Council of the Law Society of NSW v Fitzsimons [2012] NSWADT 285

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Fitzsimons [2012] NSWADT 285 Decision date: 11 September 2012 Jurisdiction: Legal Services Division Before: Hon G Mullane, Judicial Member S Hale, Judicial Member E Hayes, Non-Judicial Member Decision: 1.The name of Christopher Ronald Fitzsimons is to be removed from the Roll of Local Lawyers. 2.The Respondent Christopher Ronald Fitzsimons must pay the costs of the Law Society of or incidental to the proceedings commenced by each of its Applications filed 16 July 2009 and 17 August 2012. Catchwords: Solicitor - Disciplinary proceedings - Misappropriation - Breach of Statutory provisions regulating to Trust Accounts Legislation Cited: Legal Profession Act 1987 Sections 61 & 62; Legal Profession Act 2004 Sections 254, 257, 260 & 264; Legal Profession Regulation 2005; Crimes Act 1900 NSW Sections 178A & 300 Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Christopher Ronald Fitzsimons (Respondent) Representation: Counsel J S Gleeson, (Applicant) K J Pierce, (Respondent) C Groenewegen,Council of the Law Society of NSW (Applicant) Lyons & Lyons (Respondent) File Number(s): 092017 and 122019

REASONS

INTRODUCTION 1This was a consolidated hearing of two disciplinary proceedings against the Respondent commenced by the Law Society. Proceedings numbered 092017 were commenced by the Application filed on 15 July 2009. At the hearing on 11 September, 2012, the Tribunal granted leave to the Applicant to rely on the Amended Application filed that day. 2The proceedings numbered 122019 were commenced by an Application filed on 17 August 2012. 3In both Applications the Applicant seeks that the name of the Respondent be removed from the Roll of Local Lawyers. The Applicant also seeks costs. 4On 11 September 2012 at the start of the hearing the Respondent was represented by counsel and an instructing solicitor. Counsel raised preliminary applications. One was an argument that because the Respondent had been prosecuted, convicted, sentenced to imprisonment and served his time for conduct comprising some of the grounds in these proceedings, the Law Society was estopped from relying upon those grounds in these disciplinary proceedings. That objection was subsequently withdrawn. 5The second application was for a stay of these proceedings as, it was agued, they are "an abuse of process" because: * there was a finding of the Supreme Court of NSW in prior proceedings by the Prothonotary of NSW against the Respondent that it was not established that the Respondent was not a fit and proper person to engage in legal practice; * * the grounds relied upon by the Prothonotary comprised 8 convictions of the Respondent for misappropriation of trust funds received on behalf of clients and 3 convictions for making false instruments with the intention of using them to have another person accept them as genuine and because of that acceptance, act to that other person's own prejudice; * * the Law Society was aware of those proceedings well before the hearing of those proceedings; and * * it was open to the Law Society to participate in those proceedings and offer evidence in them, but it did not do so. 6After submissions the Tribunal declined the application because: * the Tribunal was not persuaded that it has power to make an order staying proceedings as an abuse of process; and, * in any event, the Tribunal was not persuaded, that Law Society's conduct of these proceedings or its failure to be involved in the proceedings in the Supreme Court brought by the Prothonatory, involve any abuse of process. 7The Tribunal was also not persuaded by argument on behalf of the Respondent that there was any prejudice to the Respondent or any other valid reason to defer the hearing of either application before the Tribunal until the decision of the Legal Services Division of the Administrative Decisions Tribunal in proceedings by the Law Society against the Respondent's wife. 8After the Tribunal had announced its decision in relation to those issues, leave was granted by the Tribunal to the Law Society to substitute the Amended Application for the first Application. The Amendment was to omit various grounds and to seek an order that the Respondent pay its costs of the proceedings. 9Shortly before 12.40pm on 11 September 2012, Counsel for the Respondent announced that there would be no cross-examination of any of the Applicant's witnesses. The luncheon adjournment was then taken until 1.45pm. When the hearing resumed at that time, the solicitor for the Respondent announced that his client had withdrawn and left the Court. He said that the solicitor and Counsel for the Respondent could not continue to appear in the proceedings. There was a short adjournment and at 1.50pm when the Tribunal resumed, leave was granted to the solicitor and Barrister for the Respondent to withdraw. 10The Hearing continued in the absence of the Respondent or any legal representative for him. At 3.40pm the Tribunal announced its orders for the name of the Respondent to be removed from the Roll of Local Lawyers and for the Respondent to pay the costs of the Law Society of or incidental to the proceedings commenced by each of its Applications.