Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288

New South Wales Court of Appeal CITATION : Kekatos v The Council of the Law Society of New South Wales [1999] NSWCA 288 FILE NUMBER(S) : CA 40755/98 HEARING DATE(S) : 11 May 1999 JUDGMENT DATE : 26 August 1999

PARTIES : Appellant - George Kekatos Respondent - The Council of the Law Society of New South Wales JUDGMENT OF : Handley JA at 1; Powell JA at 2; Giles JA at 7

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 10305/97 LOWER COURT JUDICIAL OFFICER : McInerney J

COUNSEL : Appellant - G A Palmer QC & A C Casselden Respondent - L P Robberds QC & I M Khan SOLICITORS : Appellant - Smits Leslie, Gordon Respondent - Garry J Still, Law Society of NSW CATCHWORDS : SOLICITORS - not holding practising certificate - holding out to be solicitor and acting as solicitor - contraventions of Pt 3A Legal Profession Act 1987 - whether because of interventions in hearing and findings and reasons trial was unfair - whether Jones v Dunkel inference open - whether contraventions established. DECISION : (1) Time for filing a summons for leave to appeal be extended up to and including 2 October 1998; (2) Grant leave to appeal; (3) Dismiss the appeal with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40755/98 CLD 10305/97 HANDLEY JA POWELL JA GILES JA Thursday 26 August 1999

KEKATOS v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES JUDGMENT

1 HANDLEY JA: I agree with Giles JA subject to the minor qualifications contained in the judgment of Powell JA. 2 POWELL JA: I have read in draft the Judgment which has been prepared by Giles JA in this matter. 3 Although I agree with the Orders which Giles JA proposes and although I otherwise agree with his Honour's reasons for proposing those Orders, I am unable to share his Honour's views as to "the Tambouz debt transaction" (particulars 16, 17, 18). 4 Although what McInerney J had written in relation to those particulars was very brief, enough appears to indicate that he had accepted in full the substance of Mr. Gaitanos' evidence and had rejected Mr. Kekatos' denial of Mr. Gaitanos' evidence. The latter's evidence, as Giles JA has noted, included the fact that Mr. Kekatos had not demurred to the description that he was Mr. Tambouz' "lawyer"; the further fact that, on various occasions when Mr. Gaitanos visited Mr. Kekatos, the latter was to be found, not in the offices of George Kekatos Pty. Limited or of "Kekatos Accountants", but in the offices of "T. Bouzanis - Solicitors"; and the further fact that Mr. Kekatos referred to Mr. Tambouz' cheque having been deposited in his (Mr. Kekatos') trust account. To these facts might be added the further fact that the facsimile letter forwarded to Mr. Kekatos by Mr. Gaitanos' wife - seemingly after the first telephone conversation between Mr. Gaitanos and Mr. Kekatos - was forwarded, not to the facsimile number appearing on the letterhead of Mr. Kekatos' company, but to what was formerly the facsimile number of "Kekatos & Associates" and was then that used by "T. Bouzanis - Solicitors". 5 However, as, in the event, my differing from Giles JA in respect of these matters does not affect the ultimate result of the appeal, I do not propose to pursue this question further. 6 As I have earlier noted, I agree with the Orders proposed by Giles JA. 7 GILES JA: Mr George Kekatos was admitted as a solicitor on 8 July 1983. He spent some years with a city firm in Sydney, and in 1986 or 1987 set up his own practice at Parramatta under the name Kekatos & Associates. 8 On 21 October 1993 the Law Society cancelled Mr Kekatos' practising certificate. The cancellation was stayed on conditions, but his application for renewal of the practising certificate was refused, and as from 1 July 1994 he did not hold a practising certificate. On 22 December 1994 the Legal Services Tribunal ordered that Mr Kekatos' name be removed from the Roll of Solicitors. Mr Kekatos then set up what he described as a consulting business under the name of George Kekatos & Co. 9 On 4 February 1997 the Law Society brought proceedings against Mr Kekatos, alleging that by reason of his conduct after his removal from the Roll he had acted in contravention of the provisions of Pt 3A of the Legal Profession Act 1987 ("the Act"). Particulars of the conduct and the provisions were given, in general terms that in relation to a number of transactions or events Mr Kekatos had held himself out to be a solicitor or had acted as a solicitor. The Law Society claimed a declaration that Mr Kekatos was guilty of contravention of the Act by reason of the particularised conduct, an order that Mr Kekatos be restrained from acting or purporting to act or hold himself out in any way whatsoever as a solicitor, and an order that Mr Kekatos be restrained from acting in contravention of any or all of the provisions of Pt 3A of the Act. The particulars were later amended, but the relief claimed remained the same. 10 On 24 February 1997 orders were made by consent in the terms of the restraining orders sought by the Law Society. The proceedings went to a hearing on the making of the declaration. After a hearing over three days in March 1998, on 20 August 1998 McInerney J declared that Mr Kekatos was guilty of contravention of the provisions of Pt 3A of the Act by reason of his conduct. 11 On 22 September 1998 Mr Kekatos filed a notice of appeal purportedly as of right. The appeal was incompetent, as leave to appeal was required (see Supreme Court Act 1970 s 101(2)(r)). When this was recognised, on 2 October 1998 Mr Kekatos filed a summons applying for an extension of time to apply for leave to appeal and for leave to appeal. The grant of leave to appeal was not seriously in question, and the argument on what was in effect an appeal went to the merits of the appeal.