The Legal Services Tribunal of New South Wales CITATION : Michael John Charles Caiger [1993] NSWLST 14 PARTIES : MICHAEL JOHN CHARLES CAIGER FILE NUMBER(S) : of 1993 CORAM: Ms A Plotke (Presiding Member) - Mr C. Robison - Rear Admiral G. Griffiths CATCHWORDS: Competence and diligence - Professional Misconduct - conviction for indictable offences - Professional Misconduct - misappropriate trust moneys/moneys :- Leave to be employed LEGISLATION CITED: Legal Profession Act 1987 Briginshaw v Briginshaw 60 CLR 336; CASES CITED: Re Clayton 1962 SR 132, Ex parte Boyland 80WN 943; In the matter of the Legal Practitioners Act 1898-1936; In the matter of Clem Alexander Parbury delivered May 1989. DATES OF HEARING: 14 and 24 September 1993 DATE OF JUDGMENT: 11/08/1993 LEGAL REPRESENTATIVES: Mr I. Wales (instructed by Mr F. Smith) appeared for the Law Society of New South Wales. Mr D. English of Messrs Paul A. Curtis & Co appeared on behalf of the Applicant. JUDGMENT: This was an application by Michael John Charles Caiger (the Applicant) under Section 121 of the Legal Profession Act 1987 (the Act) for leave to be employed and to be paid in connection with the practice of Paul Anthony Curtis a solicitor of the Supreme Court of NSW. Section 121 of the Act provides as follows:"(1) It is professional misconduct if a solicitor, in connection with the solicitor's practice as a solicitor, employs or pays a person the solicitor knows to be - (a) a disqualified person; or (b) a person who has been convicted of an indictable offence and does not hold a current practising certificate. (2) Subsection (1) does not apply in relation to a person employed or paid in accordance with leave given - (a) in the case of a disqualified person - by the Law Society Council; (b) in the case of a person who has been convicted of an indictable offence by the Tribunal; or (c) in either case by the Supreme Court on an appeal under subsection (3). (3) If the Law Society Council or the Tribunal decides to refuse an application by a person for leave under this section, the person may appeal against the decision to the Supreme Court which may - (a) confirm the decision appealed against; or (b) give leave for the appellant to be employed or paid in connection with the practice of a solicitor. (4) Leave given under this section may be limited as to time or given subject to specified conditions. (5) A disqualified person shall not seek employment or payment in connection with a solicitor's practice unless he or she first informs the solicitor of the disqualification or conviction.Penalty: $1,000. (6) Proceedings for an offence under subsection (5) may be brought at any time within 6 months after the discovery of the offence. (7) For the purposes of this section, the Tribunal shall in each case be constituted as determined by the president of the Tribunal. (8) In this section -`disqualified person' means a person (other than a person who has been convicted of an indictable offence) - (a) whose name has, otherwise than at his or her own request, been removed from the roll of barristers, or the roll of solicitors, in the Supreme Court; (b) whose name has been removed from a roll kept outside the State that corresponds to the roll of barristers, or the roll of solicitors, in the Supreme Court; (c) who is suspended from practising as a barrister or solicitor in New South Wales or another State or Territory; or (d) who is the subject of an order in force under section 120." The Law Society of New South Wales (the Society) opposed the application. The evidence before the Tribunal for the Applicant consisted of: (a) statutory declarations of: (1) the Applicant made 2 June 1993 (2) Paul Anthony Curtis, solicitor, made 1 June 1993 and 17 September 1993 (3) Bernard Sharpe, barrister, made 1 June 1993 (4) Eric Lindsay Oates solicitor and formerly Detective Senior Sergeant in the NSW police Service attached to the Fraud Squad made 7 June 1993 (5) John Edgar Rowe, barrister made 1 June 1993 (6) Alan J. Smith made 2 June 1993 and (b)Oral evidence by the Applicant and Paul Curtis. On behalf of the Society the evidence comprised the following: (1) statutory declaration of F.J. Smith made 14 September 1993 (2) schedule of offences (3) statement of the Applicant dated 24 August 1989 and (4) statement of Detective Oates. Background At the time of the hearing the Applicant was aged 55 years, was divorced and had a son and a daughter born 1964 and 1965 respectively. He held a Bachelor of Arts Degree from Oxford University and had served from 1956 to 1966 in the British Army Royal Engineers. He enlisted as a private soldier. He served in Malaya on active service from 1957 to 1960 and reached the rank of Captain in 1966. He worked for two years with an advertising agency as account executive on the army recruitment account and immigrated to Australia from Great Britain in 1969. From 1969 to 1982 he was associated with publishing, outdoor advertising and media representation. From 1984 to 1989 he worked as a barrister's clerk. The Applicant was on 19 January 1990 convicted of 40 counts of forgery and 40 counts of uttering involving cheques in the total sum of approximately $22,500.00 by Deputy Chief Magistrate Mrs A. Karpin at the Local Court, 302 Castlereagh Street, Sydney. He was placed on a recognisance in the sum of $2000.00 to be on good behaviour for three years. The charges arose out of his misappropriation of funds under his control while he was clerk to Saclay Holdings Pty Limited which was the administrative entity to 9th Floor, Windeyer Chambers, a floor of barristers situated at 225 Macquarie Street, Sydney. According to the evidence of the Applicant, he commenced employment in this position in February 1984, started to misappropriate floor funds in October 1987, resigned as clerk in October 1988, and at the request of his employer stayed on until 25 January 1989. Two days later he took up appointment as clerk at Lachlan Macquarie Chambers. Two days after commencing this new position he confessed his misconduct to the Deputy Head of Windeyer Chambers, John Rowe. On 8 February 1989 he voluntarily made full restitution of the funds previously misappropriated by him and paid an additional $3,500 for lost interest. Thereafter on 9 March 1989 W.S. Reynolds one of the barristers from 9th Floor, Windeyer Chambers brought the matter to the attention of the police, laid an information and informed A. Delaney, barrister at Lachlan Macquarie Chambers, of the Applicant's actions. On 9 March the Applicant was dismissed from Lachlan Macquarie Chambers. Detective Oates of the Fraud Squad was assigned as case officer to the matter. The Applicant pleaded guilty and offered to assist Detective Oates in any way he could. He made a full statement outlining his actions and expressing his contrition. Since his conviction he has not come to the attention of any law enforcement agency and prior to the conviction his only offence was a speeding charge dealt with pursuant to Section 556A of the Crimes Act some two years earlier. Since his conviction in January 1990 the Applicant had, except for some days of employment in various capacities with a number of organisations, been unemployed. He made a significant number of applications for work but because of his criminal record and his age and the current economic situation he had not been able to find employment. In his oral evidence he stated that:"I have a degree of expertise in respect of the workings of the Court system, in particular, and other aspects of the legal profession in general. I would hope that if my application were to be successful that it would enable me to regain some of my self respect amongst those people whom I have let down." (6T) In answer to a question put to him by his solicitor, Mr English, regarding the possibility of his committing any further offences he said: (T6)"I think there are three very cogent reasons why I would not offend again. The first and foremost is that the pressures which I have been led to believe as a result of psychiatric treatment and my doctor, were such - sorry, let me re-express myself, that I would not be likely to have this recur because I now understand myself so much better. I recognise when stress has come upon me and I know how to obviate the problems that are there. I think the second reason is that I never again, and I can understand how you perhaps would not fully understand this, but the mental anguish that I have been through in the last five or six years is such that I would never want to ever put myself through that again. It has taken a long and slow period of rehabilitation from my point of view and I could never really go through the mangle again, the way I have over this period of time and the third reason, I think, Mr English has touched upon, I realise that if I deviate one hair's breadth from the straight and narrow then I am looking at a custodial sentence". Mr Caiger was cross examined regarding the details of his offences and gave a frank account of his conduct: he was a signatory to the cheque account of the floor together with Mr John Rowe. He forged Mr Rowe's signature on 40 occasions, wrote his own signature and cashed the cheques. (8T) He falsified the cheque butts and at the time of the annual 1986/87 audit explained to the auditor that the particular cheques which he had forged were of a nature where he would recoup the money from the individual barrister concerned so that the item covered by the cheque became a recoverable item. On all those cheques where he misappropriated the money he nominated the amounts as recoverable items to be debited against a specific barrister's floor fees. (9T) An audit normally took place in November/December. The 1987/88 audit was delayed for reasons not relevant to the Applicant and had not taken place when he left. Mr Caiger was cross examined regarding the principal reason why he confessed to Mr Rowe early in 1989 and the following evidence was given at 11T:"Q. So that it was clear to you, was it not, that the auditor would discover that there was an unexplained short-fall?.A. At that stage I was of two minds as to whether or not to immediately put the shortfall back or to go to my then deputy floor leader, John Rowe, and tell him what he [sic] had done. My mind at that stage was not thinking clearly. I was in a terrible state emotionally and I suppose subconsciously I really wanted to be found out because I knew what I had done was wrong and I wanted to be punished. I could have put the money back at any stage and no-one would have been any the wiser. Why I did not, I have no idea.Q. Would you answer the question I put to you which was this, that as at the end of 1988 you were conscious that an audit of the floor company's accounts would throw up an unexplained shortfall of some $22,000?.A. Yes, sir.Q. That is because although cheques had been drawn totalling $22,000-odd, they hadn't been - ?A. Recovered.Q. Recovered or allocated to any particular account?A. Correct, sir.Q. In the books of the company, and you appreciated as at, for example, December 1988 that pretty soon the game was up?A. Yes.Q. And that was the reason or a principal reason why you went to Mr Rowe in early 1989 and told him what you had done?A. That wasn't the principal reason, no.Q. It was apparent to you that the shortfall would be discovered?A. Yes, it was apparent to me.Q. It was also apparent to you that even if you drew your own cheque for $22,000 and paid it back into the company's account, questions would be asked about that particular payment to the company?A. Yes.Q. There was no convenient way in which your misdeeds could be covered up?A. I don't know, I don't - you know, I wasn't really thinking along those lines at that stage. I knew what I had done was wrong, I wanted to unburden myself of that guilt and it was for that primary reason I went to John Rowe.Q. You wanted to unburden yourself, I suggest, in a context where it was apparent to you you were fairly soon going to be found out?A. Sir, if I was concerned about that I would have, you know, I would have stopped the stealing beforehand. I just wasn't thinking properly. It was to relieve myself of the guilt factor.Q. In a context where, I suggest, it was obvious to you that you were soon going to be found out?A. That may be the interpretation you place upon it. To the best of my memory it is not the emphasis that I placed upon it at the time.Q. From October 1987 throughout all of 1988 you embarked upon a process of calculated deception, it that right?A. Yes, sir.Q. Overall on 40 occasions you forged cheques and cashed those cheques?A. Correct, sir." The period during which the Applicant committed the offences for which he was convicted extended from October, 1987 to November, 1988. He made no attempt to excuse his misdeeds and repeatedly declared his contrition and shame at his actions. At the relevant time he had been under considerable personal stress. At work he was unhappy because four barristers were making life unpleasant for him. They were antagonistic towards him and tried to have him dismissed and in hindsight he saw the fundamental cause as a clash of personalities. In his domestic life the parents of his fianc'e died in August and November 1987, the fianc'e started drinking heavily in November of that year, was admitted to a clinic for dipsomaniacs in the following March and died from alcoholism in June 1988. His own mother became ill and hospitalised in December 1987. He became unhappy and depressed. He started to drink heavily at the NSW Leagues Club after work in the company of a number of barristers who were sympathetic to him. They used to play the poker machines very heavily and he joined them on a regular basis. In his oral evidence (13T) Mr Caiger stated that he had sufficient funds from his own resources to pay back what he had taken. In his statement made to the police in August 1989 he stated that after being invited to join the barristers "school" he soon ran through his reserve capital, went into overdraft and in order to keep their company began to steal from his floor account. He was cross-examined regarding the discrepancy between this statement and his evidence that he had the ability to repay the money at all times. He conceded that the police statement was not entirely accurate and gave the explanation that at the particular time his mind was a windmill. He said at 14T:"Q. Your mind was what?A. A windmill, I was certainly not thinking in a clear, concise manner and all I wanted to do was to get the whole thing over and done with, make it easy for the police to proceed and get the matter heard and dealt with so I could crawl under a rock". Another discrepancy in the evidence of Mr Caiger related to the date of his resignation as clerk to Windeyer Chambers. He stated that he resigned in October, 1988 to stop stealing and that this date was correct to the best of his knowledge. However the list of offences (Ex B) from the Local Court file showed that the date of the last offence was 29 November, 1988. He was cross-examined about the date of his resignation and gave the following evidence at (16T):"Q. You tell us that in October, 1988 you resigned as a clerk to stop stealing, is that right?A. Right, sir.Q. Why did you resign as a clerk to stop stealing?A. I was, at that stage, so desperately unhappy with my life that I felt it beholden upon myself to remove myself from temptation and to try to take on the chin the punishment that I knew as going to come to me and to try and get on to rehabilitate my life because I felt so disgusted with what I had done.Q. And it was for that reason that you resigned as a clerk in October 1988?A. It was that and the attitude of some of the barristers on my floor which had made my life, in my opinion, a most unpleasant situation." He went on to say that he had a reference point, the day after the 1989 Australia day holiday, as the day he commenced at Lachlan Macquarie Chambers and then said at 17T:-"I am just not sure of the precise dates prior to then." The Statement of Facts signed by Detective Sgt. Oates which was Exhibit D contained the following paragraph:"In December 1988 prior to these offences being detected, Mr Caiger resigned from his position as clerk, his resignation taking effect on 27 January, 1989." Mr Caiger presented as a sincere and truthful witness. He made frank admissions of his wrongful conduct and impressed the Tribunal as an intrinsically honest person who has gone astray and deeply and genuinely regrets his criminal acts. The Tribunal accepts that his evidence was given honestly to the best of his ability and that such discrepancies as became evident were not the result of any deception or attempt to mislead. The prospective employment The position which the Applicant wished to fill was originally as office manager with the firm of Paul A. Curtis & Co solicitors of which Paul Anthony Curtis was the principal partner. At the time of the hearing the position had changed to the extent that Mr Curtis proposed to employ Mr Caiger as consultant, to set up office systems with certain supervisory functions. Essentially whilst the title had changed the job description of the work to be performed was unchanged and was stated on page 3 of the declaration of Mr Curtis of 1 June 1993 (Ex 2) to include the following duties:"(a) implementation of office management systems, (b) control and supervision of support staff." In amplification of the above Mr Curtis deposed as follows in paragraph 4 of his declaration of 17 September 1993 (Ex. 7):"(a) the position to be filled by Mr Caiger is a new position specifically created in order to implement office management systems to enhance the efficiency of the practice. (b) Mr Caiger's duties will be limited to the internal organisation of the office and will include:- (i) preparation of statements of duties for all the staff. (ii) preparation of systems to ensure the proper and efficient utilisation of staff. (iii) preparation of systems to ensure efficient forward planning of call-overs, mentions and other court appearances by professional staff. (iv) preparation and implementation of leave rosters. (v) preparation of personnel files for all staff. (vi) preparation and implementation of internal office systems to ensure efficiency of support staff. (vii) control and supervision of support staff during the implementation period in so far as is necessary to effect any new systems implemented and in conjunction with the current Office Manager. (c) Mr Caiger will not have any contact with clients in relation to their matters and will not perform any work on individual files other than as may be necessary to carry out the duties referred to in (b). (d) Mr Caiger's dealings with the public will be limited to those dealings necessary to carry out the duties referred to in (b)." Mr Curtis further deposed that his practice employs a full time bookkeeper who is directly responsible to him, the practice accounts are fully computerised and fitted with a password known only to the bookkeeper, senior staff and himself and the accounting system is able to produce various reports on the financial position of the practice. These reports would be made available to Mr Caiger upon the approval of Mr Curtis where necessary to enable Mr Caiger to perform the duties referred to in paragraph (b) above. In his oral evidence Mr Curtis stated at 45T:"This position is not a para-legal position, the position that I have offered Mr Caiger. It is not a law clerk position, it is not a managing clerk position. He is employed as a consultant to advise and assist us in setting up appropriate office systems." He further said at 46T:"...his duties would not involve any work on individual files for the conduct of the matter..." He said his contact with files would be only in so far as he may need to extract information as to the state of any particular proceedings to prepare reports on how to use the information from the practice to best to advise how best to organise the systems to make sure that the practice is working more efficiently (51T). Mr Curtis described the practice as largely a litigation practice with close to 2,000 files, the majority of the matters being personal injury cases. There was a small amount of conveyancing, commercial and family law work. This was done by one partner and the other two partners carried on the litigation work. The practice consisted of three partners, three employed solicitors, six secretaries, two clerks carrying on administrative but not legal work, one bookkeeper, one receptionist and one junior (paragraph 7, Exhibit 7). He expected the implementation of the systems to be put in place by Mr Caiger to take approximately six months and in the event that it took longer he wanted to retain the services of Mr Caiger for such period as might be necessary to fully implement them. Mr Curtis stated in evidence (43T) that he was fully aware of Mr Caiger's conviction and his offences. He knew the conduct continued for approximately 12 months and had read the statutory declaration of the Applicant in the proceedings before the Tribunal. He stated that the very first time he met him Mr Caiger told him everything which he had subsequently seen in that statutory declaration. He gave the following description of the view which he formed of Mr Caiger: (44T)"I was quite impressed with Mr Caiger. Frankly I thought that it was quite a humiliating experience for him when he first came to me. There is a significant difference in our ages for a start and he is a man that seemed to have had a fairly impeccable background, well educated, strong military background, and who had made a significant error in the conduct that he was eventually convicted of. I thought he was an intelligent articulate man. I thought he had the skills necessary for the position that I was trying to fill within my practice." Mr Curtis came to know Mr Caiger when he was looking for someone to introduce efficiency systems in his practice. He made his requirement known to a barrister in Wentworth Chambers and through him got in touch with Mr Caiger. He had had at least three meetings with him, the first of which was in about September 1992 and numerous telephone conversations. That was the extent of his contact and he did not regard him as a personal friend. (46T) He made it clear to Mr Caiger when he first saw him he could not regard the job to be done as an indefinite term of employment (49/50T). Mr Curtis gave his evidence in a frank and straight forward manner and emphasised his interest in running his practice efficiently. Character references Four statutory declarations were tendered by the Applicant in support of his character. They were made by Bernard Sharpe and John Edgar Rowe barristers, Eric Lindsay Oates solicitor and formerly a detective senior sergeant in the NSW Police Service and Alan J. Smith a retired director. Mr Rowe had known the Applicant since about January, 1984 when he headed a committee to select a clerk to chambers on the 9th Floor, Windeyer Chambers. He said that Mr Caiger was selected from a short list of outstanding applicants and he was then head of chambers. In the following years he had close contact with Mr Caiger and formed the view that he was a very competent administrator, intelligent, easy to get along with and reliable. During his period as barristers' clerk he wrote the authoritative work on the duties and responsibilities of Barristers Clerks and was commended for his efforts by the Chief Justice. The book was testimony to Mr Caiger's dedication and indicates his quickness and understanding in gathering the information necessary to enable him to write the work. Mr Rowe described the personality clash between Mr Caiger and a small number of barristers on the floor. This made his work extremely difficult and unpleasant. Mr Rowe observed that Mr Caiger continually attempted to overcome the conflict but notwithstanding his efforts it continued. He was aware that Mr Caiger had significant difficulty with outside pressure during 1987 and 1988 and 1989. Nevertheless he appeared not to let that affect his work performance. Regarding the criminal offences Mr Rowe had this to say:"6. Saturday morning, 29 January 1989 Mr Caiger came to my home. He was in a distraught condition and advised me that he had misappropriated some money from the floor funds. At that time the misappropriation had not been detected and he made a full and complete confession of his involvement. He subsequently assisted in identifying the defalcations. He repaid the outstanding monies on 8 February 1989. The incident was reported to police by a floor member with whom Mr Caiger had been having a personality conflict.7. Mr Caiger pleaded guilty to the charges and was dealt with by way of a bond.8. Mr Caiger has expressed remorse to me on a number of occasions in relation to this incident. Before this incident Mr Caiger enjoyed a reputation for honesty and truthfulness and I have absolutely no doubt that he will not commit a breach of trust, let alone steal, again. If I had the opportunity to employ him again I would do so confidently.9. I am aware that he is seeking a job with a firm of solicitors that will involve office management. In my view he is eminently suitable for this position and has proven ability in that direction. He will undoubtedly apply himself to ensure the management and smooth running of the office is effective and successful. I have no hesitation in recommending his employment in such a position." (Ex 5) Mr Sharpe had also known Mr Caiger since he became clerk to the 9th Floor, Windeyer Chambers in early 1984. Mr Sharpe was floor secretary for several years and had a good opportunity to observe Mr Caiger's capabilities. He found him to be a very good administrator. Like Mr Rowe he was aware of the pressures on Mr Caiger during 1987 and 1988, that his then fianc'e was suffering from depression and alcoholism and that at work a small number of barristers were making his life very difficult. He said it appeared that as a release from this pressure he began to gamble and this resulted in him misappropriating some money. Mr Sharpe then deals with the resignation, confession of the misappropriation and the repayment of the moneys by Mr Caiger. He states that most floor members did not wish to take the matter further but a small number decided to report the matter to the police. He gave evidence on behalf of Mr Caiger when he pleaded guilty to the charges before Deputy Chief Magistrate Mrs Karpin in the Local Court at the Downing Centre in January 1990. Since then he had maintained contact with Mr Caiger and regarded him as a good friend. He states (paragraph 8 Ex 3):"I have witnessed the anguish he has suffered as a result of the mistake he made. I am absolutely convinced that he would never do anything like that again. I have no hesitation in recommending him for a management position in a firm of solicitors." Mr Oates in his declaration stated that he investigated the matter resulting in the arrest of Mr Caiger and deposed: (paragraph 5 Ex 4)"Throughout the matter, Mr Caiger was extremely cooperative and provided whatever information I requested of him. In the presentation of his plea of guilty to the Court, Mr Caiger expressed what I consider to be genuine contrition for his action." Mr Smith had known the Applicant for the past 15 years as a fellow member of Killara Bowling Club. He stated that Mr Caiger served the Club as Honorary Secretary and licensee from 1980 to 1984 and he considered him a most competent secretary and administrator. In September, 1991 Mr Smith became chairman of the Club and president of the mens division. Mr Caiger has held various positions in the Club. In January 1993 Mr Smith became aware of the conviction for misappropriation of moneys of Mr Caiger. He said in paragraphs 6 to 8 of his declaration (Ex 6):"6. This information has in no way altered my opinion of him as I believe him to be a person of the highest integrity. He has a key to the Club and to the Club's safe. He regularly handles money on behalf of the Club and in all his undertakings in this regard I have never had cause to doubt his honesty.7. He has worked in an honorary capacity as a de facto secretary manager of the Club for some time and in all his endeavours he displays great enthusiasm and is a first class administrator.8. I understand that he may well be employed by a firm of solicitors in an administrative capacity subject to clearance by the Law Society of New South Wales and in this endeavour he has my fullest support." It is clear from the evidence of those persons who have had an opportunity to observe Mr Caiger at his work and in handling administrative matters that he is a competent administrator and is regarded as a person of integrity and one whom they are willing to trust. They were all aware of his criminal acts and in the case of the two barristers had an intimate knowledge of all aspects of his offences. It is clear that they consider it appropriate that he be given the opportunity to work in a solicitor's office and that they do not consider that any risk to the public attaches to such an appointment. Submissions by counsel The following matters were raised by Mr English, solicitor for the Applicant:1. He is not a barrister or solicitor seeking re-admission or even a clerk within the meaning of the Act but a person who has been convicted of an offence and in order to work in a solicitor's office needs to have the leave of the Tribunal.2. He has been frank and open about his offence and confessed to the crime prior to any investigation that would have led to his discovery.3. Neither the offence nor the misappropriation had been discovered at the time of his confession.4. He repaid the money with interest.5. He was fully co-operative with the police and the Magistrate who handled the decision must have viewed the offence in a certain light to treat the matter with a recognisance bond.6. Although the offence was committed over a period of time it was a period during which the Applicant was under stress in his personal life. He was under pressures at work which led him to do something not indicative of his normal character at the age of 50.7. Prior to that he had an unblemished record and quite a distinguished career.8. He is an inherently honest person. His character is supported by a number of statutory declarations particularly those of Mr Sharpe and Mr Rowe. These gentlemen are barristers who would not say the things they have said lightly.9. Mr Oates the investigating officer deposed that Mr Caiger was co-operative at all times and showed contrition.10. Section 121 applies to a wide range of persons with differing responsibilities. The standard which the Tribunal must apply differs from that which would apply to a solicitor or barrister seeking readmission. It is necessary to look at the duties the Applicant is to perform.11. In the proposed position Mr Caiger will have no opportunity of handling clients' money, will not be signatory to any cheque account and will not have dealings with clients. Neither clients of the firm nor the public would be exposed to unnecessary risks.12. There are no jobs available for a 55 year old man with a criminal conviction and there is now an opportunity of work which he wishes to take up.13. In the exercise of its discretion the Tribunal should accept that Mr Caiger is basically a man of good character, that the offences he committed were out of character and there would be no danger to the public or to clients of the firm. The submissions of Mr Wales, Counsel for the Society may be summarised as follows:1. The offences were of a most serious and calculated kind. They extended over approximately a year and Mr Caiger deliberately forged cheques when he was holding a position of trust and took for himself the proceeds of the cheques.2. Not only did he forge the cheques but he falsified the cheque butts and this is a calculated, careful and thought out plan of deception.3. Although it is said by Mr Caiger that it was the weight of guilt that led him to confess to what he had done he must have realised that the game was about to be up. It was manifest that at the time of the annual audit he would be caught out. There would be a shortfall of $22,000.00 which could not be explained. This should be accepted as a powerful motivating force for his confession.4. In the 12 months before the time came when his finding out was imminent he hadn't felt the force of guilt sufficient to confess or repay the money.5. One cannot resist the feeling that the whole story has not been put before the Tribunal, there has been no evidence from any doctor or psychiatrist who treated the Applicant and he refers to having been under psychiatric stress. The offences are fairly recent, committed five years ago and in circumstances unexplained by any expert evidence that the psychiatric storm has been weathered.6. The inherent good character of the Applicant has the fundamental flaw that he engaged in a protracted deception upon his employer.7. The authorities do not offer much assistance in regard to the standards which may be expected from a clerk as opposed to a solicitor but the proposition should be rejected that some significantly different standard is required of a clerk than of a solicitor. In part this may depend on the precise nature of the duties which the clerk seeks to fulfil. Here he seeks employment in a responsible position in a solicitors firm.8. There is the question of protecting the public interest and of public confidence and it is simply inappropriate for persons employed in solicitors' firms to have what is in effect a serious criminal offence against their name, just as it is quite inappropriate for persons to be readmitted as solicitors when they have in the past been guilty of serious trust account breaches (55T).9. Although Mr Caiger is not a solicitor in a sense the test cannot be fundamentally different and what he did was entirely identical in substance with what might have happened if he had been a clerk employed by a solicitor and forged trust account cheques. The matter cannot be resolved merely by the Tribunal imposing conditions.10. There is always the risk of some kind of re-offending.11. The application should be rejected with costs. The costs should be paid by the Applicant because the true basis of the application is that he seeks an indulgence. The same principle applies as when for example one seeks relief against forfeiture. Counsel for the Society also referred to the following authorities:Re Clayton 1962 SR 132, Ex parte Boyland 80WN 943 and the unreported decisions of the Court of Appeal The Law Society of NSW v Bannister delivered 27 August 1993 and In the matter of the Legal Practitioners Act 1898-1936 and In the matter of Clem Alexander Parbury delivered May 1989. Determination and orders This is the first application of its kind before this Tribunal. Mr Caiger was convicted of the offences some five years ago and the gravamen of the Society's opposition is the protection of the public interest. Four cases were cited by the Society in argument. Two of them involved applications to employ clerks and the two concerned solicitors found guilty of professional misconduct. It is conceded by the Society that the Tribunal has a discretion, and with this in mind, the Tribunal has given careful consideration to all the evidence, in particular that of Mr Caiger himself, and the relevance of the decisions referred to below. In re Clayton (1961) SR 132 an application was made pursuant to Clause 19 of the Solicitors' Practices Rules. Rule 19 stated "no solicitor or conveyancer shall, without leave of the Court after having had notice of any such conviction hereinafter referred to, employ or continue to employ in any capacity whatsoever in or about his business as solicitor or conveyancer any person who has been convicted of any indictable offence." As stated by the Court, the restriction was very broad and it involved an enquiry into the fitness of the person who has been convicted of such offence. Rule 19 had a similar effect to Section 121 of the Act when it comes to the consideration of such persons. This Tribunal has a responsibility to thoroughly investigate an application such as this and has therefore proceeded on the basis of the principles expressed in that case by Herron J at 134 as follows:"Rule 19 of the Special Rules relating to solicitors was passed in order to safeguard both the legal profession and the public...The whole picture of the ethical fitness of Mr Cowley-Cooper generally has to be considered in the light of all the evidence. The Court is interposed by the rule between the solicitor employer and the proposed employee in order to allay the fears that must arise in the minds of the public and the profession alike of the destruction of public confidence in the law and the lowering of its high standard usually associated with solicitors' offices." His Honour then continued:"There is another matter for consideration, that the views of the Law Society must be given due and proper weight." In the Clayton case the clerk who had been acting as a sort of managing clerk in the solicitor's office had been convicted on two counts of fraudulent misappropriation in 1939 and of various other offences including four under the Legal Practitioners Act 1898-1960 between 1941 and 1956. The clerk was broadly in a position of some not inconsiderable responsibility and exercised considerable freedom in the solicitor's affairs. Leave was refused as the Court was not satisfied that the personal interests of the clerk were sufficient to outweigh the general public interest, the strong opposition of the Law Society, and the confirmation of such opposition by its counsel at the hearing. No order was made regarding costs. In the later case of Ex parte Boyland re Rule 19 of the Solicitors' Practices Rules 80WN 943 the above words of Herron J were cited in connection with the power conferred by Rule 19 on the Court and the following was said in the joint judgment of Sugerman, Else-Mitchell and Wallace JJ at 944:"To these observations it should be added that more particularly is the power to be exercised sparingly and with the utmost circumspection where the proposed clerk is not a person who has hitherto had any connection with the practice of the law but is, as in the present case, one who is virtually a new-comer thereto. In the first case there may enter into consideration a certain element of mercy towards a man who, having devoted a lifetime to the work of a solicitor's office, may at a mature age find it very difficult if not impossible to find employment elsewhere: cf. per Street CJ in re Macaulay. This consideration loses most if not all of its cogency where, as here, the proposed clerk is a new-comer to the practice of the law." In that case the proposed clerk was aged 46 and was employed for many years as an accountant. In 1941 he was convicted summarily and sentenced to four months' imprisonment in respect of an offence against the National Security Regulations. In September 1962 he pleaded guilty to two offences under the Bankruptcy Act 1924-1960 which were also dealt with summarily and the clerk was released on a bond conditional upon his being of good behaviour for a period of two years and making certain payments to the official receiver. The offences were described as being serious and as having caused trouble to suppliers of goods and creditors who found out in the end that they had been deceived and cheated. The clerk was described by the learned federal Judge in Bankruptcy as not a dishonest person but one who got into trouble because he undertook tasks which he was far from capable of carrying out. The Law Society of New South Wales having considered the material placed before the Court, did not desire to make any submissions to it. Leave was granted that the clerk be employed in a subordinate capacity only under the supervision and direction of a solicitor and not in any of the work of a managing clerk. In particular he was not to be given charge of any litigious or other matter, or to be permitted to handle trust moneys. No reference to costs appears in the report. In the decision of the Court of Appeal in Law Society of New South Wales v Bannister CA 40714/90 the Court set out the proper approach to be taken when a solicitor has been convicted for a serious offence. The jurisdiction of the Tribunal and of the Court invoked by complaint against a solicitor is not to punish the solicitor but to protect the public. Reference was made to NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-4 and Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-2 where it was said at p 10:"The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved." In Bannister's case reference was also made to Ziems v The Prothonotary (1957) 97CLR 279 at 286, Ex parte Brounsall (1778) 2 cowp 829 98ER 1385 and Incorporated Law Institute of New South Wales v Meagher (1909) 9CLR 655 at 680. At page 11 Sheller JA said in relation to these:"Such cases illustrate that the supervisory jurisdiction of the Court and of the statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the Charter of Justice that persons admitted to practise as solicitors be fit and proper persons or, in the language of Section 16 of the Legal Profession Act 1987, of good fame and character is maintained. It follows that if a solicitor is shown not to be a fit and proper person he or she should be removed from the roll. The order for removal is not punitive but protective. Accordingly it is no answer for the solicitor to say that he or she has already been punished for the conduct which shows unfitness." On page 12 of the same judgment his Honour said:"The exercise of the power to remove from the roll, suspend or fine a solicitor is directed to protecting the public by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise and that high standards are maintained. The maintenance of such standards involves deterring the offender from repeating the offence and deterring others who might be tempted to offend..."When the jurisdiction of the Tribunal is invoked under Part 10 Division 7 of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration is to protect the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. But the Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner." The decision of the Court of Appeal in the matter of Clem Alexander Parbury No. 452 of 1988 has been taken into account by the Tribunal in relation to the relevance of personal tragedy. Kirby P stated at page 4:"No amount of personal stress or sad misfortune can excuse such conduct on the part of a solicitor...The purpose of this jurisdiction is not, as such, to burden him further with another of life's punishments but to protect the community from practitioners who have shown themselves unfit to enjoy the high privilege of legal practice. The public is entitled to deal with legal practitioners in the knowledge that they are honest and will not indulge in conduct that is deceitful and dishonourable. This is a very high standard. But it is the one which the law requires and which the Court enforces."Personal misfortune is not an excuse for misconduct by a legal practitioner." His Honour then makes reference to the statements of Meagher JA in The Prothonotary of the Supreme Court of New South Wales v Jai Ram, Court of Appeal unreported 11 May 1989. That case involved a student at law who was charged with cheating in an examination. The student was the recipient of an enormous amount of misfortune involving both himself and immediate members of his family. It was very clearly stated that such misfortune was not an excuse in that the high standards of integrity must be maintained. However, as observed by the President, the Court, exercising its original jurisdiction, ordered that the student not apply to either of the Admission Boards for re-admission until the expiration of three years. The common themes throughout all of these cases are the principles of:1. the protective and not punitive function of the Court and the Tribunal,2. the deterrent aspect of such function,3. the maintenance in the interest of the public and the profession of the high standards of honesty of solicitors and4. the public interest in maintaining public confidence in the law and the profession. The Tribunal supports and seeks to apply these principles. Anything which places or is indeed likely to place any member of the public in a situation of risk must be avoided. The need to protect the public falls squarely on the shoulders of all legal practitioners and through them this includes their employees. This is a heavy and onerous responsibility cast upon each practitioner and any proposed employer supporting an application of this nature is charged with a responsibility to ensure actively that if such an application is granted the public is put to no risk whatsoever. This particular limb of consideration is consistent with the duties of the Tribunal in exercising its discretion under the Section. The Tribunal has to make a calculated assessment as to the probability of such risk occurring or not occurring. Indeed, the Tribunal is of the view that it has to be satisfied to a degree beyond the test of satisfaction on the balance of probabilities and into being comfortably satisfied pursuant to the principles enunciated in Briginshaw v Briginshaw 60 CLR 336. The Tribunal's view is that the burden of proving comfortable satisfaction lies with the Applicant and the prospective employer. The Section gives the Tribunal discretion and it is not necessarily bound by the strict doctrine of precedent concerning applications disclosing similar facts. Each application must still be determined on its own merits (or lack thereof) to enable proper exercise of this discretion. The Tribunal has carefully considered the evidence and the authorities and bases its conclusion on the following findings:1. The position which the Applicant is to hold in the office of Paul Anthony Curtis will not involve any work of a legal or paralegal nature.2. He will not have any contact with clients in relation to their matters.3. The practice accounts of the firm are fully computerised and fitted with a password known only to certain persons who do not include the Applicant and any reports on the financial position of the practice would only be made available to the Applicant upon approval of Mr Curtis.4. Responsibility for overseeing the work of the Applicant rests with Mr Curtis. The manner in which he gave evidence about his practice and the proposed employment of Mr Caiger showed Mr Curtis to be a solicitor well aware of and able to carry out this responsibility.5. The evidence of Mr Caiger, his demeanour in the witness box and the evidence of Messrs Rowe and Sharpe support the view that he will not repeat his criminal conduct in the future. In making this last mentioned finding the Tribunal has taken account of the following: (a) The acts of misappropriation, forgery and falsification were numerous and extended over a period of approximately 13 months. They constitute serious offences involving dishonesty. (b) The Applicant's voluntary confession before his criminal activities or any shortfall were detected together with the prompt repayment by him of the moneys taken and the payment of a further sum to cover interest before the matter became known to the police is a mitigating factor. (c) The Tribunal does not accept the submission of Mr Wales that Mr Caiger confessed because he must have realised that the game was about to be up. Mr Caiger was cross-examined vigorously on this and maintained throughout his evidence that he knew that what he had done was wrong, he wanted to unburden himself of that guilt and that was the reason for his confession. The Tribunal accepts that evidence. (d) Further Mr Wales suggested that the absence of psychiatric evidence should somehow be equated with some relevant part of the story being missing. Again the Tribunal does not accept this submission. There are a number of possible explanations for the absence of psychiatric evidence including considerations of cost and it is idle to speculate why there was no such evidence or what would have been the outcome if it had been presented. (e) There was evidence by Mr Rowe that Mr Caiger assisted in identifying the defalcations and evidence by Mr Oates of his cooperation with the police. His contrition was expressed to them and before the Tribunal. (f) Apart from the acts of misappropriation which led to the conviction Mr Caiger has an unblemished record. In the result the Tribunal is comfortably satisfied that the employment of Mr Caiger will not materially increase the risk to the public nor undermine public confidence any more or less than any other employee of a solicitor in a practice such as the one conducted by Paul A. Curtis & Co. In accordance with the approach taken by the Court of Appeal in Ex Parte Boyland the Tribunal is prepared to grant the application subject to the terms appearing in its Order. On the question of costs the Tribunal has considered the submissions made by counsel for the Society. The Society has a duty to protect the public interest and the course adopted by the Society in opposing the application was reasonable in the circumstances. However as the Tribunal has on the evidence before it come to the conclusion that the circumstances of this case are such that leave should be granted, it proposes to make no order as to costs. The Tribunal therefore orders that:1. Leave pursuant to Section 121 of the Act be and is hereby given to Michael John Charles Caiger to be employed and paid in connection with the practice of Paul Anthony Curtis as a consultant for a period of six months from commencement of employment or for such longer period as may be necessary to fully implement the office management systems required by Paul Anthony Curtis subject to the conditions that during his term of employment Michael John Charles Caiger shall: (i) not be employed in work of any legal or para-legal nature (ii) not have any contact with clients in relation to their matters and (iii) be subject to the general supervision of Paul Anthony Curtis or of another partner of the firm Paul A Curtis & Co. 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.