Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Maloney [2012] NSWADT 259 Hearing dates: 24 August 2012 Decision date: 24 August 2012 Jurisdiction: Legal Services Division Before: Hon G Mullane, Judicial Member D Fairlie, Judicial Member S Hayes,- Non-Judicial Member Decision: 1 The name of the Respondent Shane Michael Maloney is to be removed from the Roll of Local Lawyers. 2 The Respondent must pay the costs of the Applicant as agreed, or assessed. Catchwords: Solicitor - Disciplinary Proceedings - Breach Of Provisions Regulating Trust Accounts - Appropriation Legislation Cited: Legal Profession Act 2004 Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Shane Michael Maloney (Respondent) Representation: C Groenewegen (Applicant) No appearance (Respondent) File Number(s): 122014 reasons for decision INTRODUCTION 1These were disciplinary proceedings against the Respondent commenced by the Application filed 28 June 2012. The Applicant seeks that the Respondent's name be removed from the Roll of Local Lawyers and that the Respondent pay the Applicant's costs 2The Application alleges the numerous grounds of professional misconduct in respect of each of the categories listed below: a) Breach of Section 254 of the Legal Profession Act 2004 (money to be deposited in general trust account); b) Breach of Section 255 of the Legal Profession Act 2004 (trust money in general trust account to be held exclusively for the person on whose behalf it is received and disbursed only in accordance with direction given by the person or Court Order or as authorised by law); c) Breach of Section 264 of the Legal Profession Act 2004 (keeping trust records in relation to trust money received); d) Breach of Clause 88 of the Legal Profession Regulations (requirements for transfer of trust money for payment of costs); e) Transferring costs without authority; f) Taking commission without authority; g) Causing a deficiency in the trust account; h) Misleading client; and i) Misappropriation. 3The Respondent did not file any Reply disputing any of the allegations made by the Applicant or answering the Application. The Respondent did not appear at the hearing. A letter ("Exhibit A1") from the Respondent's solicitors, Whitelaw McDonald, was sent to the Registrar of the Tribunal on 27 July 2012 advising that the Respondent: "Does not wish to oppose the Application. He will also not be represented at the Tribunal, nor will he be appearing." 4The Respondent was born on 21 August 1960 and is 52. He was admitted as a Solicitor on 6 July 1984 and he held a Practising Certificate until it was suspended by the Council of the Society on 27 September 2010. 5At all times in the relevant period, the Respondent was a Principal of the following law practices: * Stacks/Nambucca Pty Ltd (he was the Solicitor/Director) from 28 February 2005 until 8 September 2009 whereupon the company name was changed to North Coast Prime Law Pty Ltd; * North Coast Prime Law Pty Ltd ["NCPL"] from 9 September 2009 to 27 September 2010 (he was the Solicitor/Director of NCPL). * The practice throughout had 4 offices - at Nambucca Heads, Coffs Harbour, Urunga and Macksville. 6Mr James Sofiak was appointed a Trust Accounts Investigator of NCPL and prepared a report of 27 September 2007 to the Council. On that day the Council suspended the Respondent's Practising Certificate. 7By order of the Supreme Court on 28 September 2010, John Ernest Mitchell, Chief Trust Account Investigator for the Law Society, was appointed Receiver for NCPL. 8The Respondent has since been declared bankrupt. THE EVIDENCE 9The evidence before the Tribunal at the hearing comprised: (1)The application filed 28 June 2012; (2)The affidavit of Ann-Marie Foord, Manager of the Professional Standards Department of the Law Society of NSW; (3)The affidavit of Hon Ernest Mitchell sworn 27 June 2012. TRUST MONEY - RELEVANT STATUTORY PROVISIONS 10The following provisions are the sections of the Legal Profession Act 2004 relied upon by the Applicant: 254 Certain trust money to be deposited in general trust account (1) Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless: (a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or (b) the money is controlled money, or (c) the money is transit money, or (d) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person. Maximum penalty: 100 penalty units. (2) Subject to section 258A, a law practice that has received money that is the subject of a written direction mentioned in subsection (1) (a) must deal with the money in accordance with the direction: (a) within the period (if any) specified in the direction, or (b) subject to paragraph (a), as soon as practicable after it is received. Maximum penalty: 100 penalty units. (3) The law practice must keep a written direction mentioned in subsection (1) (a) for the period prescribed by the regulations. Maximum penalty: 50 penalty units. (5) A person is an "appropriate person" for the purposes of this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money. 255 Holding, disbursing and accounting for trust money (1) A law practice must: (a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and (b) disburse the trust money only in accordance with a direction given by the person. Maximum penalty: 50 penalty units. (2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law. (3) The law practice must account for the trust money as required by the regulations. Maximum penalty: 50 penalty units. 259 Protection of trust money (1) Money standing to the credit of a trust account maintained by a law practice is not available for the payment of debts of the practice or any of its associates. (2) Money standing to the credit of a trust account maintained by a law practice is not liable to be attached or taken in execution for satisfying a judgment against the practice or any of its associates. (3) This section does not apply to money to which a law practice or associate is entitled. 260 Intermixing money (1) A law practice must not, otherwise than as permitted by subsection (2), mix trust money with other money. Maximum penalty: 100 penalty units. (2) A law practice is permitted to mix trust money with other money to the extent only that is authorised by the Law Society Council and in accordance with any conditions imposed by the Law Society Council in relation to the authorisation. 261 Dealing with trust money: legal costs and unclaimed money (1) A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person: (a) exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the practice, (b) withdraw money for payment to the practice's account for legal costs owing to the practice if the relevant procedures or requirements prescribed by this Act and the regulations are complied with, (c) after deducting any legal costs properly owing to the practice, deal with the balance as unclaimed money under section 266 (Unclaimed money). (2) Subsection (1) applies despite any other provision of this Part but has effect subject to Part 3.2 (Costs disclosure and assessment). 264 Keeping trust records (1) A law practice must keep in permanent form trust records in relation to trust money received by the practice. Maximum penalty: 100 penalty units. (2) The law practice must keep the trust records: (a) in accordance with the regulations, and (b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person, and (c) in a way that enables the trust records to be conveniently and properly investigated or externally examined, and (d) for a period determined in accordance with the regulations. Maximum penalty: 100 penalty units. 11Clause 88 of the Legal Profession Regulation 2005 provides: 88 Withdrawing trust money for legal costs-section 261 (1) (b) of the Act (1) This clause prescribes, for the purposes of section 261 (1) (b) of the Act, the procedure for the withdrawal of trust money held in a general trust account or controlled money account of a law practice for payment of legal costs owing to the practice by the person for whom the trust money was paid into the account. (2) The trust money may be withdrawn in accordance with the procedure set out in either subclause (3) or (4). (3) The law practice may withdraw the trust money: (a) if: (i) the money is withdrawn in accordance with a costs agreement that complies with the legislation under which it is made and that authorises the withdrawal, or (ii) the money is withdrawn in accordance with instructions that have been received by the practice and that authorise the withdrawal, or (iii) the money is owed to the practice by way of reimbursement of money already paid by the practice on behalf of the person, and (b) if, before effecting the withdrawal, the practice gives or sends to the person a request for payment, referring to the proposed withdrawal. (4) The law practice may withdraw the trust money: (a) if the practice has given the person a bill relating to the money, and (b) if: (i) the person has not objected to withdrawal of the money within 7 days after being given the bill, or (ii) the person has objected within 7 days after being given the bill but has not applied for a review of the legal costs under the Act within 60 days after being given the bill, or (iii) the money otherwise becomes legally payable. (5) Instructions mentioned in subclause (3) (a) (ii): (a) if given in writing, must be kept as a permanent record, or (b) if not given in writing, must be confirmed in writing either before, or not later than 5 working days after, the law practice effects the withdrawal and a copy must be kept as a permanent record. (6) For the purposes of subclause (3) (a) (iii), money is taken to have been paid by the law practice on behalf of the person when the relevant account of the practice has been debited. FACTUAL FINDINGS 12Attached to the Affidavit of Ann-Marie Foord and as part of the evidence in the proceedings is a copy of an Affidavit of the Respondent sworn 12 October 2010 in the Supreme Court of NSW in the proceedings by the Law Society seeking appointment of a Trustee of his practice. It also includes a record of interview of the Respondent by Mr Mitchell on 15 December 2010. 13At all material times the Directors of NCPL were Margaret Ellen Hughes ("Hughes") appointed 1 July 2004 and the Respondent, who was appointed 4 January 2005. Hughes was the Secretary. She is not, and has never been, a lawyer. The shareholders were the granddaughter of Hughes, Whitewater Investments Pty Ltd ("Whitewater"), the Respondent and the Respondent's wife. Whitewater was incorporated in January 1968 and was Hughes' family company. 14Hughes worked at all material times the office manager of the law practice and her responsibilities included accounts and wages. She was based at the Nambucca Heads office. Also based at the Nambucca Heads office was Patricia Hughes, Hughes' sister. She was the bookkeeper. Wattle Properties Pty Ltd ("Wattle Properties") is a company incorporated on 25 March 2008. It was another family company of Hughes. 15The relevant bank accounts of the law practice at all material times were: 1) Stacks/Nambucca Pty Ltd General Office Account - business cheque account with NAB, Taree. 2) NCPL General Office Account - CBA Nambucca Heads. 3) Tax Account of Stacks/Nambucca Pty Ltd - NAB, Taree. 4) NCPL General Office Account No. 2 - CBA Nambucca Heads. 5) NCPL Trust Account (previously Stacks Nambucca Pty Ltd Trust account) - NAB, Taree. 16In relation to many transactions the subject of the grounds, the Respondent was party to an elaborate system whereby unauthorised payments were being made by Trust Account cheque. The Respondent and anyone who colluded with him in the office took steps to conceal the true details of the transactions. The procedure where the payee of a cheque was different to the payee's stated in the trust ledger for the clients and steps to conceal that was as follows: (1) The cheque to be used was photocopied. (2) The original cheque then completed with the details of the actual payee and banked. (3) The copy of the cheque was filled out with the usual details, but the name of the payee was the name of a beneficiary of the Estate (where the client was an estate), or some other person who might legitimately receive funds from that client's Trust Account. (4) The completed photocopy of the cheque was then copied twice. (5) The original copy of the cheque which had been completed with a bogus payee was destroyed or discarded. (5) One copy of the falsified cheque was retained in the Trust Account records and one copy was placed with the file. (6) In some cases a bogus letter purporting to forward the falsified cheque to the bogus payee was prepared and a copy placed on the file with the copy of the cheque. A) SALE DOYLE TO DELAHUNTY 17The law practice acted on the sale by Mr Doyle. By letter dated 8 July 2009 the solicitor for the Purchaser sent the law practice a Contract with a cheque for $21,500.00 by way of payment of the deposit, which was to be held in the law practice's Trust Account. The deposit was trust property. The law practice did not create a trust ledger in relation to the sale and did not deposit the funds into the Trust Account. Instead, it deposited those funds into the Tax Account in breach of Sections 254 and 260 of the Act. 18On 17 August 2009, $4,000.00 of the funds deposited to the Tax Account was transferred to the cheque account of Whitewater Investments, and on 20 August a further $7,000.00 was transferred from the Tax Account to the cheque account of Whitewater Investments. B) PENNY PURCHASE FROM REMERRA PTY LTD 19The law practice was retained by the purchaser, Mr Penny, purchasing a property from Remerra Pty Ltd for $62,000.00. Prior to settlement the purchaser gave the Respondent a bank cheque for $55,800.00 for the balance of the settlement moneys. Those funds were trust moneys. The law practice did not create a trust ledger in relation to the sale. No file in respect of this sale could be located by the Trustee amongst the law practice's records. The law practice did not deposit the settlement moneys into the Trust Account. It deposited them into the Tax Account without the client's authority. The Respondent breached Sections 254 and 260 of the Act. The funds were then disbursed for other purposes, including cash, leaving only $2,340.28. 20In order to effect settlement of the matter, the law practice drew from the trust funds of another client, the Chaloner Estate, the cheques for payment of stamp duty on the contract and to purchase bank cheques for settlement of the purchase. This involved misappropriation of funds of the Chaloner Estate. C) LORD MOTOR VEHICLE ACCIDENT 21Prior to 25 March 2008 Ms Lord retained the law practice to act on her behalf in relation to a motor vehicle accident injury claim. When the claim settled, the law practice received on behalf of the client a settlement cheque for $54,051.67, which was trust property. The law practice did not create a trust ledger in relation to the claim and did not deposit the cheque into the Trust Account. The same day that the cheque was received, it was deposited without the client's authority into the Tax Account. The Respondent's conduct in this regard breached Sections 254 and 260 of the Act. 22The law practice had rendered an account for $21,187.00 to the client. After deduction of those costs and disbursements, $36,864.67 would have been payable to the client. 23The law practice on 13 January 2010 drew a Trust Account cheque for $105,000.00 payable to Whitewater Investments and that was drawn and deducted from the trust ledger of Sexton Estate and deposited into the cheque account of Whitewater Investments 24On 19 January 2010 a cheque for $32,864.67 was drawn on the account of Whitewater Investments and used to purchase a bank cheque payable to Ms Lord. D) ESTATE OF THE LATE FRIEDA FLORENCE BURKE 25Ms Burke died on 31 July 2009. Her Executors retained the law practice to obtain Probate of the Will and distribute the Estate equally amongst eight surviving children. Probate was obtained and the assets of the Estate were collected and banked into the Trust Account. Each beneficiary was entitled to receive $41,404.90 on distribution of the Estate. Cheques were drawn on the Trust Account for $28,500.00 each and in the trust ledger were shown to have been payments to each of the Executors by way of partial distribution. But in fact the first cheque was payable to Whitewater Investments and the second cheque was payable to NCPL Macksville. The first cheque was deposited to the account of Whitewater and the second to the tax account. 26The Respondent breached Paragraphs 264(2)(b) and (c) of the Act by failing to maintain trust records in a way that at all times disclosed the true position in relation to trust money received for or on behalf of any person and in a way that enabled the trust records to be conveniently and properly investigated externally or externally examined. 27The payment of the two cheques was misappropriation of trust money and also produced a deficiency of trust money in the Trust Account of the Estate of $28,500.00 owing to one beneficiary and $26,500.00 owing to another. It was also a breach of Section 255(1) of the Act in that the Respondent failed to hold trust money in the Trust Account of the practice exclusively for the person on whose behalf it was received and disbursed from trust money in accordance with the direction given by the person. 28The use of the funds to deposit $26,500.00 into the account of NCPL Macksville to be used for the payment of debts of the law practice comprised a breach of Section 259 of the Act. 29The Respondent signed the Trust Account cheques numbered 3967 and 3968 drawn in favour of Whitewater Investments and NCPL respectively and either colluded in or chose to ignore the falsification of the trust ledger in the Estate of Burke to conceal the transactions. The Respondent intended to sign the cheques and intended to conceal the transactions referred to. 30As the Respondent's intentional acts where inconsistent with the rights of the Estate beneficiaries in the trust moneys, his acts amounted to the wrongful conversion of or dealing with trust moneys. Such conduct is dishonest. 31The Respondent's acts were dishonest when he knew that the unauthorised use of moneys entrusted to him as a solicitor was wrongful. He knew that the entrusted moneys improperly used would need to be replaced and the unauthorised use concealed from clients, honest staff and Trust Account Inspectors. The acts done by the Respondent in the context of his knowledge, belief or intent were thus objectively dishonest by the ordinary standards of reasonable and honest people. The Respondent's conduct in relation to the two cheques drawn on the Estate was engaging in misappropriation at Common Law. 32When the final distribution of the funds in the Estate of Burke occurred on 19 May 2010, because of the misappropriation of $55,100.00 from the Trust Account for the Estate in March 2010 there was then a deficiency of that amount in the funds in the Estate account available for distribution. The Respondent addressed this on 19 May 2010 by drawing a cheque for each of the Executors for $27,498.15 from the Trust Account ledger for the Estate of Blom, and in addition providing the balance of their entitlements from the balance of the funds in the trust ledger for Burke Estate. E) ESTATE OF THE LATE ESME GWEN CHALONER 33The Executors of the Estate retained the law practice to obtain Probate of the Will and distribute the Estate in accordance with Will to the children of the deceased. Probate was obtained. The costs agreement entered into with the law practice provided an estimate of total legal costs of $4,700.00 plus GST. On 10 September 2009 the law practice drew a cheque for $54,868.40 from the Trust Account ledger for the Estate and the funds were paid to Remerra Pty Ltd on settlement of the Penny purchase from Remerra. Neither of the two Executors directed or authorised that payment. 34On the same day a payment of $931.60 was made by cheque drawn on the Trust Account ledger of the Estate payable to the Office of State Revenue for Stamp duty on the Penny purchase. Neither Executor directed or authorised that payment. Neither Executor had any knowledge of, or association with, Remerra Pty Ltd. 35The above circumstances indicate a failure on the part of the Respondent to maintain trust records in a way that at all times disclose the true position in relation to trust moneys received for or on behalf of any person and in a way that enabled the trust records to be conveniently and properly investigated or externally examined in accordance with Paragraphs 264(2)(b) and (c) of the Act. 36The law practice drew the following cheques from the trust account on the dates indicated debited against the trust ledger of the estate each payable to the payee indicated: Date Chq No. Payee Amount 10.7.2009 3424 "Stacks Prime Law" $19,800 8.10.2009 3649 "Stacks Prime Law" $14,000 37The cheques 3424 and 3649 were both deposited to the office account of the law practice and were shown in the trust ledger of the estate as payments of costs and disbursements. Neither Executor directed nor authorised any payment of trust moneys for costs or disbursements. No bill for costs and disbursements had been rendered before the payments. The payments made were in breach of the costs agreement of 2 June 2009 between the parties, and were in breach of Paragraph 261(1)(b) of the Act and Clause 88 of the Regulations. 38In addition the following unauthorised cheques were drawn against the trust funds of the estate: Date Chq No. Payee Amount 8.2.10 3848 Peter Sexton $50,000 28.4.10 4068 Whitewater $22,100 39The payment of the Trust Account cheques to Stacks Prime Law, the Office of State Revenue, Remerra Pty Ltd, Peter Sexton, Whitewater Investments, and NCPL produced, in breach of Subsection 262(1) of the Act, a deficiency of trust money of $270,700.00 owing to the two beneficiaries. The Respondent's conduct in relation to the drawing of those cheques against the Trust Account ledger of the Estate comprised the failure of the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with the direction given by that person. That constituted a breach of Subsection 255(1) of the Act. 40Six cheques drawn against the Trust Account ledger of the Estate in favour of NCPL were deposited into the Tax Account. That comprised moneys standing to the credit of a Trust Account maintained by the law practice and by its payment into the Tax Account made available for the payment of debts of the law practice and that conduct comprised a breach by the Respondent of Section 259 of the Act. 41The Respondent: a) researched the balance of the Estate of Chaloner Trust Ledger; b) authorised and directed the writing of the relevant Trust Account cheques drawn in favour of NCPL and cheque 4068 drawn in favour of Whitewater Investments by law practice staff; c) signed the Trust Account cheques; d) either colluded in or chose to ignore the falsification of the trust ledger to conceal the impugned transactions in the matter of the Estate of Chaloner. 42The Respondent intended to sign the cheques and intended to conceal the transactions referred to. As the Respondent intentional acts were inconsistent with the rights of the Estate beneficiaries in the trust moneys, his acts amounted to the wrongful conversion of or dealing with trust moneys. 43The use of trust moneys for other than the purpose for which it is entrusted, including an unauthorised use for the Trustee's own interest, is dishonest. The Respondent's acts were dishonest when he knew that the unauthorised use of money entrusted to him as a solicitor was wrongful. The Respondent knew that the entrusted moneys improperly used would need to be replaced and their unauthorised use concealed from clients, honest staff and Trust Account Inspectors. 44The acts done by the Respondent in the context of this knowledge, belief or intent were thus objectively dishonest by the ordinary standards of reasonable and honest people. By virtue of the circumstances described, the Respondent has engaged in misappropriation at Common Law in relation to the funds of the Estate of Esme Gwen Chaloner. F) THE ESTATE OF THE LATE JOAN DOREEN BLOM 45In this Estate the Executors retained the law practice to obtain Probate of the Will and to distribute the net Estate in accordance with the terms of the Will. Some assets of the Estate, such as moneys comprising a credit balance, were collected, banked into the Trust Account and credited to the ledger of the Estate. 46Other assets, such as proceeds of the sale of real estate were banked into accounts other than a General Trust Account as follows: a) $15,514.50 of the deposit money from the sale was deposited into NCPL General Office Account No. 2 on 11 May 2010; b) A portion ($189,104.31) of the settlement money from the sale was deposited into the NCLP General Office Account No. 2 on 12 May 2010; and, c) A portion ($27,548.95) of the settlement money was deposited into the Tax Account on 7 May 2010. 47The payments described above comprise breaches by the Respondent of the obligation to deposit trust moneys into a General Trust Account in accordance with Section 254 of the Act and caused a deficiency in the General Trust Account within the meaning of Paragraph 262(1)(a) of the Act. 48Of the $189,104.31 from proceeds of the sale of the real estate the Respondent about the end of May 2010 agreed to and implemented the payment of a sum of at least $176,750.00 to Whitewater. 49Then followed a series of entries in the Trust Account ledger for the Estate purporting to record payments by way of distribution to 12 beneficiaries. The trust ledger for the estate records cheques paid to beneficiaries that total $235,732.60. 50None of the beneficiaries named as payees in the Trust Ledger for the Estate received any payment. The 12 cheques recorded in the trust account ledger for the estate were in fact paid as follows: (a) Two cheques (total $54,996.30) were payable to and paid to beneficiaries of Burke Estate to cover a deficiency in trust funds held for that estate; (b) Seven cheques (total $139,538.60) were payable to NCPL and deposited to the Tax Account of the law practice; and (c) Three cheques (total $55,000) were payable to and paid to beneficiaries of Dunne Estate to cover a deficiency in trust funds held for that estate. 51Accordingly, the Respondent failed to maintain trust records in a way that at all times disclosed the true position in relation to trust money received for or on behalf of any person and in a way that enabled the trust records to be conveniently and properly investigated or externally examined in accordance with Paragraphs 264(2)(b) and (c) of the Act. 52Cheque No. 4101 in the sum of $100,000.00 was drawn payable to Southern Cross Lawyers Sydney Law Practice Account from the ledger of the Estate of Blom. In fact that was payment of a debt of the law practice for legal costs for tax advice. 53The payment of the Trust Account cheques debited to the Estate of Blom were used in breach of Section 262(1) of the act and produced a deficiency of trust money of $335,732.60 owing to the beneficiaries. That deficiency remained unrectified at the date of the hearing. 54The payment of those Trust Account cheques from Blom Estate comprised a failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with the direction given by that person. That was a breach of Subsection 255(1) of the Act. 55The cheque to Southern Cross Lawyers and the other cheques for a total of $235,742.60 were used to pay the ongoing running costs and debts of the law practice. 56The Respondent: a) paid, inconsistent with the terms of the Will, at least $176,750.00 of the sale proceeds of the real estate to Whitewater Investments; b) researched the balance of the Estate of Blom trust ledger; c) authorised and directed the writing of trust account cheques No. 4101 drawn in favour of Southern Cross Lawyers and Trust Account cheques Nos. 4138, 4150, 4151, 4152, 4153, 4242 and 4243 drawn in favour of NCPL by law practice staff; d) signed the Trust Account cheques in paragraph (c); and e) either colluded in, or chose to ignore the falsification of, the trust ledger to conceal the impugned transactions in the matter of the Estate of Blom. 57We find that the Respondent intended to release sale proceeds of the real estate to Whitewater, sign the Trust Account cheques, and conceal the transactions referred to in the paragraph above. 58The Respondent's intentional acts were inconsistent with the rights of the Estate beneficiaries and the trust moneys, and his acts amounted to wrongful conversion of dealing with trust moneys. 59The use of trust moneys for other than the purpose for which it is entrusted, including an authorised use for the trustee's own interests, is dishonest. 60The Respondent's acts were dishonest when he knew that the unauthorised use of trust money entrusted to him as a solicitor was wrongful. The Respondent knew that the entrusted moneys improperly used would need to be replaced and their unauthorised use concealed from clients, honest staff and Trust Account Inspectors. The acts done by the Respondent in the context of his knowledge, belief or intent were thus objectively dishonest by the ordinary standards of reasonable and honest people. 61Accordingly, the Respondent has engaged in misappropriation at common law. G) THE ESTATE OF THE LATE VERONICA ANN TOMLINSON 62The Executors of the Estate were the twochildren of the deceased. They instructed the law practice to obtain Probate of the Will and distribute the net Estate in accordance with the terms of the Will between the beneficiaries. 63The Executors entered into a standard costs agreement with the law practice. Total expenses by way of costs and disbursements were estimated by the law practice to be in the order of $4,800.00 plus GST. Probate was obtained and the assets of the Estate collected and deposited into the Trust Account. 64The trust ledger shows 4 cheques drawn on 1 September 2010 distributing a total of $59,417.00. The trust ledger records that each payment was by "part distribution" of the estate. Two of the cheques were recorded as payable to none of the executors and one to the other. The other payment was recorded in the trust ledger as a sum of $18,500.00 paid to Robson & Oliver Trust Account. Neither Executor had any knowledge of, directed, authorised or received any of those payments. 65In fact, the cheque drawn for Robson & Oliver was a settlement payment in respect of a claim against NCPL for unpaid rents. Of the 3 cheques shown in the trust ledger as payable to the executors (total $30,145), 2 were in fact payable to NCPL. One of those was deposited to the tax account and the other was deposited to the NCPL General Office Account No 2. The other cheque was for $10,772 and was payable to Nambucca Shire Council. It was paid to the Council for fees on a development application by Hughes' husband and Whitewater. 66These circumstances indicate a failure on the part of the Respondent to maintain trust records in a way that at all times disclose the true position in relation to trust money received for or on behalf of any person and that way enable the trust records to be conveniently and properly investigated or examined in accordance with Paragraphs 264(2)(b) and (c) of the Act. 67Neither Director executed or authorised any payment of trust moneys to the law practice or to Nambucca Shire Council. No bill had been rendered by the law practice to the Estate prior to the payment of any of the four payments made on 1 September 2010. 68The payment of all four Trust Account cheques from the trust ledger of the Estate adduced, in breach of Subsection 262(1) of the Act, a deficiency of trust money of $59,417.00 owing to the beneficiaries. 69The payment of the four Trust Account cheques as described above comprised a failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with a direction given by the person. Each payment constituted a breach of Subsection 255(1) of the Act. 70All four Trust Account cheques were used by the Respondent to pay the debts and on-going running costs of the law practice. That comprises a breach by the Respondent of Section 259 of the Act. 71The Respondent: a) researched the balance of the estate of Tomlinson trust ledger; b) authorised and directed the writing of Trust Account cheques Nos. 4436 to 4439inclusive by the law practice staff; c) signed those cheques; and, d) either colluded in or chose to ignore the falsification of the trust ledger to conceal the impugned transactions in the matter of the Estate of Tomlinson. 72The Respondent intended to sign the cheques and intended to conceal the transactions referred to. The Respondent's intentional acts were inconsistent with the rights of the Estate beneficiaries in the trust moneys and his acts amounted to the wrongful conversion of or dealing with trust moneys. 73The use of trust moneys for purposes other than those for which it is entrusted, including an unauthorised use for the trustee's own interest, is dishonest. The Respondent's acts were dishonest when he knew that the unauthorised use of money entrusted to him as a solicitor was wrongful. The Respondent knew that the entrusted money improperly used would need to be replaced and their unauthorised use concealed from clients, honest staff and Trust Account Inspectors. 74The acts done by the Respondent in the context of his knowledge, belief or intent were thus objectively dishonest by the ordinary standards of reasonable and honest people. By virtue of the circumstances described the Respondent has engaged in misappropriation at Common Law. H) THE ESTATE OF THE LATE JAMES WILLIAM SEXTON 75The Executor of the Estate retained the law practice to obtain Probate of the Will and to distribute the Estate between the beneficiaries. The Executor signed a standard costs agreement. Total of expenses by costs and disbursements were estimated by the Respondent to be about $4,700.00 plus GST. Probate of the Will was obtained and the assets of the Estate collected and banked in its Trust Account. 76The trust ledger for the Estate includes the two following entries: 1) On 31 December 2009 by cheque No. 3779 for $2,200.00 shown as a payment costs and disbursements to the law practice. The Executor neither directed nor authorised any payment of trust moneys to North Coast Prime Law for costs and disbursement. No bill was rendered prior to the amount of $2,200.00 on 31 December 2009 being paid from the Trust Account to the law practice. The payment of $2,200.00 on 31 December 2009 from the Trust Account to the law practice was a payment for costs and disbursements in breach of the costs agreement dated 6 July 2009 between the parties and in breach of the requirements of Paragraph 261(1)(b) of the Act and Clause 88 of the Regulations. 2) The other payment recorded in the ledger of the Estate was a payment on 13 January 2010 by cheque No. 3789 in the sum of $105,000.00. It was shown as being paid to the Executor as a distribution from the Estate. The Executor neither directed, authorised nor received any partial distribution of the Estate.In fact, the cheque was actually payable to Whitewater. 77The above facts establish a failure on the part of the Respondent to maintain trust records in a way that at all times disclose the true position in relation to trust money received for or on behalf of any person; and, in a way that enabled the trust records to be conveniently and properly investigated or externally examined in accordance with the requirements of Paragraphs 264(2)(b) and (c) of the Act. 78The Executor neither directed nor authorised any payment of trust moneys to the law practice or to Whitewater, or at all. 79The payments produced in breach of Subsection 262(1) of the Act, a deficiency of trust money of $107,200.00 owing to the beneficiaries. 80Payment of the two Trust Account cheques as described comprise failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with the direction given by the person in breach of Subsection 255(1) of the Act. 81The Trust Account cheque drawn in favour of NCPL was used to pay the debts and on-going running costs of the law practice. This comprised a breach by the Respondent of Section 259 of the Act. 82The deficiency in the trust moneys available to the Executor was rectified in February 2010 to the extent of $105,000.00 by Trust Account cheque of $55,000.00 payable to him but debited to the ledger of the Estate of the Late Halbert William Dunne and a Trust Account cheque for $50,000.00 payable to him but debited to the trust ledger of the Estate of the Estate of the Late Esme Gwen Chaloner. 83The Respondent: 1) Researched the balance of the Estate of Sexton trust ledger; 2) Authorised and directed the writing of the two Trust Account cheques referred to by law practice staff; 3) Signed the Trust Account cheques; and, 4) Either colluded in or chose to ignore the falsification of the trust ledger to conceal the impugned transactions in the matter of the Estate of Sexton. 84The Respondent intended to sign the cheques and intended to conceal the actual nature of the transactions and in the case of the second payment, the payee. As the Respondent's intentional acts were inconsistent with the rights of the Estate beneficiaries in the trust moneys, his acts amounted to the wrongful conversion of or dealing with trust moneys. 85The use of trust moneys for purposes other than those for which it is entrusted, including an unauthorised use for the Trustee's own interest, is dishonest. The Respondent's acts were dishonest when he knew that the unauthorised use of the money entrusted to him as a solicitor was wrongful. The Respondent knew that the entrusted moneys improperly used would need to be replaced and their unauthorised use concealed from clients, honest staff and Trust Account Inspects. 86The acts done by the Respondent in the context of his knowledge belief or intent were thus objectively dishonest by the ordinary standards of reasonable and honest people. By virtue of the circumstances described above, the Respondent has engaged in misappropriation at Common Law in respect of both payments. I) ESTATE OF THE LATE HALBERT WILLIAM DUNNE 87The Executors of the Estate were the 2 sons of the deceased. In July 2009 they retained the law practice to obtain Probate of the Will and distribute the Estate to the beneficiaries. The Executors and their sister were the beneficiaries. Probate was obtained and the Estate was collected and banked into the Trust Account. According to the Trust Account ledger sheet for the Estate a cheque was drawn on 8 February 2010 for $55,000.00 made payable to one of the Executors as a partial distribution. In fact, the cheque was payable to and provided to the beneficiary of the Estate of the late James William Sexton. 88The Executors neither directed, authorised nor received any payment from the Estate. 89The above circumstances establish a failure on the part of the Respondent to maintain trust records in way that at all times disclose the true position in relation to trust money received for or on behalf of any person and in a way that enabled the trust records to be conveniently and properly investigated or externally examined in accordance with Paragraphs 264(2)(b) and (c) of the Act. 90The Executors neither directed nor authorise any payment of trust moneys to the beneficiary of the Sexton Estate or at all. Accordingly, the payment of the cheque produced in breach of Subsection 262(1) of the Act a deficiency of trust money of $55,000.00 owing to the beneficiaries. 91It also comprised a failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with a direction given by the person. That constituted a breach of Subsection 255(1) of the Act. 92A deficiency in trust moneys was rectified on 12 July 2010 by three Trust Account cheques each made payable to the Executor's sister. Those cheques came to a total of $55,000.00. However, they were drawn against the trust ledger for the Estate of the Late Joan Doreen Blom. That amount of $55,000.00 and another $93,824.54 were banked directly into the bank account of the sister on 12 July 2010. 93The Distribution Statement for the Estate issued to the Executors and signed by them on 5 July 2010 is false in that it fails to record: a) the payment to the beneficiary of the Sexton Estate made on 8 February 2010; and b) that the distribution to the sister comprised four separate cheques made payable to her. 94In his letter of 13 July 2010 to the Executors, the Respondent misled them by enclosing the signed Distribution Statement as a true representation of how the Estate was distributed. J) ESTATE OF THE LATE DYLIS DENICE ROBINS 95By her Will the deceased nominated her daughter as her Executor. The Executor retained the law practice in 2008 to obtain Probate of the Will and to distribute the Estate. Probate was obtained and the assets of the Estate collected and banked into the Trust Account. The trust account ledger records that on 31 December 2009 a cheque for $3,300.00 payable to NCPL for costs and disbursements was drawn on the trust moneys of the Estate. The Executor neither directed nor authorised any payment of trust money to NCPL for costs and disbursements. 96No bill was rendered prior to the payments. The actual cheque was payable to NCPL, but was not paid for costs and disbursements and was in fact deposited into the Tax Account of the law practice. 97The Trust Account cheque drawn in favour of NCPL was used to pay the debts and ongoing running costs of the law practice. 98The above facts indicate a failure on the part of the Respondent to maintain trust records in a way that at all times disclose the true position in relation to trust money received for or on behalf of any person; and in a way that enabled the trust records to be conveniently and properly investigated or externally examined in accordance with Subparagraphs 264(2)(b) and (c)of the Act. 99The payment of the Trust Account cheque described produced, in breach of Subsection 262(1) of the Act, a deficiency of trust money of $3,300.00 owing to the beneficiaries. 100The payment of the Trust Account cheque described above comprised a failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with a direction given by the person in breach of Subsection 255(1) of the Act. 101The use of trust moneys standing in the Trust Account for payment of debts by the law practice comprises a breach by the Respondent of Section 259 of the Act. 102The Distribution Statement for the Estate dated 17 March 2010 prepared by the Respondent is false in that it: (a)Fails to record the deduction of $3,300.00 from the Trust Account on 31 December 2009; and, (b)States that the balance of the trust ledger was $9,233.50 when in fact it was $6,214.00. 103In the letter dated 17 March, 2010 to the Executor, the Respondent attempted to mislead the Executor by: (a) Failing to advise her that the amount of $3,300.00 had been withdrawn from the Estate; and, (b) Sending the false Distribution Statement referred to above as a true representation of the costs claimed in the distribution of the Estate. K) ESTATE OF THE LATE ERNEST KEITH BYRNE 104The Executors of the Will of the deceased were his son and daughter. He died in June 2007. The executors instructed the law practice to obtain Probate and then distribute the Estate in accordance with the Will. 105The Executors entered into an NCPL standard costs agreement in October 2007 in which total expenses by way of legal costs and disbursements were estimated by the Respondent to be in the order of $4,800.00 plus GST. 106Probate was obtained and the assets of the Estate were collected and banked into the Trust Account. 107The Trust Account ledger includes an entry on 31 December 2009 for a cheque for $5,500.00 made payable to NCPL for costs and disbursements. No bill had been rendered to the Estate prior to 31 December 2009. The Executors neither directed nor authorised any payment of trust moneys to NCPL for costs and disbursements on or before 31 December 2009. 108The payment of the Trust Account cheque produced, in breach of Subsection 262(1) of the Act, a deficiency of trust money of $5,500.00 owing to the beneficiaries. 109The payment of the Trust Account cheque comprised a failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with a direction given by the person. That established a breach of Subsection 255(1) of the Act. 110A Trust Account cheque was used to pay the debts and ongoing running costs of the law practice. The circumstances whereby money standing to the credit of a Trust Account maintained by the law practice was made available for the payment of the debts of the law practice comprises a breach by the Respondent of Section 259 of the Act. 111The Distribution Statement for the Estate dated 1 July 2010 is false in that it: (a) Fails to record the deduction of $5,500.00 from the Trust Account on 31 December 2009; and (b) States that the balance of the trust ledger was $10,249.98 when in fact it was $5,265.38. 112In his letter dated 1 July 2010 the Respondent attempted to mislead the Executors by : (a) Failing to advise them that the amount of $5,500.00 had been withdrawn from the Estate; and (b) Sending the false Distribution Statement referred to above as a true representation. L) ESTATE OF THE LATE FREDERICK WILLIAM BOWDEN 113The deceased died on 12 March 2009 and his Will nominated his daughter as Executor. The Executor retained the law practice to obtain Probate of the Will and distribute the Estate between the beneficiaries. Probate was granted on 4 December 2009 and the assets of the Estate were collected and banked into the Trust Account. 114There was an entry in the trust ledger for the Estate for cheque No. 3774 on 31 December 2009 for the sum of $2,200.00 payable NCPL for costs and disbursements. No bill for costs and disbursements had been rendered prior to the payment from the Trust Account. The Executor neither directed nor authorised any payment of trust moneys to NCPL on or before 31 December 2009. 115The payment of the Trust Account cheque in breach of Section 262(1) of the Act created a deficiency of trust money of $2,200.00 owing to the beneficiaries. 116The payment of the Trust Account cheque comprised the failure by the respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with the direction given by the person in breach of Subsection 255(1) of the Act. 117The payment of $2,200.00 from the Trust Account to the law practice was a payment for costs and disbursements in breach of paragraphs 261(1)(b) and Clause 88 of the Regulations. 118The Trust Account cheque drawn in favour of NCPL was used to pay the debts and ongoing running costs of the law practice. 119It was a breach by the Respondent of Section 259 of the Act. 120The Trust Account statement regarding the Estate of the Late Frederick William Bowden dated 1 July 2010 is false in that it: (a) Fails to record the deduction of $2,200.00 from the Trust Account on 31 December 2009; and, (b) States that the balance of the trust ledger was $2,864.42, when in fact it was significantly less. 121In his letter dated 6 August 2010 the Respondent attempted to mislead the Executor by: (a) Failing to advise her that the amount of $2,200.00 had been withdrawn from the Estate; and (b) Sending the false statement referred to in the previous paragraph as a true representation of the costs claimed in the distribution of the Estate. M) ESTATE OF THE LATE BETTY PATRICIA MEZINIS 122In her Will the deceased nominated her son and her friend as the Executors of her Estate. The Executors retained the law practice to obtain Probate and distribute the Estate between the beneficiaries. Probate was obtained on 8 October 2009 and the assets were collected and banked to the Trust Account. 123The trust ledger for the Estate includes cheques of 31 December 2009 and 20 July 2010 of $7,700.00 and $440.00 respectively, both payable to NCPL. The particulars of the first of these cheques was that it was payment of costs and disbursements. But in fact the cheque was deposited into the Tax Account. No bill had been rendered prior to the drawing of the cheque. 124The ledger record in relation to the second cheque purported that it was payment for the making of a Will and a Power of Attorney for the Executor who was the deceased's friend. The Executors and each of them neither directed nor authorised any payment of the trust moneys of the estate to NCPL for costs and disbursements or for preparation of a Will and Power of Attorney for the executor or at all. 125The circumstances above indicate a failure on the part of the Respondent to maintain trust records in a way that at all times disclosed the true position in relation to trust money received for or on behalf of any person; and in a way that enabled the trust records to be conveniently and properly investigated or externally examined in accordance with Paragraphs 264(2)(b) and (c) of the Act. 126The payment of the two Trust Account cheques produced in breach of Subsection 262(1) of the Act, a deficiency of trust money of $8,140.00 owing to the beneficiaries. 127The payment of the Trust Account cheques as described constituted a failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with a direction given by the person in breach of Section 255(1) of the Act. 128Payment of $7,700.00 on 31 December 2009 from the Trust Account to the law practice was a payment for costs and disbursements in breach of Paragraph 261(1)(b) of the Act and Clause 88 of the Regulations. Both the cheques were used to pay the debts and ongoing running costs of the law practice. The use of moneys standing to the credit of a Trust Account maintained by the law practice for payment of debts of the law practice comprised a breach by the Respondent of Section 259 of the Act. 129The Draft Distribution Statement prepared by the Respondent and signed by the Executors is false in that it fails to record the reduction of $7,700.00 from the Trust Account on 31 December 2009. 130The Respondent attempted to mislead the Executors by: (a) Failing to advise them that the amount of $8,140.00 had been withdrawn from the Estate; and (b) Sending the false statement referred to as a true representation as the costs claimed in the distribution of the Estate. N) BIANCA MARTINO FAMILY LAW MATTER 131The client had received a cheque for $11,371.52 as payment of a successful claim she made to the Victims' Compensation Tribunal. In order to fund her Family Law proceedings, on 16 December 2009 she authorised the Respondent to place that money into a Trust Account in her name. 132An entry appears in the Trust Account ledger for the client for the payment of $3,300.00 to NCPL on 31 December 2009 in respect of her Family Law matter. The cheque in fact was deposited to the Tax Account of NCPL. The law practice had not rendered any bill to the client on or before 31 December 2009. The client neither directed, nor authorised any payment of trust moneys to NCPL on or before 31 December 2009. 133The above facts establish a failure on the part of the Respondent to maintain trust records in a way that at all times disclosed the true position in relation to trust money received for or on behalf of any person; and in a way that enables the trust records to be conveniently and properly investigated or externally examined in accordance with Paragraph 264(2)(b) and (c) of the Act. 134The payment of the Trust Account cheque as described produced, in breach of Subsection 262(1) of the Act a deficiency of trust money of $3,300.00 owing to the client. 135The payment of the Trust Account cheque as described comprised a failure by the Respondent to hold trust money deposited in the Trust Account of the practice exclusively for the person on whose behalf it was received and to disburse the trust money in accordance with a direction given by the person in breach of Subsection 255(1) of the Act. 136The Trust Account cheque drawn in favour of NCPL was used to pay the debts and ongoing running costs of the law practice. This comprised a breach by the Respondent of Section 259 of the Act. O) MISAPPROPRIATION ON 31 DECEMBER 2009 137On or before 31 December 2009 the Respondent in accordance with the following table: TRUST A/C CHEQUE NO. AMOUNT $ LEDGER ACCOUNT 3774 2,200.00 Bowen Estate 3775 3,300.00 Bianca Martino 3776 5,500.00 Byrne Estate 3777 7,700.00 Mezinis Estate 3778 3,300.00 Robins Estate 3779 2,200.00 Sexton Estate (a) researched the balance of the various trust ledgers; (b) drew and signed the Trust Account cheques; (c)Falsified, or colluded the falsification of, trust ledgers to conceal the impugned transactions. 138The Respondent intended to draw and sign the cheques and intended to conceal the transactions referred to above. 139As the Respondent's intentional acts were inconsistent with the rights of the law practice's clients in the trust moneys, his acts amounted to the wrongful conversion of or dealing with trust moneys. 140The use of trust moneys for purposes other than those for which it is entrusted, including an unauthorised use for the Trustee's own interest, is dishonest. 141The Respondent's acts were dishonest when he knew that the authorised use of the money entrusted to him as a solicitor was wrongful. The Respondent knew that the entrusted improperly used would need to be replaced and their unauthorised use concealed from clients, honest staff and Trust Account Inspectors. 142The acts done by the Respondent in the context of his knowledge, belief or intent was thus objectively dishonest by the ordinary standards of reasonable and honest people. By virtue of the circumstances described above, the Respondent has engaged in misappropriation of those amounts at Common Law. 143The Fidelity Fund has paid $921,000.00 in relation to Trust Account deficiencies of the Respondent. UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT 144Sections 496, 497 and 498 of the Legal Profession Act 2004 provide: 496 Unsatisfactory professional conduct For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 497 Professional misconduct (1) For the purposes of this Act: "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. CONCLUSIONS AS TO CONDUCT 145Taken together the Respondent's conduct in these proceedings constitutes professional misconduct. The allegations proved involve repeated breaches of the provisions of the Legal Profession Act 2004, and acts of dishonesty and fraud. The evidence is that the Respondent is not a fit and proper person to engage in legal practice and his name should therefore be removed from the Local Roll. COSTS 146Subsection 566(1) of the Legal Profession Act 2004 provides: (1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist 147There is no evidence of any exceptional circumstance supporting any other order that the Respondent pay the Applicant's costs. ORDERS 148The Orders of the Tribunal therefore are: 1 The name of the Respondent Shane Michael Maloney be removed from the Roll of Local Lawyers. 2 The Respondent must pay the costs of the Applicant of or incidental to the proceedings as agreed, or in default of agreement as assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** 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. Decision last updated: 10 December 2012