New South Wales Court of Appeal CITATION: PROTHONOTARY OF THE SUPREME COURT OF NSW v ASSI [2006] NSWCA 29 HEARING DATE(S): 23 February 2006 JUDGMENT DATE: 28 February 2006 JUDGMENT OF: Mason P; Santow JA; Tobias JA DECISION: Declarations of professional misconduct, absence of good fame and character and unfitness. Order that the name of the opponent be removed from the local roll. CATCHWORDS: LEGAL PRACTITIONERS – Removal from Roll – Professional misconduct – Unfitness, fame and character – Grounds for order – Obtaining money by deception – Misappropriation of moneys – Where orders consented to – declarations as to unfitness and professional misconduct made (ND) LEGISLATION CITED: Crimes Act 1900 PARTIES: THE PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES Joseph ASSI FILE NUMBER(S): CA 40447/05 Claimant: R Wilson COUNSEL: Law Society: P R Boyd Opponent: No appearance SOLICITORS: Claimant: Crown Solicitor Opponent: None LOWER COURT DATE OF DECISION: 23/02/2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40447/05 MASON P SANTOW JA TOBIAS JA Tuesday 28 February 2006 PROTHONOTARY OF SUPREME COURT OF NEW SOUTH WALES v Joseph ASSI JUDGMENT 1 THE COURT: The Prothonotary seeks declarations that the opponent, Joseph Assi, a legal practitioner currently on the local roll of lawyers, is: guilty of professional misconduct; not a person of good fame and character; not a fit and proper person to remain on the local roll; and an order that the name of the opponent be removed from the local roll. 2 The opponent filed an affidavit dated 4 July 2005 consenting to all of the orders and declarations sought in the summons filed 1 June 2005. 3 The claimant's solicitor indicated that in light of the opponent's stance there would be no order sought as to costs. 4 On 26 November 2005, the opponent filed another affidavit confirming consent to a Statement of Agreed Facts and to the matter proceeding in his absence. 5 The opponent was admitted to practice on 14 December 1994 and practised until 21 April 1999. On 22 April 1999, his practising certificate was cancelled although his name remained on what was then known as the Roll of Legal Practitioners. 6 In October 1999, the opponent was charged with two charges of fraudulent misappropriation of moneys received, contrary to s178A Crimes Act 1900, three charges of obtaining money by deception, contrary to s178BA of the Act, and one charge of obtaining money by false and misleading statements, contrary to s178BB of the Act. The offences occurred at various dates in 1998 and 1999. Some were directly in connection with his practice as a solicitor. 7 On 15 October 2001, the opponent adhered to an earlier plea of guilty and was convicted and sentenced to imprisonment for an effective total sentence of 2 years, with a non-parole period of 18 months. 8 On 6 December 1999 Simpson J made declarations that between 23 April – 23 September 1999, the opponent held himself out and practised as a legal practitioner in New South Wales whilst not holding a current practising certificate. By further orders the opponent was restrained from holding himself out as a legal practitioner and from practising without a current practising certificate. 9 On 17 March 2003 Barr J made declarations that the opponent held himself out and practised as a solicitor and barrister in New South Wales during the period 7 August – 25 November 2002 whilst not holding a practising certificate. Barr J also ordered that the opponent be restrained from practising. 10 The opponent contravened the orders made by Simpson J. Consequently, proceedings for contempt of court were initiated. On 22 November 2004 Brownie AJ found the opponent guilty of eight charges of contempt of court. His Honour sentenced the opponent to concurrent periods of twelve months imprisonment commencing 17 November 2009 and expiring 16 November 2010, with non-parole period of 3 months commencing 17 November 2009 and expiring 16 February 2010. 11 On 19 October 2004 an indictment was presented in the Sydney District Court containing two counts of fraudulent misappropriation of moneys received (contrary to s178A Crimes Act) and one count of obtaining money by deception (contrary to s178BA of the Act). The offences occurred at various dates in 2001 and 2002 and, as well as being dishonest, involved conduct in which the opponent held himself out as a solicitor in practice. The opponent pleaded guilty to all counts in the indictment. 12 On 17 February 2005, the opponent was convicted and sentenced by Latham DCJ to a total effective sentence of 7 years 6 months, with non-parole period 4 years, 9 months. In imposing the sentence, Latham DCJ had regard to a Form 1 containing further charges under ss178A and 178B. 13 The Opponent has sworn an Affidavit dated 4 July 2005. In it he states As a consequence of my offences of dishonesty…I do not consider myself a person of good fame and character, and certainly I am not a fit and proper person to remain on the Roll of Legal Practitioners. All of my offences are sourced solely from one common cause, namely, my addiction to gambling, I verily believe…I also take the opportunity to sincerely and wholeheartedly apologise to this honourable court and the legal profession as a whole for my disgraceful behaviour. I am utterly ashamed of myself. 14 The Court makes the following declarations and orders: 1. Declaration that the opponent is guilty of professional misconduct in the matters referred to in the reasons of the Court. 2. Declaration that the opponent is not a person of good fame and character. 3. Declaration that the opponent is not a fit and proper person to remain on the local roll of lawyers maintained by the Supreme Court under the Legal Profession Act 2004. 4. Order that the name of the opponent be removed from the said roll. ********** 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.