Council of the Law Society of NSW v Brooks [2012] NSWADT 131

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Brooks [2012] NSWADT 131 Hearing dates: 17 October 2011 Decision date: 04 July 2012 Jurisdiction: Legal Services Division Before: M Barnes, Judicial Member J Currie, Judicial Member E Hayes, Non-Judicial Member Decision: The Tribunal accordingly orders: (a) The name of David George Brooks be removed from the Roll of Local Lawyers. (b) David George Brooks pays the costs of the Society of and incidental to these proceedings. Legislation Cited: Legal Profession Act 2004 Cases Cited: Prothonotory of the Supreme Court of NSW v Nikolaides [2010] NSW CA 73 Law Society of NSW v McKenzie [2003] NSW ADT 92 Law Society of NSW v Hooper [2005] NSW ADT 174 Prothonotory of the Supreme Court of NSW v Alcom [2000] NSW CA 288 Hill vJames [2004] NSW SC 55 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) David George Brooks (Respondent) Representation: Counsel M J Beaumont and T. Maltz (Applicant) Law Society of NSW (Applicant) No appearance (Respondent) File Number(s): 102035

REASONS FOR DECISION 1The Council of the Law Society of New South Wales (the Society) as Applicant sought orders on the basis the Respondent David George Brooks (the solicitor), was guilty of professional misconduct. 2These proceedings involve an application for disciplinary action pursuant to Section 551 of the 2004 Act. As whilst the proceedings were commenced after 1 October 2005, the complaint predated the commencement of the 2004 Act. 3The Society sought orders that (a) The name of David George Brooks be removed from the Roll of Local Lawyers; (b) David George Brooks pay the costs of the Society of and incidental to these proceedings; (c) Such further orders as the Tribunal deems fit. 4There was no appearance by the solicitor at the final hearing on 17 October 2011. Nor was any Reply filed on behalf of the solicitor or affidavit materials filed and served. 5The Tribunal when listing the matter for hearing was made aware of issues regarding service and gave specific orders regarding effecting of service and is satisfied those orders had been complied with by the Society. 6The Tribunal is satisfied that appropriate efforts have been made to serve the Respondent including submitting materials to him by post to his last known residential and business addresses. 7The Tribunal accepts that the solicitor was aware of the proceedings and is satisfied whist he was not personally served with a copy of the Application that it remained entirely appropriate for the matter to proceed to hearing and be concluded. 8The Tribunal accepts the comprehensive affidavits tendered in the proceedings dealing with service upon the solicitor and complying with the Tribunal's directions referrable to service. Accordingly the matter proceeded to hearing on 17 October 2011. 9In summary the Society contended the solicitor was guilty of professional misconduct in the context of working for a client in relation to a sale contract under which his client was a vendor and the solicitor engaged in conduct which was aimed at deceiving the proposed buyer about the true price that was to be paid by the vendor for certain assets under other contracts. 10More specifically the Particulars of the Grounds were: (a) Mr. Brooks, in the context of a continuing series of communications with Mr. Terry Hill's legal representative, and acting as a solicitor, knowingly concealed from Mr. Terry Hill and his legal representative (a fellow legal practitioner) the true payment price in a contract between Mr. David James (and companies associated with Mr. James) and the liquidators of the Hill Wine Group of Companies. (b) Mr. Brooks, acting as a solicitor, intentionally misled and deceived Mr. Terry Hill and his legal representative (a fellow legal practitioner) by altering the payment price and other elements of various draft contracts and other documents (the documents identified in Schedule 1) and forwarding them to Mr. Hill's legal representatives, fraudulently representing them to be the genuine draft contracts or other documents sent to Mr. Brooks by the solicitors for the liquidators of the Hill Wine Group of Companies, or sent by Mr. Brooks to those solicitors. Those alterations are set out at paragraphs 39-60 in the submissions dated 21 August 2006 filed for the Society in proceedings 13048 of 2005. (c) Mr. Brooks, acting as a solicitor, knowingly and fraudulently made false representations to Mr. Terry Hill and his legal representative (a fellow legal practitioner) with the intention that Mr. Terry Hill would rely upon those representations as to the payment price in, and other elements of, the contracts, between Mr. David James and companies associated with Mr. James) and the liquidators of the Hill Wine Group of Companies. These representations were made in the documents identified in Schedules 1 and 2 below, and are set out at paragraphs 61084 in the submissions dated 21 August 2006 filed for the Society in proceedings 13048 of 2005. 11There were schedules to the Particulars which related to the alteration of documents and separately to the misleading representations.