer the sum of $1,100.00 to his office account and that the letter of 14 April 1989 constituted an outline bill within the meaning of the Regulation sufficient to authorise the transfer of the sum of $2,550.00. The response of the Law Society to these submissions was that the Solicitor did not render any account to his client which could properly be categorised as an outline bill before either of the transfers mentioned. Although the Tribunal is of the opinion that the Solicitor's conduct in relation to the Welsh matter involved at least technical breaches of Section 61(1) of the Legal Profession Act such breaches were in the opinion of the Tribunal not wilful and the Tribunal makes no finding adverse to the Solicitor. The second complaint was that in a number of matters the Solicitor failed to render to his clients a statement of account in relation to trust account balances contrary to the requirements of Clause 7 of the Legal Profession (Trust Accounts and Controlled Money) Regulation. The clients particularised were Kwong, Ho, Burnett, McEwan, Bodian, Smith, Estate Arthur, Estate Christensen, O'Brien and Harpham. In all of those cases the Tribunal finds that the complaint was made out in that in each of the matters the Solicitor failed to furnish at certain times as prescribed by the Regulation a statement of account to his client in relation to moneys held on trust. The sums in respect of which the relevant breaches occurred ranged from $42.00 in the case of Ho to $1,960.00 in the case of the Estate of Arthur. That the breaches occurred was not really an issue. The Solicitor attempted to put some blame for what had occurred upon his Bookkeeper and it was also submitted on his behalf that the breaches should not be regarded as serious. The Law Society's response was that the Solicitor failed to make appropriate enquiries when he became aware that credits existed in his trust account and that he did not have in place any routine or system within his office which would have brought the credit balances to his attention. The Tribunal is satisfied on the evidence that the Law Society established its second ground of complaint and that the circumstances do not warrant other than that a finding adverse to the Solicitor should be made in respect of the matter. Section 61(1)(b) required the Solicitor to comply with the said Regulation and subsection (7) of that section provides that a wilful contravention of subsection (1) is professional misconduct. The Tribunal is not comfortably satisfied that the breaches were wilful. Having said that, the Tribunal may take its adverse findings against the Solicitor upon this ground into account in deciding whether or not a case of professional misconduct at common law has been established. Complaint No. 3 against the Solicitor was of delay in relation to matters involving clients Smith, Estate Arthur, O'Brien, Gormly, Estate Sutherland, Estate Bell and Mathews. As to Smith the allegation was that the Solicitor failed to register a Memorandum of Transfer of a property interest from wife to husband. According to the Solicitor's evidence this delay was a result of express instructions received from Mr Smith not to register the transfer as to do so would alert a mortgagee. This in turn may have so it was claimed repercussions upon the advance by that mortgagee based upon the joint income of Mr Smith and his wife. In the light of the Solicitor's evidence upon this matter the Tribunal is not satisfied that the complaint in respect of it was established. The complaint in the matter of the Estate of Arthur was that the deceased died on 2 March 1988 and that as at the date of the complaint namely 19 November 1990 the Estate remained unfinalised and the Solicitor had a trust account balance of $1,960.00. The Solicitor's answer to this was that the day to day conduct of the Estate was with his employed solicitor Mr David Williams. The Solicitor contended that the Estate was finally distributed on 13 December 1989 and by a statement dated 19 July 1991 sent to the executor under cover of a letter dated 23 July 1991 the Solicitor finally accounted for all moneys held in the Estate which had passed through his hands. The statement indicated that the trust account balance of $1,960.00 had in fact been exhausted by various payments made out of the trust account in December 1989. There is no doubt that in relation to the Estate of Arthur the Solicitor was in breach of Clause 7 of the Trust Account Regulation referred to earlier. As to the complaint of delay the Tribunal is not satisfied on the evidence that it was established against the Solicitor although the evidence at least revealed lack of proper supervision of employees. The Tribunal is not satisfied that a complaint of delay was established against the Solicitor in the O'Brien matter although as indicated earlier the Tribunal is satisfied that there was a breach of Clause 7 of the Regulation. Mr O'Brien was a plaintiff in the Local Court seeking compensation for damage to his property arising out of a motor vehicle collision. It appears that the Solicitor was neglectful to the extent that he failed to object to a confession by the Defendant filed in respect of part of the amount claimed and as a result judgment was entered for a smaller sum than was justified by the nature of the claim. Ultimately, the Solicitor successfully applied for the setting aside of that judgment. At some stage during the proceedings the Solicitor received a payment from the Defendant which he deposited to the credit of his trust account. There was then some disputation as to the person entitled to the benefit thereof, Mr O'Brien having been declared bankrupt. In the result having regard to the Solicitor's explanation for what occurred the Tribunal is of the opinion that an adverse finding based on delay is not available on the evidence. The Solicitor acted for a Ms Gormly in relation to a personal injury claim against her landlord. He received Counsel's advice at the end of May 1988 to the effect that there was no real cause of action. Subsequently on 1 June 1988 the Solicitor rendered an account to his client which was paid on 10 August of that year. Although the Solicitor had informed Ms Gormly that a copy of Counsel's advice would be sent to her upon payment of the account he failed to do so until after the intervention of the Law Society. The Solicitor's explanation for his failure was that there had been an oversight which he remedied in July 1991 by which time he was no longer connected with the firm. Although it is plain that the Solicitor did fail to send a copy of Counsel's advice as promised by him the Tribunal is of the opinion that such failure in all the circumstances did not constitute "delay" sufficient to base a finding of professional misconduct. Furthermore the Solicitor's evidence which the Tribunal accepts was that the day to day control of the matter was in the hands of an employed Solicitor. This may lead to an inference that the Solicitor failed to supervise his employees adequately but that was not alleged in these proceedings as a ground of complaint. In connection with the Estates of Sullivan and Bell the Solicitor conceded the facts set forth in the complaint which were to the effect that the Solicitor in both cases had delayed final distribution. In the case of the Sullivan Estate it was alleged that as at 10 August 1988 the Solicitor was in a position to effect final distribution but did not do so until 30 March 1990 and in the case of the Bell Estate it was contended that when the investigator for the Law Society first made his report on 18 December 1989 the final distribution of the assets in the Estate had not taken place although probate had been obtained on 12 March 1987. In his evidence the Solicitor relied upon the fact that both Estates were handled by employed Solicitors and said that he had been unable to obtain the files. In the absence thereof he said he was unable to explain in any detail what had occurred. Although the admitted facts again reflect upon the quality of the supervision which the Solicitor exercised over his employees the Tribunal is of the opinion that there is not sufficient evidence to justify a find of such a degree of delay as to amount to professional misconduct. As to the matter involving the Solicitor's client Mathews, again the Tribunal is not satisfied that delay occurred which would justify a finding of professional misconduct. Mathews had been charged with murder and had been committed for trial. A trial date fixed by Mr Justice Yeldham had to be vacated because of the unavailability of a Psychiatrist to be called for the defence such Psychiatrist being overseas. Mr Justice Yeldham when vacating the hearing date expressed criticism of the accused's representatives for what had occurred. The Solicitor's explanation was that this matter was handled by his employee Mr Abbott and as the Solicitor did not have access to the file it having been passed to other Solicitors he was unable to proffer a detailed explanation of what had occurred. The Tribunal is not satisfied on the evidence that delay or any other behaviour which could constitute professional misconduct was established against the Solicitor in this case. Again the Tribunal accepts the Solicitor's evidence that he personally did not have the day to day carriage of the matter and, despite the criticism of Mr Justice Yeldham, even if the Solicitor had been personally involved the Tribunal does not regard the evidence as sufficiently cogent to warrant the making of an adverse finding. The Law Society's third ground of complaint was of unethical conduct. The facts established were that in about 1982 a Mr Ellery consulted the Solicitor in relation to two mining accidents in which he had been involved during the course of his employment, one occurring in November 1980 and the other in November 1981. In 1987 Mr Ellery complained to the Law Society about the Solicitor's lack of diligence in pursuing the matter and on 28 July 1988 the Council of the Law Society resolved that the Solicitor was guilty of conduct which fell well below the standard of diligence and competence expected of Solicitors. Thereafter there was correspondence about the Solicitor's Bill of Costs which ultimately was taxed and allowed at $3,931.55 the Solicitor's bill having been brought in at the sum of $7,240.17. On the evening of March 28, 1989 Mr Ellery participated in a television program "The Investigators" broadcast by the ABC. The tenor of the relevant part of the program was critical of the Solicitor who thereafter namely, on 5 April 1989 caused an advertisement to be published in the Blue Mountains Gazette. It was this advertisement admittedly published by the Solicitor which gives rise to the complaint of unethical conduct. It is not necessary for the Tribunal to set out the advertisement in full, suffice to say that it was headed "Statement by Dr C.E. Austin-Woods Concerning ABC's Investigators Program Broadcasted 8.00 p.m. Last Tuesday March 28, 1989". The advertisement purported to be signed "C.E. Austin-Woods, Ferns Aubrey Grogan & Austin-Woods". The advertisement summarises in some detail the instructions said to have been given by Mr Ellery to the Solicitor and quoted Counsel's advice to the effect that Mr Ellery did not have a good cause of action. There is no doubt that taken by itself the advertisement constituted a gross breach by the Solicitor of his professional and ethical obligations. However it was submitted on the Solicitor's behalf that Mr Ellery by his participation in the Investigators program had waived the privilege of confidentiality attached to his communications to the Solicitor. In support of this submission reliance was placed upon such cases as R.V. Davies 1921 21 SR NSW 311 and Re Golightly (1974) 2 NZLR 270. As to the fact that such waiver might be implied by the actions of the client reference was made to Attorney General for the Northern Territory v Maurice and Others (1987) 69 ALR 31. As an alternative to the submission that the Tribunal should find waiver by the client of his privilege it was submitted that the Solicitor's conduct was the result of an honest belief that the privilege had been waived and therefore could not constitute misconduct. The Solicitor conceded in cross examination that some of the material set forth in the advertisement could not have been gleaned from the television program and in answer to the question why he had included in the advertisement the statement that Mr Nelson (Counsel) recommended obtaining the opinion of a Mining Expert on safety and mining engineering from the University of Sydney the Solicitor answered: "I put that because I considered the broadcast which was cut down from at least 45 minutes to what was shown as completely biased. I thought that Mr Ellery had waived any privilege, that he advised the TV people his side of the case in detail. They had questioned me even before the 47 minutes of the unabridged or 45 minutes of the unabridged version was recorded. The details, personal details, they omitted putting in the TV broadcast my explanation that, "I have done nothing" and "I have this great file" That was omitted. I considered the broadcast to be completely biased and damaging and as I stress, there was no ill feeling to Mr Ellery done whatsoever. It certainly was to the ABC." (Transcript p.63)" Later in the cross examination the Solicitor was asked whether he considered that the placing of the advertisement might lend some assistance to the Defendant in preparation of its case against Mr Ellery to which he replied: "No I did not." (Transcript p.63.9) As to this it should be mentioned that according to the evidence Mr Ellery is proceeding with his case through other Solicitors and it is presently awaiting trial at Bathurst. This matter has troubled the Tribunal in that as indicated above the advertisement prima facie constituted a quite unacceptable breach of the Solicitor's fundamental obligation to keep the affairs of his client confidential. The Tribunal did however have the benefit of viewing the television program referred to which was admitted into evidence and there is no doubt that the program was severely critical of the Solicitor's conduct and contained much material which could only have been furnished by Mr Ellery. Although it is true that some statements in the advertisement were outside the ambit of the television program the Tribunal does not consider that the material in the advertisement in so far as it added to the material in the television program was likely to operate to Mr Ellery's detriment. The Tribunal is of the opinion that the evidence does not justify a finding that Mr Ellery waived his privilege of confidentiality and the Tribunal is of the opinion that the publication of the advertisement by the Solicitor was quite wrong. However the Tribunal accepts the Solicitor's evidence that he believed that the privilege had been waived and that it was proper for him in seeking to protect his professional reputation to cause the advertisement to be published. In those circumstances the Tribunal is not satisfied that the publication of the advertisement constituted professional misconduct. The Law Society's fifth ground of complaint was that the Solicitor in the matter of two Estates where he was both Solicitor and Executor took costs when not authorised by the Will in breach of Section 41(1) of the Legal Practitioners Act. The complaint concerned the Estates of Christensen and Bell and in both cases it appears on the evidence that the Solicitor having accepted appointment as Executor was not entitled to charge for professional services rendered to the Estate. The facts were not in issue but the Solicitor explained that the Estates were handled by employees and he did not have the opportunity to direct his mind to his entitlement. Plainly, the Solicitor failed to comply with the provisions of the said Section 41(1) but the Tribunal is not comfortably satisfied that such failure was wilful within the meaning of Section 43. The Solicitor was plainly wrong in not exercising better supervision of his employees and in not paying due attention to matters in which he had a responsibility as executor. The Tribunal is not however satisfied that the facts justify a finding of professional misconduct. The sixth ground of complaint which is related to the fifth ground alleges that in the Estate of Sullivan the Solicitor acting as Solicitor and Executor deducted monies from Estate funds on account of costs and disbursements when not authorised by the terms of the Will and in breach of Section 61(1) of the Legal Profession Act. The facts were not disputed by the Solicitor. His explanation was that the matter was conducted by employees and that he is now unable to elaborate further without access to the file. It seems plain on the evidence that in the Sullivan Estate there was a breach of Section 61(1) of the Legal Profession Act in that costs were transferred from the trust account to the office account without authority and without an account having first been sent to the client. However in the light of the Solicitor's evidence that the Estate was handled by an employee the Tribunal is not satisfied that the breach of Section 61(1) was wilful in this particular case and is not satisfied that the facts warrant the making of a finding upon the complaint adverse to the Solicitor. The Law Society's complaint number 7 was that the Solicitor in a number of respects was guilty of gross negligence in the management of the affairs of several of his clients. It appears from the evidence that the Solicitor's client Mr Kier had funds available to lend from time to time and it was alleged that in relation to loans of Mr Kier's money to other clients namely, Messrs Green, Field, O'Brien and Mathews the Solicitor in dereliction of his duty preferred the interests of the borrowers to the interests of Mr Kier and placed his funds at risk. In the case of Green it was alleged that the Solicitor made an unsecured loan of $500.00 which had not been repaid, as at the date of the Law Society Inspector's Report. The case of Field concerned a loan of $1,850.00 which was to be secured by a Bill of Sale. It was alleged that the Bill of Sale although prepared was not properly executed, was incomplete and was not in registrable form. In the case of O'Brien which concerned a loan of $2,000.00 it was alleged that the loan was not documented at all and in the case of Mathews an allegation was made similar to that in the case of Field that the security of a Bill of Sale was not properly taken. It would seem that the basis of the Solicitor's authority from Mr Kier was contained in Mr Kier's letter of 24 November 1981 in these terms: "I hereby and authorise and direct to invest any monies you are holding for me on trust in long term investments with the exception of $5,000.00 which I wish you to invest in short term securities. "I hereby authorise and direct you to pay me any interest accruing from any of these investments up to a maximum of up to but not including $20.00 per week and any interest accruing over the sum of $20.00 per week to be divided equally between my children." The Solicitor's evidence was that he recalled specifically discussing with Mr Kier the fact that some of the loans which would be made on his behalf would be without security. The loan of $500.00 to Mr Green was subsequently repaid by the Solicitor personally under cover of a letter dated July 23, 1991 to Mr Kier's then Solicitors. The Solicitor said that he could not deny the deficiencies in the Bills of Sale taken from Field and Mathews because he had been unable to locate either file. His evidence was that the loan to Field was repaid and that he personally repaid the loan to Mathews undercover of a letter dated 23 July 1991 to Mr Kier's then Solicitors. The Solicitor contended that the loan to O'Brien was adequately documented by a form of letter addressed to the Solicitor, signed by Mr O'Brien in these terms: "This is to receipt an amount borrowed from you of $2,000.00." There was evidence that the Solicitor on 23 July 1991 personally paid to Mr Keir's solicitors $1,675.00 representing the debt then due by O'Brien. At the hearing before the Tribunal the Solicitor in further explanation of his conduct in relation to the Kier loans said that his bookkeeper had a file upon which he used to question her from to time. He believed that there was nothing untoward. The Tribunal is unable to accept this explanation as providing exculpation to the Solicitor. In the Tribunal's opinion the Solicitor having been entrusted with funds for investment on behalf of his client, Mr Kier, and having accepted that responsibility, was obliged to ensure that those funds were advanced in a responsible and secure manner. The Tribunal doubts whether the making of a wholly unsecured advance even of a relatively small amount could be justified except pursuant to express instructions in relation to that loan. The cases where the loans were intended to be secured but the Solicitor failed to prepare and have executed appropriate documentation amounted in the Tribunal's opinion to such a gross failure by the Solicitor to protect his client's interests in relation to monies entrusted to his keeping as to attract a finding of professional misconduct. Apart from the matters relating to loans on behalf of Mr Kier two other matters were relied upon by the Law Society as justifying its complaint of gross negligence. The first concerned the Estate of Williams and the second the client Smith. In relation to the Williams Estate it was alleged that the Solicitor was instructed to act in an Estate the whole asset of which comprised a mortgage which had been repaid a few days before the date of death, the payment according to the evidence having been dissipated in the meantime. The Solicitor made formal application in April 1988 for letters of administration in order that the mortgage might be discharged. This application was rejected by the Court and, according to the evidence was unnecessary, as there were much simpler and cheaper means of having the mortgage discharged. In relation to this matter the Solicitor said that he relied upon his employee Mr Kidd and pointed out in his statutory declaration that the work performed by his firm included an application for a new certificate of title. It was submitted on the Solicitor's behalf that there was no evidence of gross negligence in relation to this matter. On balance the Tribunal is not persuaded that any finding adverse to the Solicitor should be made upon it. As to the matter of client Smith the Law Society relied upon facts referred to earlier in these reasons. In light of the Solicitor's evidence as to the express instructions which he received in relation to the matter the Tribunal is not persuaded that any adverse finding should be made. Ground 8 of the Law Society's complaint was that the Solicitor in breach of Section 62(2) of the Legal Profession Act failed to keep accounting records in such a manner as enabling them to be conveniently and properly audited. As to this the Law Society relied upon matters contained in the report of Mr G.S. Lewis in evidence in the proceedings. The Tribunal accepts Mr Lewis' evidence following a detailed investigation that after 1 January 1988 the accounting records of the Solicitor were not kept in a manner which enabled them to be conveniently and properly audited. A breach of Section 62(2) of the Legal Profession Act constitutes professional misconduct if wilful by virtue of Section 62(4). Although the material before the Tribunal indicates inadequate supervision by the Solicitor of his employees and although the Solicitor's own experience and competence seems to have been inadequate to the task of managing and controlling a practice in accordance with the provisions of the Legal Profession Act the evidence does not in the Tribunal's opinion justify the making of a finding that the breach of Section 62(2) was wilful. The final complaint alleged against the Solicitor was that he committed breaches of various clauses of the Legal Profession (Trust Accounts and Controlled Money) Regulation. Again the Law Society relied upon the report of Mr Lewis and again the Tribunal accepts Mr Lewis' evidence that there were a number of breaches by the Solicitor of the Regulation referred to including insufficient particulars on receipts, insufficient records of the purposes for which cheques were drawn, inadequate description of transactions in the trust ledger and failure to provide all of the information required to be provided in relation to preparation of trial balances. However the Tribunal is not satisfied that the Solicitor's various breaches of the Regulation relating to the keeping of trust accounts were wilful and the Tribunal does not with regard to these matters make a finding of professional misconduct. As appears from the above reasons the Tribunal in some matters has concluded that the conduct of the Solicitor amounts or could amount to professional misconduct. In relation to other matters the Tribunal was not persuaded that the evidence was sufficiently cogent to warrant the making of adverse findings. In a number of cases the evidence revealed a failure by the Solicitor to supervise his staff adequately or to put in place appropriate office systems and procedures. Nonetheless it must be said in the Solicitor's favour that there was no suggestion in any of the evidence before the Tribunal of conduct by the Solicitor which could be categorised as dishonest or from which he obtained an improper benefit. The Tribunal has however found some elements of professional misconduct established and accordingly must determine the orders appropriate to be made under Section 163(1) of the Legal Profession Act. For this purpose the Tribunal deems it appropriate to take into account the Solicitor's background and also the evidence of good character tendered on his behalf. The Solicitor was first admitted to practice in New South Wales as a Barrister on July 27, 1963 having previously been employed as a Police Prosecutor. He was admitted to practice as a solicitor of the Supreme Court of New South Wales on 26 July 1968. Apparently he did not practice at the Bar but instead worked as Legal Clerk and Legal Officer first with a firm of Solicitors in the country then with a succession of Government bodies and large corporations. During this period he also engaged part-time in teaching law. In August 1981 he acquired the practice of Ferns Aubrey & Grogan changing the name to Ferns Aubrey Grogan & Austin-Woods. Prior to that acquisition he had no experience in the keeping of trust accounts. The Solicitor sold the practice in December 1990 and according to his evidence has not practised since as a Solicitor. A number of statutory declarations were tendered on the Solicitor's behalf in which the deponents spoke highly of his integrity and professional ability. One such statutory declaration was from Mr Alan Hyam a practising Barrister and also Lord Mayor of the City of Parramatta. Mr Hyam deposed to the fact that he had known the Solicitor for approximately 22 years and had found him to be a person of good fame and character who dedicated himself to his professional work and community activities. Mr Hyam expressed the opinion that the complaints made against the Solicitor were out of character and contrary to his knowledge and experience of the Solicitor. In the circumstances of this case the Tribunal is satisfied that it is not necessary for the protection of the public that the name of the Solicitor be removed from the Roll or that the right of the Solicitor to practice should be otherwise restricted. The Tribunal believes that if the Solicitor returns to private practice the matters upon which the Tribunal has found adversely to him are unlikely to arise again. Its findings do however in the opinion of the Tribunal merit more than a mere reprimand particularly as some of them involve dereliction of the Solicitor's duty in relation to moneys entrusted to him. Although the amounts involved were not large the Tribunal regards any breach by a Solicitor of his duty to safeguard properly moneys entrusted to his care as very serious indeed. The Tribunal is of the opinion that the imposition of a fine would meet the exigencies of this case and in determining the amount of such fine takes into account the fact that the Solicitor has voluntarily refunded moneys to his clients in several cases which are the subject of the complaints before the Tribunal. In the light of the findings made against him the Tribunal is also of the opinion that the Solicitor should be ordered to pay the Law Society's costs. The Tribunal therefore makes the following findings and orders: 1. That the Solicitor Charles Edward Austin-Woods is guilty of professional misconduct. 2. That the Solicitor pay a fine of $5,000.00 within 28 days. 3. That the Solicitor pay the costs of the Law Society such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court. 4. That if an agreement cannot be reached between the Solicitor and the Law Society on the amount of costs either party have liberty to apply to this Tribunal. DATED the 21st day of February 1992. 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.