Supreme Court New South Wales Medium Neutral Citation: Helby v Council for the Law Society of New South Wales and anor. [2013] NSWSC 1938 Hearing dates: 26 November, 11 December 2013 Decision date: 20 December 2013 Before: Bellew J Decision: (i)The decision of the first defendant of 21 November 2013 to suspend the practicing certificate of the plaintiff is set aside. (ii)The decision of the first defendant of 21 November 2013 to appoint a manager to the plaintiff's practice is set aside. (iii)I will hear the parties on the question of costs by the provision of written submissions to my Associate by 3 February 2014. Catchwords: LEGAL PRACTITIONERS - decision by the Council of the Law Society of NSW to suspend practicing certificate - allegations of dishonesty - whether necessary in the public interest to suspend the practicing certificate - whether allegations made out Legislation Cited: Legal Profession Act 2004 NSW Evidence Act 1995 NSW Cases Cited: Berger v Council of the Law Society of NSW [2013] NSWSC 1080 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Doherty v Law Society of NSW (29 August 2008, James J, unreported) Doherty v The Law Society of NSW and anor (11 September 2008, James J, unreported) Doherty v Law Society of NSW [2008] NSWCA 269 Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 Category: Principal judgment Parties: Christopher Vincent Helby - Plaintiff Representation: Counsel: Mr E W Young - Plaintiff Mr P Jammy - First Defendant Solicitors: Austin and Giugni Solicitors - Plaintiff Anne-Marie Foord - First Defendant File Number(s): 2013 / 357249 Publication restriction: Nil Judgment INTRODUCTION 1By a summons filed in this Court on 26 November 2013 the plaintiff seeks orders (inter alia) setting aside the decisions of the first defendant, the Law Society of New South Wales ("the Society"), to suspend his practicing certificate and appoint a manager to his practice. There has been no appearance by the second defendant in the proceedings who is the manager appointed by the Society. 2The matter first came before me on 26 November 2013 at which time I granted a temporary stay of the Society's decisions and made orders for an expedited hearing. At that time, the plaintiff gave undertakings ("the undertakings") that he would: (i)draw no further costs from his trust account for the Toohey Estate file without the consent of the Society or without this matter being determined; (ii)not draw any costs for any other file from his trust account without 2 days' notice to the Society, together with supporting documents; (iii)provide copies of his costs disclosures to all of his clients to the Society within 7 days; (iv)issue any outstanding trust statements to his clients within 7 days; (v)enrol in a course in Trust Accounting and Ethics within 28 days, or if no such course were available within that time, then the next available such course, at his cost; (vi)participate in the Senior Solicitors programme and accept mentoring by a senior Solicitor nominated by the Society, and confer at least once per month with that solicitor, and bear any costs. 3The plaintiff read the following affidavits in support of the orders sought: (i)Christopher Vincent Helby of 25 November 2013; (ii)Christopher Vincent Helby of 2 December 2013; (iii)Christopher Vincent Helby of 10 December 2013; (iv)Michael Anthony Giugni of 2 December 2013; (v)Howard Charles Hamilton of 29 November 2013; (vi)Beverley Anne Walker of 25 November 2013; (vii)Noelene Patricia Toohey of 25 November 2013; (viii)Mark Patrick Toohey of 25 November 2013. 4The Society read the following affidavits: (i)Ann-Marie Foord of 6 December 2013; (ii)Frederick Albert House of 9 December 2013. 5The plaintiff, Ms Foord and Mr House all gave oral evidence before me. 6The plaintiff sought to rely upon a further affidavit of John Sefton of 9 December 2013. That affidavit was in the nature of expert evidence and related to the taxation implications of practices in which the plaintiff was said to be involved. Objection was taken to that affidavit on the basis that it had been served outside of the terms of the timetable which had been set. 7Having read the affidavit I determined that it should be rejected. I concluded that those representing the Society had not been given a proper opportunity to consider its contents and had not, in particular, been provided with at least some of the material which formed the basis of the opinions expressed. THE FACTS The plaintiff's background 8The plaintiff is a solicitor who commenced practice in the late 1970s. In 1981 he moved to Parkes and joined the firm now known as Callachor and Helby. Apart from a period of approximately three months, he has conducted that practice as a sole practitioner. He is presently assisted by two support staff. The practice has a branch office in the township of Peak Hill at which the plaintiff attends each Tuesday and Friday. The inspection by Mr House 9In April 2013 Mr House, on behalf of the Society, conducted a trust account inspection of the plaintiff's practice. 10A total of nine files were selected by Mr House for examination, included in which was a file kept by the plaintiff in respect of his administration of the estate of the late Veronica May Toohey ("the Toohey file") who died on 31 July 1996 and whose last will and testament made provision for a life estate to her daughter, Janice Mary Toohey, who was in care. In 1997, following the initial distribution of the estate, there was a balance of $214,000.00 which remained for investment. The responsibility for the administration of the estate was later left to the plaintiff, the executors of the estate having apparently expressed some reluctance to become directly involved in such administration. 11Annexed to Mr House's report were copies of the ledger relating to the Toohey file along with copies of some tax invoices rendered by the plaintiff for work done on the file as follows: (i)16 January 2013 - $2,750.00; (ii)8 February 2013 - $2,750.00; (iii)8 April 2013 - $2,750.00; (iv)15 May 2013 - $2,750.00. 12None of those invoices detailed the work done on the Toohey file for which the plaintiff had charged fees. 13Also annexed to Mr House's report was a schedule of the costs charged by the plaintiff in relation to work done on the Toohey file, broken down into particular periods. That schedule establishes that the plaintiff charged fees of: (i)$20,295.00 for the year ending 31 December 2010; (ii)$13,585.00 for the year ending 31 December 2011; (iii)$20,935.00 for the year ending 31 December 2012; and (iv)$11,000.00 for the period between 1 January 2013 and 14 May 2013. 14On 21 May 2013, in circumstances where the Tax invoices rendered by the plaintiff did not show any detail of the work performed and where there was no evidence of any costs disclosure on the file, Mr House issued a requisition pursuant to s. 659 of the Legal Profession Act 2004 NSW ("the Act") seeking the production of: (i)copies of covering letters sent to the executors of the estate in relation to the Tax invoices dated 21 December 2012, 16 January 2013, 8 February 2013 and 8 April 2013; (ii)details of the work done in respect of which those Tax invoices were raised; (iii)the authority relied upon in each case to transfer the funds from the trust account to the office account on the same date on which the Tax invoice was raised; and (iv)in the event that Tax invoices were rendered personally to the executor(s), personal addresses for each of them. 15The plaintiff responded by letter of 23 May 2013 in which he said (inter alia): "Whilst the accounts are prepared on my memos of costs as a solicitor, they relate to work done as a tax agent in respect of the administration of the fund. The three Executors resolved many years ago to invest part of the funds in shares and part in bank deposits. Mrs Tuckerman operated the bank deposit in Wollongong. The Tooheys and I look after the shares. None of the Executors has any involvement in the administration, record or account keeping of the funds of the Estate. That is totally my responsibility. Receipt of funds, accounting for funds and payment on request for any needs of the beneficiary of the Trust are done by me. Company reports, share offers are all received by me. All tax returns are compiled by me. After signature by the three Trustees, they are submitted by me. These are all prepared and submitted based on information and records kept by me. A constant monitor of the share holding is maintained by me and provided to the Trustees from time to time and on request. For the first five or six years of the operation of the Trust, no charge was made at all save for the preparation and submission of the tax returns. It was then apparent that the Trust had little by way of tax deductions and had significant imputation credits that were not being used. As well, due to the lack of tax deductions, an annual tax liability was being incurred. At this stage, it was decided that I should receive fees more or less in accordance with the tax obligations of the Trust, whether these obligations would otherwise been (sic) met by payment or by use of the credits referred to above. These payments represent a responsibility that I had assumed which the Trustees were otherwise reluctant to assume. Please note here that significant personal differences sometime arise between Mr and Mrs Toohey and Mrs Tuckerman. Accordingly, I have, in accordance with the agreement, taken fees from time to time. Fees have been taken on a piecemeal basis rather than an annual basis purely as a matter of convenience. The fees appear as part of the annual taxation return and each year they are acknowledged in writing when parties sign the return. Copies of the returns for the whole of the period of the Trust are available." 16Mr House, having been overseas for some period of time, returned to speak with the plaintiff in Parkes on 6 August 2013. He interviewed the plaintiff on that day recorded the following in his report: "Mr Helby admitted at interview that he takes costs from trust on an ad hoc basis without reference to the trustees. He does not, he says, supply them with bills, merely places bills on the file. When I inquired how his costs are authorised if this is the case, he said that the executors are made aware of costs and authorise them after the fact by their perusal and signature of the tax return each year. He further stated that his costs are set so as to provide a sufficient claimable offset to the amount of tax otherwise payable by the estate. He admitted that he has not provided statements of account. He said, in relation to these arrangements, 'I know it is not in accordance with the rules but it is a long-standing arrangement'" 17Mr House subsequently carried out further investigations before providing a report dated 30 October 2013 which was received by Ms Foord on behalf of the Society on or about 1 November 2013. The report included Mr House's analysis of what he considered to be the proper range of costs which should have been charged by the plaintiff for his work on the Toohey file. In carrying out that analysis, Mr House made an estimate of time which he thought would have been required for the plaintiff to do the work which was involved in administering the estate. His estimate of the appropriate range of costs was substantially less than the amounts which had been charged by the plaintiff. 18In performing that exercise, Mr House noted that he had "allowed for the estimated time to carry out the work involved". It appears that Mr House proceeded on the basis that work involved amounted to little more than receiving dividends and preparing yearly taxation returns. The decision to suspend the plaintiff's practicing certificate 19On 7 November 2013, Ms Foord wrote to the plaintiff enclosing a copy of Mr House's report. She advised the plaintiff that having regard to the "seriousness of the matters in the report" she proposed to ask the Council of the Society to give consideration to the suspension of the plaintiff's practicing certificate, pursuant to the provisions of s. 548 of the Act, at its meeting of 21 November 2013. She also invited the plaintiff to make such submissions, and to provide such material, as he believed appropriate in relation to why the Society should not take such action. 20On 13 November 2013 Ms Foord issued a Memorandum to the Council of the Society containing a draft resolution that pursuant to the provisions of s. 504 of the Act, a complaint be made against the plaintiff alleging that he had: (1)misappropriated trust moneys; (2)failed to disclose costs; (3)grossly overcharged; (4)transferred trust money without authority; and (5)failed to provide trust statements. 21The memorandum contained a further draft resolution, pursuant to the provisions of s. 548 of the Act, that it was necessary in the public interest to immediately suspend the plaintiff's practicing certificate on the ground of the seriousness of the conduct which had been specified. 22On 18 November 2013 the solicitors for the plaintiff responded to Ms Foord's letter of 7 November. In doing so, they took particular issue with the analysis conducted by Mr House to which I referred in [17] and [18] above. Having pointed out that Mr House had, in their calculation, understated (by almost $100,000.00) the income generated by the estate over a particular period, they said: "Unfortunately, Mr House has provided an estimate of time based on little more than his estimate of book keeping for receiving dividends and preparing taxation returns. He does not take into account the large range of additional work that Mr Helby has undertaken, including as follows: a. The Tooheys, his long standing clients and Mr Helby met, usually on four occasions per year at which time there were discussions about the Estate Trust. b. The work undertaken by Mr Helby in compiling the information required for the tax returns including correspondence with Mrs Tuckerman regarding the term deposits. c. The work undertaken by Mr Helby in checking the tax refunds and receipting of same. d. The work undertaken by Mr Helby arising due to the reluctance of the client Executors to be involved in the Estate Trust including that fell upon him to, in inter alia, read annual reports, notice of annual general meetings, proxy voting notices, interim reports, dividend reports and all other correspondence and make decisions accordingly. Without reading this documentation he will not be in a position to make an informed decision or advise the clients in relation to matters such as buyback offers, rights offers and share purchases. e. The work undertaken by Mr Helby requiring him to undertake independent financial assessment before an informed decision could be made regarding such offers and purchases particularly during the Global Financial Crisis. We trust the Mr House's preliminary view of over charging or any suggestion of fraud or dishonesty will not be pursued, however if it is, Mr Helby is confident that it will not be found to be substantiated. In any event, it is not a factor that the counsel (sic) can rely in its consideration of whether or not to take the severe step of suspending Mr Helby from practice." 23The letter proceeded to set out of a number of mitigating circumstances which the plaintiff asked be taken into account by the Society in considering whether it was in the public interest for his practicing certificate to be suspended. 24On 21 November 2013 the Council of the Society met and passed a resolution in the following terms: "RESOLVED that council deal with this matter on an urgent basis. FURTHER RESOLVED that pursuant to the provisions of s. 504 of the Legal Profession Act ("the Act") the following complaint be made against Christopher Vincent Helby (MN: 6811) ("the Solicitor"): 1. The Solicitor has misappropriated trust monies. 2. The Solicitor has failed to disclosed costs. 3. The Solicitor has grossly overcharged. 4. The Solicitor has transferred trust money without authority. 5. The Solicitor has failed to provide trust statements. FURTHER RESOLVED that, pursuant to the provisions of s. 548 of the Act the Council considers that it is necessary in the public interest to immediately suspend the local practicing certificate of the Solicitor on the ground of the seriousness of the conduct in respect of which complaints had been made against the Solicitor and determines immediately to suspend the local practicing certificate of the Solicitor." 25The Council of the Society expressed its reasons in the following terms: "The Council having regard to the contents of the report prepared by Mr House, Trust Account Investigator, dated 30 October 2013 is of the opinion that the Solicitor has misappropriated the client trust funds. The nature of the Solicitor's alleged conduct is of such seriousness that the Council is of the view that the immediate cessation of the Solicitor's right to practice is warranted." 26A resolution that a manager be appointed to the plaintiff's practice was also passed. The plaintiff's affidavit evidence 27In his affidavit of 25 November 2013 in relation to the costs that he had charged in respect of the estate administration, the plaintiff stated the following commencing at paragraph (27): "(27) Insofar as the House report refers to breaches of the Legal Profession Act in relation to failure to disclose the basis of costs in writing, the failure to observe correct procedure before withdrawing costs from Trust, and failure to provide Trust statements to the client, I admit those matters fully and apologise for them. (28) Mr House, however, goes further and refers to overcharging and dishonesty and fraudulent dealing in Trust property. I do not accept these assertions. Mr House has made calculations whereby he concludes on page 5 of his report that I have overcharged the Estate. He has not taken into account all matters that I undertook on behalf of the Estate, which are set out in my letter annexure C, nor has he accurately recorded the income of the estate". 28Annexure C to which the plaintiff referred was the letter from his solicitors, the relevant part of which I have set out at [22] above. 29Subsequently, at paragraphs (3) and following of his affidavit of 2 December 2013 the plaintiff stated: "(3) In relation to the costs that I charged the Estate these were based upon a genuine estimate from me of the time that I have spent in managing the Estate's affairs. These fees were legitimately deductible by the Estate when it filed its income tax returns. My fees were not based on the amount of tax payable by the Estate. My fees were issued during a financial year prior to me being aware of what the taxable income of the Estate would be, therefore I was not in a position to calculate the tax payable by the Estate when the affairs were rendered. 4. The Estate has always paid income tax. Annexed hereto and marked with the letter "C" is a true copy of the Notices of Assessment received by the Estate, excepting for the year ended 2000, showing that in each year income tax was paid by the Estate. At no stage did my fees equate to the tax payable by he estate. I am currently unable to locate the assessment for the year ending 30 June 2000 but if I can locate it I will provide it to the defendant's solicitors. 5. As indicated above, the Estate received a tax deduction for my fees in each financial year. Those fees which were collected by myself, included GST which I remitted to the Australian Taxation Office when filing my quarterly Business Activity Statement. Those fees were also taxable and were included in my income for each financial year, to (sic) which I paid income tax together with the Medicare Levy which the Estate would otherwise have not paid." The plaintiff's oral evidence 30The plaintiff was cross examined by counsel for the Society. Consistent with his admissions to Mr House, he accepted without equivocation (commencing at T 11 line 6) that in performing work on the Toohey file he failed to: (b)disclose the basis of his fees in writing; (c)observe correct procedures in respect of drawing his costs from his trust account; and (d)provide trust statements to the trustees. 31He said (at T 11 line 27) that from his perspective, these matters to which he had admitted encompassed the entire extent of his wrong doing. 32The plaintiff was cross examined about the basis on which he charged for work done on the Toohey file. He said (commencing at T 13 line 17) that when he came to issue a tax invoice he relied upon his memory of the time that he had spent working on the file, and of the work that he had undertaken. He also said that he had access to the file to which he could refer, although he later accepted that this would not have provided him with a great deal of assistance. 33The plaintiff kept no contemporaneous record, by way of a time sheet, file note or otherwise, which recorded either the nature of the work undertaken or the time spent in doing so. He said (at T 15 line 14) that he estimated the work he had done on the file but also said (at T 15 line 20) that it was "almost certainly" the case that, at least from time to time, the amounts which he charged by reference to his estimates were less than what would have been charged had he billed by reference to specific units of time. 34The plaintiff also gave evidence (commencing at T 16 line 16) that his work in administering the estate necessitated at least a weekly review of the investments which had been made, and associated attendances upon at least one of the executors. The necessity for such attendances had, he said, increased in 2008 at the time of the downturn in the share market. 35The cross examination then turned (commencing at T 18 line 40) to the plaintiff's letter of 23 May 2013, an extract from which is set out at [15] above: "Q. So the tax obligations of the trust being money that the trust otherwise would have had to pay by way of tax? A. Yes. Q. So charging in accordance with the tax obligations of the trust means charging in a way that those obligations are absorbed, is that correct? Would that be a correct way of putting it? A. That's what the words say. Q. So I am not misunderstanding this, the amount that you charge would be equivalent to the obligation that would have been payable as tax? A. No. Q. Sorry? A. In practice it was not possible. Q. Leave aside what happened in practice. That was the agreement that you have described to us? A. That was a proposal, that was. Q. That was what was intended? A. Yes. That's what they said to me. Q. That's what they said to you, or that's what you said to them? A. No, I think it came from them in the first place. Q. It was their suggestion? HIS HONOUR Q. So am I right in saying that, up until the time that it was decided that you should receive fees more or less in accordance with the tax obligations, you hadn't charged at all? A. That's right, for the Q. Notwithstanding the fact that you say you have done work on the file? A. That's right. Q. Why didn't you charge for that period? A. There wasn't much money in the trust. The shares were much less in those days. There wasn't much coming in. It was just starting. Q. But you were doing work on the file? A. Same then as I do now. " 36When asked by me how the proposal to which he had referred operated in a practical sense, the plaintiff said (commencing at T 20 line 30): "A. I it never actually worked by consideration of what the tax was because it happened through the year and I didn't know what the tax was going to be and I didn't know. I was just aware that there were credits that after I did my bill and it became a tax deduction for them, then the effect would be they would get some part of what I had charged back from an income tax deduction because the franking credits were there. Q. Did you take steps to calculate what the tax liability was before you rendered an account? A. No. I always knew that it would be less sorry. I knew that we could never get all of the franking credits back unless I charged about $150,000 or something. So we just did the best we can to get to have me paid for what I had done, and to get them some benefit by way of tax refunds. And it was Q. So this wasn't a case where you sat down and ascertained the potential tax liability, and having done so, then rendered a bill in an amount equating to that tax light (sic)? A. Your Honour, I did bills maybe ten times a year for modest amounts. Q. I am not asking you A. I am sorry, I apologise. Q. I am trying to ascertain how this agreement was put into practice? A. Only in the general way that I have described, that I would do bills, and they would be tax deductible, and the result would be a tax refund from the franking credits. Q. Were there occasions when your bill that you rendered was less than the tax liability? A. It was always less than the tax because they paid tax every year, in that it didn't get all of its franking credits back ever." 37Finally, the plaintiff was cross-examined (commencing at T 22 line 9) concerning the tax invoices which were rendered for work done on the Toohey file: "Q. Now, I don't want to drag you through the entire history of the work you have done for this estate, but I would like to spend a little time on the most recent period, shall we say, 2012 and 2013. Now, you would have seen that part of Mr House's trust report was an extract from the trust ledger of the Toohey estate. Do you recall that? A. Yes. Q. And that ledger begins at page 21 of exhibit A in front of you. It is part of Mr House's report which in turn is annexure A to your affidavit of 20 November. You have the trust ledger, it begins at page 21. I am using the page numbering at the bottom right hand? A. Yeah, I'm sorry. I am a bit slow. Mmhm. Q. I just ask you turn to page 49. I have selected page 49 because that is where the calendar year 2012 begins, is that correct? Do you agree with that? A. Yes. Q. Now, if one goes through page 49 and page 50, and one looks at the debit column of your trust ledger, one sees that the following fees have been charged and debited to the estate by your firm. $2,750 in February 2012? A. Mmhm. Q. 1,650 in March? A. Yes. Q. 1,650 again in May? A. Yes. Q. $550 in June. You see that? A. Yes. Q. $2,750 on 8 August? A. Mmhm. Q. A further amount of $588 on the same date? A. Yes. Q. $2,750 in September? A. Yes. Q. 1 September. It goes over the page. $2,750 in October? A. Yes. Q. $2,750 in December. Sorry, that's on 5 December. And then on 21 December, a further amount, the same, 2,750? A. Yes. Q. A further equivalent amount on 15 January of 2,750? A. Mmhm. Q. And on 8 February, again, 2,750. If one goes over the page, similar amounts in April, 2,750, and then again in May, 2,750? A. Yeah. Q. That seems to be the most common amounts that is that you billed? A. For that period, yes. Q. Does that correspond to time spent on the estate? A. Time and the work, yes. Q. Time and work? A. Well, it's both. It's the work and the time. Q. Well, let's do some paperwork. 2,750, if it is time, how is that calculated? A. Well, ten per cent of it is GST, it brings it down to 2,500. I assume without having the bill in my hand it would just be for what I had done in the in the relevant period. Q. $300 an hour? A. Something like that, yeah. Q. Is that right? A. Yeah, I expect so, yes. Q. 2500 at $300 an hour? A. Eight and a bit hours. Q. Eight and a bit? A. Eight and a third. Q. And that is consistent with the amount of time you estimated you had spent on the estate? A. I expect so. Q. For each one of those payments? A. Yes. Q. Eight and a bit hours. That's a fair amount of work on an estate, isn't it, eight and a half hours work. Would you agree that that is a considerable period of time to spend on that? A. Yes. But it went over, see, in the last one is May, and the one before that is April, so it's about five or six weeks. ..... Q. Mr Helby, on 5 December you charged for what you call eight and a bit hours work, is that correct? A. Well, you asked me $300 an hour, 2,500, and I did the mathematics for you. Q. You haven't said you were working the estate. Your charge rate you say was at $300 an hour? A. Yes. Q. And the amount charged by you was $2,750? A. Yes. Q. And you have said, in answer to one of my questions, that that was based on time and the work done? A. Yes. Q. So in time terms, that is eight and a bit hours? A. Yes. Q. You did that maths yourself. And that's what you charged for on 5 December? A. I expect so. Q. And then you have charged again on 21 December for another eight and a bit hours, is that correct? A. Mmhm. Q. And again on 16 January? A. Yes. Q. And again on 8 February? A. Yes. ........ Q. The bills, in as much as they exist, commence at page 52 of the court book. Mr Helby, would you like to turn to page 52 to see if it will assist you? A. Mmhm. Q. Is it typical of the bills that you would issue? A. Yes. Q. You see that correspondence to the 16 December 2012 entry? A. Yes. Q. It simply says, "To our costs of acting in respect of the estate including general administration" A. Yes. Q. "$2,500," and there is, if one turns, if one goes further at page 54, a similar bill for 8 February. You see that? A. Yes. Q. Page 56, a similar bill for the 8 April charge. Would it be reasonable to assume that if we had in our possession bills for the charges in December and January, they would be in this form? A. Yes. Q. So they would simply say, two hour costs 2,500, no break down of the work that you have done? A. That's right. HIS HONOUR Q. Is there any record on the file of the break down of work that you did? A. No, your Honour. Q. So the file wouldn't assist you? A. No. JAMMY Q. Because you have already told us, you have already told his Honour that you don't keep a record of the work that you have done? A. That is true. Q. You are relying entirely on your memory? A. Yes. Q. And that is true even where you complete a bill only at the conclusion of a matter, you still rely on your memory? A. Yes, and the file. Q. So it is fair, then, to ask you what you did for the 35 hours between the beginning of December 2012 and 8 February 2013? Sorry, 2012 to 2013? A. With the one qualification that the bill may not represent the precise period that's run overall that runs the whole year, and I do a bill from time to time. So it may be that I have done some work, and I just do a bill like this because they were happy to have it like this. But the work's done over the whole year, the whole 12 month period. ..... Q. Do I assume that the bill for 8 February was referable to the work that you had done between 17 January and 8 February? A. At least in part, yes. Q. Well, when you say "at least in part", what's the other part? A. Well, it could be carried over from the whole of the 12month period. I just did a bill from time to time for them. Q. But you wouldn't charge, would you, in circumstances where you appear to be rendering regular bills, and in circumstances where you rendered one on 16 January and then rendered the next one on 8 February, the work referable to the bill of 8 February wouldn't go back beyond 16 January, would it? A. It may have. Q. But that wouldn't how would that make sense? A. Well, I was just doing them, bills for these amounts because it covered in the whole of the year. I was doing it's hard to explain without telling you everything I was doing in the thing, but most of that maybe all of it was for that immediate period. Maybe there was carry over. Q. But as a matter of commonsense, Mr Helby, when you came to do again using this as an example when you came to do your bill for 8 February, surely you would sit down and say to yourself, "Well, the last bill I issued was 16 January." A. Mm'hm. Q. "Therefore what I'm now entitled to bill is the work that I've done between 17 January and 8 February." A. Yes. Q. You'd ask yourself that as a matter of common sense, wouldn't you? A. It's more a case of I've done more work. I've done I'm constantly doing work on it. " THE RELEVANT LEGISLATIVE PROVISIONS 38Section 548 of the Act is in the following terms: 548 Immediate suspension of local practising certificate (1) This section applies if the Commissioner or the relevant Council considers it necessary in the public interest to immediately suspend a local practising certificate on the ground of the seriousness of the conduct in respect of which a complaint has been made in relation to the holder of the certificate. (2) The Council may immediately suspend the practising certificate. The Commissioner may direct the Council to immediately suspend the practising certificate, and, if so directed, the Council must immediately suspend the practising certificate. (3) The suspension operates until the earliest of the following: (a) the complaint is withdrawn or dismissed, (b) the suspension is revoked, (c) the subject-matter of the complaint is finally dealt with by the Tribunal, (d) the suspension is successfully appealed. (4) The Council must give written notice of the suspension to the holder of the practising certificate and that notice must: (a) include an information notice about the suspension, and (b) indicate the period of operation of the suspension as provided by subsection (3), and (c) state that the practitioner may make representations about the suspension. (5) The suspension takes effect on the day that notice of the suspension is given to the holder. (6) The holder may make written representations to the Commissioner or the Council about the suspension, and the Commissioner or the Council must consider the representations. (7) The Council may revoke the suspension at any time (unless the suspension was directed by the Commissioner). The Commissioner may at any time direct the Council to revoke the suspension (even if the suspension was not at the direction of the Commissioner). (8) A decision to revoke a suspension need not be in response to any written representations made by the holder. 39Section 549 is in the following terms: 549 Appeal (1) A person may appeal to the Supreme Court against a decision of the Commissioner or a Council under this Part to suspend or direct the suspension of a local practising certificate. (2) The Supreme Court may make any order it considers appropriate on the appeal. GENERAL PRINCIPLES 40The appeal conferred by s. 549 is an appeal de novo (see Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669). 41There are few first instance judgments of this court in matters of this nature. In Berger v Council of the Law Society of New South Wales [2013] NSWSC 1080 Beech-Jones J noted (at [9]) that the combined efforts of the parties in that case resulted in the location of only two such judgments, namely Doherty v Law Society of New South Wales (29 August 2008, James J, unreported) ("Doherty No 1") and Doherty v The Law Society of New South Wales and anor (11 September 2008, James J, unreported) ("Doherty No 2"). His Honour also noted that there was a judgment of McColl JA granting a limited stay of the decision of James J at first instance (see Doherty v Law Society of New South Wales [2008] NSWCA 269 ("Doherty No 3"). 42By reference to those decisions his Honour observed (at [10]): "In Doherty No 2 at [3] James J referred to the "emergency nature" of the power conferred by s 548(2) but did not elaborate. Given that McColl JA was only dealing with an application for a stay in Doherty No 3, her Honour also did not undertake any detailed analysis of the power conferred by s 548(2). However, her Honour did note that the "protection of the public means that the public interest is always entitled to significant weight" (at [33]). Her Honour cited a passage from the judgment of Spigelman CJ in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [108] to [109] which referred to an earlier judgment of his Honour in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [20]. In the latter passage Spigelman CJ identified "four interrelated interests" at stake in such cases. Those interests were the need for clients to have confidence in entrusting their affairs to a lawyer, the need for fellow practitioners to be able to accept the practitioner's words and conduct, the need for the judiciary to have confidence in those who appear before the courts, and the overall need for the public "to have confidence in the legal profession by reason of the central role the profession plays in the administration of justice". 43His Honour continued (at [12]): ".... the discussion of the four interrelated interests in Cummins that was approved in Stevens and Doherty No 3 is still apposite. Sub-section 548(1) makes it clear that the necessity to protect the "public interest" is at the core of the power conferred by s 548(2). The four interrelated interests identified by Spigelman CJ in Cummins are all encompassed by the phrase "public interest" as used in s 548(1). This is reinforced by the statement of the purposes of the Act in s 3(1)(a) which refers to the regulation of legal practice "in the interests of the administration of justice and for the protection of the clients of law practices and the public generally" (see O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216). Otherwise, the purely protective nature of this type of proceeding has long been recognised (see Clyne v New South Wales Bar Association [1960] HCA 40; 104 CLR 186 at 201 to 202; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637)." 44In respect of the word "necessary" as it appears in s. 548(1) his Honour said (at [16]): "In a different but equally serious context the High Court has observed that the word "necessary ... is a strong word" (Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In this context it connotes a relatively high degree of satisfaction that the suspension should be ordered pending the pursuit of a complaint. It can be contrasted with the power of the Tribunal to make "such orders as it thinks fit" (s 562(1))." The submissions of the plaintiff 45Counsel for the plaintiff relied on both written and oral submissions. The essence of those submissions may be summarised as follows. 46Counsel commenced by pointing to the fact that even though the Society had alleged that the plaintiff had engaged in a practice of dishonestly overcharging, and had further alleged that the plaintiff had engaged in a form of tax evasion, neither of those propositions had been put directly to the plaintiff in the course of cross examination. Counsel submitted that, in any event, neither proposition had been made out and that it was not necessary in the public interest to cancel the plaintiff's practicing certificate. 47It was submitted on behalf of the plaintiff that although his billing practices in relation to the Toohey file were not "terribly clear", and were at the very least imperfect, the evidence did not support a conclusion: (i)that the amounts charged were excessive having regard to the work which was done; and/or (ii)that the plaintiff had charged for work which had not been done; and/or (iii)that the plaintiff had acted dishonestly. 48Counsel submitted that it would be an error to proceed, as Mr House had done in preparing his report, upon the assumption that the work required of the plaintiff in administering the estate amounted to little more than bookkeeping and attending to the yearly preparation of a tax return. He submitted that the evidence established that the work done by the plaintiff extended well beyond such matters and justified the fees charged. 49Counsel also pointed to what he submitted was the candour with which the plaintiff had admitted to failing to (inter alia) make a proper costs disclosure and obtain authorisation before transferring monies from his trust account for his fees. In this regard, counsel submitted that not only had the plaintiff been candid in his evidence before the court, he had also been candid in his discussions with Mr House at the time that these issues first arose. Counsel also relied upon the fact that of the nine files selected by Mr House for examination, an issue had arisen only in respect of one. 50It was further submitted that any agreement which had been reached between the executors and the plaintiff concerning the plaintiff's fees was not properly characterised as one which was fraudulent. Counsel submitted that upon a proper analysis of the evidence, the plaintiff had done no more than issue tax invoices for work done, the amounts of which were legitimately claimed as a tax deduction by the estate. 51Finally, counsel submitted that the issue of whether or not it was necessary in the public interest to suspend the plaintiff's practicing certificate was to be resolved not only according to what the plaintiff had done in the past, but what he was doing at present and what he intended to do in the immediate future. In these two latter respects, counsel relied upon the undertakings which, he submitted, were directly relevant to the assessment of any risk in allowing the plaintiff to retain his practicing certificate. He also relied, in particular, upon the affidavit evidence of Ms Walker and Mr Hamilton which, he submitted, went directly to one or more of the public interest considerations which were relevant to my determination. The submissions of the Society 52Counsel for the Society similarly relied upon both written and oral submissions. The Society's case that it was necessary, in the public interest, to suspend the plaintiff's practicing certificate had two essential components. 53The first concerned the plaintiff's conduct in charging for work done on the Toohey file. It was submitted that in this respect, the plaintiff: (i)had acted in a way which resulted in a fraud being committed on the Commissioner of Taxation because the essence of an agreement which had been reached between the plaintiff and the executors of the estate was one directed to the avoidance of tax (commencing at T 3 line 35); (ii)had calculated his fees according to the tax liability of the estate and not according to the work he had performed, with the intention of reaching a position of what was described as "tax neutrality" (commencing at T 65 line 9); (iii)had, in issuing Tax invoices, represented that work had been done on the Toohey file when it had not been done, and had accordingly acted dishonestly (at T 67 line 5) and engaged in tax evasion (at T 68 line 25). 54The second component, which was described as the "real danger" in permitting the plaintiff to retain his practicing certificate, was that the plaintiff had failed to appreciate the true nature of his wrongdoing which, it was submitted, extended substantially beyond the irregularities which he had admitted. 55In terms of the allegation that the plaintiff had been party to a fraud upon the Commissioner of Taxation, counsel for the Society submitted that the evidence established that the essence of an agreement reached between the plaintiff and the executors was that the plaintiff would charge amounts for work done which were simply the equivalent of the taxation liability of the estate. It was submitted that the amounts charged bore no relationship at all to the work which was actually done. 56In terms of the allegation of overcharging, counsel for the Society submitted that the plaintiff's own evidence supported the conclusion that his work on the Toohey file was essentially restricted to what might be described as administrative duties and that the performance of those duties did not justify the amounts which had been charged. Reliance was also placed upon the method by which the plaintiff assessed the amount of costs charged from time to time, which involved an estimate being made by the plaintiff of the work done and time taken by reference only to his memory. 57For all of these reasons, it was submitted that I would be satisfied that it was necessary in the public interest to suspend the plaintiff's practicing certificate. CONSIDERATION Preliminary observations 58Before considering the submissions advanced on behalf of each party, it is appropriate that I make a number of preliminary observations. 59Firstly, it is important to emphasise that the Society's case is that it is necessary in the public interest to suspend the plaintiff's practicing certificate because the plaintiff acted dishonestly, in one or more of the ways set out in [53] above. 60The seriousness of those allegations needs no further comment. As Beech-Jones J observed in Berger (at [19]), the very significant effect that suspension may have upon the interests of a practitioner invokes the principles discussed in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, especially where the matters alleged are serious (as to which see s. 140(2) of the Evidence Act 1995 NSW). His Honour also observed (at [16]) that the word "necessary" as it is used in s. 548 requires that the court have a relatively high degree of satisfaction that suspension should be ordered pending the pursuit of a complaint. In determining whether it is necessary in the public interest to suspend the plaintiff's practicing certificate, I have proceeded in accordance with these observations. 61His Honour also pointed out (at [26]) that the word "dishonest" is not to be found in the legislation. He concluded that in order to determine whether or not a practicing certificate ought be suspended, it was incumbent upon the court to make such findings as it could concerning the knowledge, belief or intent of the practitioner in question when he undertook the various acts of which complaint was made. His Honour concluded that such findings were critical to determining whether or not the public interest required the suspension of a practicing certificate, before going on to say (at [27]): "For example, if Mr Berger withdrew money on account of fees based on a mistaken, but reasonable or even arguably reasonable, belief that he was entitled to do so, then that makes it far more likely that, having been apprised of the correct position, he will be appropriately cautious when withdrawing funds in the period pending the determination of the complaint. On the other hand, if the Law Society established that Mr Berger withdrew money knowing that he was not entitled to do so and deliberately misleading others as to the facts supporting his entitlement to do so, then it would advance a long way towards the establishment of the proposition that it is necessary to suspend Mr Berger's practicing certificate. Prima facie, a practitioner who engaged in such conduct would represent an unacceptable risk to their clients and the administration of justice". 62In light of the allegations made by the Society, all of these observations are, in my view, clearly apposite to the present case. 63Secondly, the Society bears the burden of proving the allegations that have been made, and of persuading the court that the suspension of the plaintiff's practicing certificate is therefore necessary (see Berger at [19]). 64Thirdly, and in terms of the second component of the Society's case, there can only be reliance upon the plaintiff's failure to fully appreciate the extent of his wrongdoing if that wrongdoing is in fact made out. The wrongdoing which is relied upon by the Society in the present case, and which is said to render it necessary to suspend the plaintiff's practicing certificate in the public interest, is not constituted by the irregularities to which the plaintiff has admitted. It is constituted by the matters set out in [53] above. So much is clear from the position taken by counsel for the Society at the hearing (commencing at T 71 line 44): "If it were just that, if it were simply the procedural transgressions which Mr Helby has admitted to ..... three areas that he has conceded - and if it was just that, we probably wouldn't be standing here. But it is something more than that. Certainly, it's something more than that". 65Fourthly, and following upon the third observation, although the plaintiff's various admitted failures fall substantially short of what might reasonably be expected of a solicitor, they do not, without more, constitute evidence dishonesty and do not, of themselves, render it necessary in the public interest to suspend his practicing certificate. 66Fifthly, there is specific evidence before the court going to the general issue of the plaintiff's honesty in the conduct of his practice as a solicitor. Ms Walker, the Registrar of the Local Court at Parkes, deposed (at paragraph (6) of her affidavit) that in her view, the plaintiff was an honest person. Mr Hamilton, a former Crown Prosecutor and a retired Magistrate of the Local Court, similarly deposed (at paragraphs (4) and (5) of his affidavit) that his dealings with the plaintiff led him to form the same view. Mr Hamilton specifically expressed the view that his dealings with the plaintiff, whether as a Crown Prosecutor or a Magistrate, were such that he could always accept what the plaintiff told him as being honest. The affidavits of Ms Walker and Mr Hamilton were read without objection and neither person was cross-examined. 67The relevant public interest considerations in this case include the need to be able to accept a practitioner's words and conduct, as well as a need for the judiciary to have confidence in those who appear before the courts. The unchallenged evidence of Ms Walker and Mr Hamilton does not of course, determine those issues. However, that evidence is directly relevant to such issues, as well as to my determination of the plaintiff's honesty. In my view, such evidence tends against the conclusion urged on behalf of the Society that it is necessary in the public interest to suspend the plaintiff's practicing certificate. 68Finally, and particularly in view of the allegation made by the Society that the plaintiff has acted dishonestly, I carefully observed the plaintiff as he gave evidence. Although there were occasions on which the plaintiff's answer to a particular question wandered from the terms of the question asked, he impressed me as a truthful witness and as someone who was doing his best to be candid with the court. The allegation of taxation fraud 69The issue of whether a fraud has been committed on the Commissioner of Taxation arises primarily from the plaintiff's letter of 23 May 2013, the relevant parts of which are set out at [15] above. In that letter, the plaintiff said that for the early years of the estate's administration, he charged no fees. He explained in his evidence (at T 19 line 30) that this was because the amount under administration was small. I infer that as a consequence, there was little work to be done by the plaintiff at that time in terms of the administration of the estate. 70The letter of 23 May 2013 went on to explain that a decision was reached that the plaintiff would receive fees "more or less" in accordance with the taxation obligations of the estate. According to the letter, the plaintiff took fees "from time to time" and "in accordance with the agreement". 71If it were the case that: (i)no work had been done on the Toohey file at all during a particular financial year; (ii)the plaintiff nevertheless issued Tax invoices in amounts calculated according to the tax liability of the estate, thus representing that work had been done when it had not; and (iii)a tax deduction was claimed by the estate on the basis of the amounts contained in those Tax invoices, such conduct would obviously be dishonest. 72Conversely, if it were the case that: (i)some work had been done on the file during a particular financial year; (ii)the charges applicable to the amount of work done were less than the estate's tax liability; (iii)the plaintiff issued Tax invoices in amounts calculated, not according to the work done but according to the tax liability of the estate; and (iv)a tax deduction was claimed by the estate on the basis of the amounts contained in those Tax invoices that conduct would also be dishonest. 73Common to both of these examples is the practice in which the Society alleges that the plaintiff engaged, namely a practice of rendering Tax invoices relating to the Toohey file, not according to work done but according to the tax liability of the estate. 74I am not satisfied that the plaintiff engaged in any such practice. 75In his affidavit of 2 December 2013, the plaintiff said at paragraph (3): "My fees were not based upon the amount of tax payable by the Estate. My fees were issued during a financial year prior to me being aware of what the taxable income of the estate would be, therefore I was not in a position to calculate the tax payable by the Estate when the fees were rendered". 76In the course of his evidence (at T 19 line 8) the plaintiff described what was outlined in his letter of 23 May 2013 as a "proposal" which, he thought, had originated from the executors. Consistent with the contents of his affidavit of 2 December 2013, he rejected the suggestion that the amount he charged the estate for work done was equivalent to the expected tax liability. Importantly, the plaintiff said (at T 20 line 31): ".... It never actually worked by consideration of what the tax was because it happened through the year and I didn't know that the tax was going to be and I didn't know. I was just aware that there were credits that after I did my bill and it became a tax deduction for them, then the effect would be they would get some part of what I had charged back from an income tax deduction because the franking credits were there". 77Having regard to this evidence, which I accept, I am not satisfied that the plaintiff rendered tax invoices in amounts which were calculated according to the tax liability of the estate, so as to bring about a position of tax neutrality. Even if such an arrangement had been proposed at one point, there was, as the plaintiff pointed out, a fundamental barrier to its implementation. Put simply, it was the plaintiff's practice, as he set out in his affidavit, to issue tax invoices during a financial year, before he became aware of the amount of the estate's tax liability. His oral evidence set out in [76] above was completely consistent with that part of his affidavit. Having regard to his practice of rendering Tax invoices throughout the financial year, the plaintiff was not in a position to determine, in advance, the extent of the estate's tax liability and adjust his Tax invoices accordingly. 78It is also relevant that in both his letter to Mr House of 23 May 2013 and in his evidence before me, the plaintiff explained that for the first several years of the estate's administration, he did not charge any fees. As I have noted, I have inferred that this was because the amount under administration was small and little work was required. It was thereafter decided that the plaintiff should receive fees. 79I am satisfied that the decision that the plaintiff should receive fees was, consistent with what he said in his letter to Mr House, one which was made having regard to the responsibility he had assumed in administering the estate. That was a responsibility which, on the evidence, the executors did not wish to assume. In other words, having not charged for work performed in respect of the administration of the estate in its early years, but having assumed the responsibility of administering the estate, it was agreed that the plaintiff would charge for the work he undertook, in which case his fees would be legitimately tax deductible by the estate. 80Further, I am not satisfied that the plaintiff charged fees for work which had not been done, so as to facilitate the estate claiming a tax deduction to which it was not entitled. For the reasons more fully set out in my consideration of the allegation of overcharging, I am satisfied that the plaintiff held a genuine belief that he was entitled to the fees that he charged in relation to the Toohey file. 81I am satisfied on the evidence before me that what was put in place was a practice where the plaintiff would be paid for the responsibility he had assumed in carrying out the administration of the estate, and where his fees would be claimed as a tax deduction. As the plaintiff put it (at T 20 line 42 and at T 21 line 4) it was an arrangement: "..... to have me paid for what I had done, and to get them some benefit by way of tax refunds ... I would do bills, and they would be tax deductible, and the result would be a tax deduction from the franking credits". 82Accepting, as I do, that this is a proper characterisation of what the plaintiff in fact did, I do not regard his conduct as being dishonest, much less conduct which constitutes a fraud upon the Commissioner of Taxation. 83Finally, it was not directly put to the plaintiff that he had engaged in a practice which amounted to a fraud on the Commissioner of Taxation. I have already made reference to the seriousness of such an allegation. Although not determinative of the matter, in my view the allegation should have been squarely put to the plaintiff. The allegation of overcharging 84I am not satisfied, on the evidence before me, that in issuing Tax invoices relating to the Toohey file, the plaintiff acted dishonestly by representing that work had been done when it had not, or that he otherwise engaged in what was submitted on behalf of the Society to have been gross overcharging. I have reached this view for the following reasons. 85Firstly, the plaintiff gave evidence, which I accept, that before issuing a tax invoice he had regard to the work that he had done on the file and the time that he had spent in doing it. I am satisfied that this evidence was truthful and that the plaintiff did have regard to such matters. That is not to say that his method of calculating his fees was appropriate. Clearly, it was not. In fact, it left a great deal to be desired. However, inappropriate though his method might have been, this was not a case in which the plaintiff had no regard at all to the work that he had done on the Toohey file before he issued a Tax invoice. Moreover, the fact that his method of calculating his fees was inappropriate and lacking precision does not mean that he acted dishonestly. 86I am satisfied that the plaintiff held a genuine belief that he was entitled to the fees he charged and that in issuing Tax invoices he was not deliberately misrepresenting that he had performed work when in fact he had not. 87Further, I am unable to accept the submission that I should find that the plaintiff engaged in dishonest overcharging because his responsibility in administering the estate was restricted to what were essentially administrative duties. It was pointed out in the correspondence sent to the Society by the plaintiff's solicitors on 18 November 2013 that the plaintiff's duties went far beyond those of general administration. The plaintiff was not cross examined about any of those matters, which are generally corroborated by paragraphs (6) and (7) of the affidavit of Mr Toohey. The entirety of Mr Toohey's affidavit was read without objection and he was not cross examined. All of this evidence tends very much against the proposition that the plaintiff did little more than attend to administrative bookkeeping and the preparation of tax returns. 88I have, in this regard, also taken into account the plaintiff's evidence (at T 21 lines 35 to 41) concerning some of the investments made on behalf of the estate. That evidence, in my view, was consistent with the plaintiff having a detailed knowledge of the investments made on behalf of the estate. That detailed knowledge is unlikely to have been acquired by a person whose duties in relation to the estate were limited to those for which the Society contended. On the contrary, it reflected knowledge gained from diligent administration of the estate funds. 89Finally, the allegation of dishonest overcharging was also not directly put to the plaintiff. For the reasons I have already expressed, it should have been. Other considerations 90I have already noted the terms of the undertakings given by the plaintiff. In his affidavit of 2 December 2013 he said, in respect of those undertakings, that: (i)he had not drawn any further costs in respect of the Toohey Estate; (ii)he had one matter in respect of which he considered himself entitled to draw costs upon authorisation from his client but that he would not do so until such time as he written to the first defendant in accordance with this undertaking; (iii)he had, in consultation with his solicitor, prepared a pro-forma of costs disclosure and costs agreement along with a copy of a lump sum disclosure which he had caused to be issued to all of those clients of his practice in respect of whom his previous disclosure did not or may not have complied with the act; (iv)he had forwarded, to the clients affected, any outstanding trust account statements; (v)he had taken steps to enrol in suitable courses in respect of trust accounting and ethics; (vi)he had made arrangements for the assistance of a mentor pursuant to the "Senior Solicitors Scheme" conducted by the first defendant. 91The written submissions on behalf of the plaintiff make it clear that he is prepared to continue those undertakings. In my view it is appropriate that he do so. CONCLUSION 92For the reasons expressed, I am not satisfied that the continued holding of a practicing certificate by the plaintiff presents an unacceptable risk to clients, the public generally, or the administration of justice. I am therefore not satisfied that it is necessary in the public interest that the plaintiff's practicing certificate be suspended. Noting the continuing undertakings of the plaintiff I make the following orders: (i)The decision of the first defendant of 21 November 2013 to suspend the practicing certificate of the plaintiff is set aside. (ii)The decision of the first defendant of 21 November 2013 to appoint a manager to the plaintiff's practice is set aside. (iii)I will hear the parties on the question of costs by the provision of written submissions to my Associate by 3 February 2014. ********** 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: 04 February 2014