Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Dona [2014] NSWCATOD 27 Hearing dates: 29 and 30 October 2013 Decision date: 03 April 2014 Jurisdiction: Occupational Division Before: D Patten, Principal Member S Hale, Senior Member E Hayes, General Member Decision: 1. That any law firm be prohibited (without approval under s17 of the Legal Profession Act) from employing or paying in connection with the law practice engaged in by the firm, Mr Noel Dona. 2. That Mr Dona pay the Council's costs of these proceedings as agreed or assessed. Catchwords: Para legal - conduct warranting order - s18 Legal Profession Act, Legislation Cited: Legal Profession Act 2004. Cases Cited: Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR30; Law Society v Seymour (1999) NSWCA117, Allison v General Council of Medical Education and Registration (1894)1QB750 Whitlam V ASIC (2003) NSWCA183 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Noel Dona (Respondent) Representation: Ms JS Gleeson SC (Applicant) Mr V Gray (Respondent) File Number(s): 132005 reasons for decision 1This is an application by the Council of the Law Society of NSW (the Council) for an order pursuant to s 18 (2) of the Legal Profession Act 2004 (the Act) prohibiting any law practice from employing or paying Noel Dona (Mr Dona) in connection with the legal practice without approval under s 17 of the Act and for costs. 2Sections 17 and 18 of the Act are in the following terms: 17 Associates who are disqualified or convicted persons (3) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be: (a) a disqualified person, or (b) a person who has been convicted of a serious offence, unless the associate is approved by the relevant authority under subsection (3). (4) A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention. (5) The relevant authority to approve a person for the purposes of subsection (1) is: (a) in the case of a disqualified person who is an associate of a barrister-the Bar Council, or (b) in the case of a disqualified person who is an associate of a solicitor-the Law Society Council, or (c) in the case of a person who has been convicted of a serious offence-the Tribunal. (6) If a Council decides to refuse an application by a person for approval under subsection (3) (a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (7) An approval under this section may be subject to specified conditions. (8) A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. Maximum penalty: 100 penalty units. (9) Proceedings for an offence under subsection (6) may only be brought within 6 months after discovery of the offence by the law practice. (10) This section does not apply in circumstances prescribed by the regulations. (11) In this section: lay associate of a law practice has the same meaning as in section 7 (Terms relating to associates and principals of law practices), and includes a consultant to the law practice (however described) who: (a) is not an Australian legal practitioner, and (b) provides legal or related services to the law practice, other than services of a kind prescribed by the regulations. 18 Prohibition on employment of certain lay associates 1. This section applies to a person who is not an Australian legal practitioner and who is or was a lay associate of a law practice that: (a) engages in legal practice principally in this jurisdiction, or (b) employs or employed the person to work principally in this jurisdiction, and so applies whether or not the law practice subsequently ceased to exist or engage in legal practice principally in this jurisdiction and whether or not any person ceases, by death or otherwise, to be a legal practitioner associate of the law practice. 2. On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any law practice from employing or paying in connection with the legal practice engaged in by the law practice a specified person to whom this section applies, if: (a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with that legal practice, or (b) the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct. (3) An order under this section may apply to a specified law practice or specified class of law practices or may apply to law practices generally. (4) An order under this section may be revoked by the Tribunal on application by a Council or the person against whom the order was made. 3In support of her case, Ms Gleeson SC, counsel for the Council, read the affidavits of Anne-Marie Foord 27 March 2013, Cora Groenewegen 14 June 2013, Mark William Tanner 6 May 2013 and Lawson Tanner 24 June 2013. Oral evidence was also given by Mark Tanner and Lawson Taylor both of whom were cross examined by Mr Gray who appeared for Mr Dona. 4The matter had its genesis in a letter dated 16 May 2012 from Hughes and Taylor Solicitors to the Legal Services Commissioner: RE: ESTATE OF THE LATE EDITH MARY BLISS We act for Mr Mark Tanner and Ms Eden Tanner, the joint executors of the Estate of the late Edith Bliss. Mr Tanner was the estranged husband of the deceased and Eden was her eldest daughter. We attach a copy of a loan agreement dated 13 April 2012 between the deceased, a Mr Noel Dona and a company Dgas Investments Pty Limited of which Mr Dona is the sole director and shareholder. Mr Dona is described on the website for Robert Wehbe Partners, Solicitors as the General Manager for that firm. A copy of his profile which was taken from their website is attached. It is clear, we submit, from that profile that Mr Dona has held himself out as having legal qualifications. We also attach a copy of an email sent by Mr Dona to Ms Tanner on 14 May 2012 which refers to him "taking instructions" for a Will from the deceased. Shortly prior to her death, Ms Bliss received a payout pursuant to a Total and Permanent Disablement Policy from an Insurance Company of some $800,000.00. She was interested in investing the majority of the money with Yellow Brick Road. We are instructed that she contacted them and was referred to Mr Noel Dona of Robert Wehbe & Co. It is clear from the attached loan document that Mr Dona witnessed the deceased's signature on that document. There is no provision of independent advice, nor was any mortgage or any other security to be provided which would be normal in these circumstances. We are instructed that Mr Dona was able to gain the confidence of Ms Bliss due to his connection with the legal firm of Robert Wehbe & Partners. Ms Bliss died on 3 May 2012 and was terminally ill at the time of seeing Mr Dona, a fact of which he was well aware. She died less than 3 weeks after the advance was made. We are instructed that she requested the return of the funds shortly after signing the loan document but was told "you don't want to try and do that" by Mr Dona. We have request Mr Dona return the loan funds to the Estate, the beneficiaries of which are Ms Tanner and her three sibling two of whom are minors. The loan monies are by far the greatest asset of the Estate. Our clients have instructed us to make a formal complaint to the Commission on their behalves. 5The loan agreement enclosed with the letter was in these terms: This AGREEMENT dated the 13 day of April 2012 BETWEEN EDITH MARY BLISS 40 The Esplanade Thornleigh NSW 2120 ('the Lender') AND NOEL DONA 85 Isabella Street North Parramatta 2151 ('the Borrower') AND DGAS INVESTMENTS PTY LIMITED CAN 154 404 716 c/- Level 6, 1 Horwood Place Parramatta 2150 ('the Guarantor') WHEREAS A. The Borrower is desirous of borrowing on certain terms the sum of SIX HUNDRED THOUSAND DOLLARS ($600,000.00) (the 'Principal Sum'). B. The Lender has the Principal Sum he wishes to lend to the Borrower on certain terms. IT IS AGREED THAT in consideration of the Lender lending the Borrower the Principal Sum, receipt whereof is hereby acknowledged. 1. The Principal Sum borrowed by the said Borrower is to be lent on the conditions provided: Period: 3 years from date of this Agreement ('Due Date') Interest and Repayment: (a) 12% per annum (b) Repayments of the interest referred to in clause 1(a) are to be made in advance and bi-annually (6 months) from the date of this Agreement. (c) Early repayment will be calculated pro rata on a whole month basis, not part of a month. 2. (i) The Borrower covenants to repay the Principal Sum to the Lender in the manner and the terms appearing hereto. (ii) The Borrower will be entitled to repay to the Lender at any time prior to the Due Date, the Principal Sum, with interest calculated to the date of the end of that month. (iii) The Borrower can request the loan be extended for an additional term of one year and that extension will be granted by the Lender on the same terms contained in this Agreement. 3. The Borrower must, on demand by the Lender, pay to the Lender, and indemnify the Lender against, all costs, losses, charges, expenses, liabilities, damages, fees and disbursements (including all reasonable legal costs on a solicitor and own client basis) paid or incurred by the Lender of or incidental to: i. the negotiation, preparation, execution and (if applicable), stamping and registration of this Agreement; ii. any breach of, or default under, this Agreement by the Borrower (including the fees of all professional consultants properly incurred by the Lender in consequence of or in connection with, any such breach of default); and iii. the exercise or attempted exercise of any right, power, privilege, authority or remedy of the Lender under or by virtue of this Agreement; and 4. The Guarantor covenants and personally guarantees to repay the Principal Sum to the Lender in the manner and on the terms appearing hereto should the Borrower fail to meet its obligations pursuant to this Agreement herein and indemnify the Lender against all losses, damages, liabilities, costs (including legal fees) and expenses of any nature, including sustained or incurred at any time actually or contingently by the Lender. 5. The Borrower and Guarantor hereby authorises the Lender to secure the Principal Sum by the placing of a caveat over any property in which the undersigned Borrower and or Guarantor has an interest and hereby so charges for the benefit of the Lender the said interest. 6. This Agreement is governed by and takes effect and will be constructed in accordance with the laws of New South Wales, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals there from. Executed by Noel Dona in the presence of:Signature of Noel Dona Signature of Witness Executed by DGAS INVESTMENTS PTY LIMITED AGN 154 404 716 in the presence of : Signature of Authorised Representative Signature of Witness Executed by EDITH MARY BLISSby or in the presence of: Signature of Edith Mary Bliss Signature of Witness 6It should be noted that in the first line of recital A the typewritten words "seven" had been replaced by the handwritten word "six" and on the second line ($700000) had been replaced by the handwritten ($6000000). 7It was common ground that the agreement bore the signatures of Mr Dona as borrower and Ms Edith Bliss as lender. It was also common ground that the signatures purporting to witness Mr Dona's signatures were written by him and were not the signatures of any other person present. 8The letter to the Legal Services Commissioner was also accompanied by a copy of "the profile" of Mr Dona taken from the website of Robert Wehbe Partners and an email from Mr Dona to Ms Eden Tanner dated 14 May 2012. Those documents are as follows: Noel Dona: General Manager Phone: (02) 9689 1789, Fax (02) 9633 3379, Email: noel@two.net.au, Office Parramatta. Noel has been in the legal, mortgage finance and real estate industries since 1988. In 1998/99 both Robert and Noel worked together in a law firm specialising in property and mortgage finance. During this period, Noel and his team's proactive service to his clientele, both individual and corporate, established a well earned reputation for delivering results. From 2000, Noel became the legal officer and senior member of a large non bank lender, being responsible for the corporate governance of the company during a 5 year period of exponential growth. To compliment (sic) his legal experience, Noel also holds a real estate licence (since 2003) and is also a licensed auctioneer and strata manager. Noel joins Robert Wehbe & Partners being well respected for his sound work ethic and approach to good business management. From: Noel Nona <noel@rwp.net.au Date: Mon, May 14, 2012 at 9:23 PM Subject: Will of Edith Bliss To: eden.tanner@gmail.com Dear Eden First and foremost, please accept my condolences on your mothers passing. Secondly let me apologise for my unavailability today, however I needed to be in Queensland today on business for an urgent and pressing matter. I have just returned and have come straight to my office to address this matter. I received your SMS on Saturday night and note you state you are your mother's executor. I respond by stating that that may not be the case, however I would like to discuss this with you and especially discuss with you your mother's instructions to me in relation to her final will and testament. I have attached a copy of the instructions I took whilst with your mother and a copy of the draft formal will reflecting these instructions. Your mother's instructions were very simple and uncomplicated. It is unfortunate the will was not executed before your mothers passing, however we must deal with what is before us now. Ideally I need to speak with just you and not your father, as your mother clearly did not want him to be the executor, trustee nor beneficiary. Knowing your mother's instructions, I felt it inappropriate to discuss the matter with your father until I have discussed it with you first. You will note from the attachments that your mother asked me to be her executor. Why? She was uncertain about you, your siblings and other family members. She turned to me almost by default, but she did stress she needed someone responsible and willing to step up. Then after I pressed her for someone close, she nominated you as her reserve executor and trustee. Please feel free to give me a call at your earliest convenience to discuss this matter as I do not want this to be the cause of any unnecessary anxiety. Regards Noel Dona 9An Australian Securities and Investments Commission search as at 14 May 2012 reveals that the Company DGAS Investments Pty Ltd was registered on 22 November 2011, its sole director and secretary is Mr Dona and its capital is 200 shares of $1 each all held by Mr Dona. 10Ms Foord annexed to her affidavit a copy of Ms Bliss' Facebook posting on 16 March 2012 which contained the entry: "Had a meeting yesterday with someone from Yellow Brick Road about managing my money. It felt really positive especially when he offered to email Mark Bouris and pass on my greeting to him" 11Ms Foord also annexed to her affidavit a copy of a cheque butt on Ms Bliss' account with Westpac dated 13 April 2012: Teressa Dona $600000 Interest prepaid deducted Balance $5640000 12Other documents annexed to Ms Foord's affidavit include an email sent by Ms Bliss to her bank on 17 April 2012 and a copy of a draft will prepared by Mr Dona which appoints him executor of the estate and leaves everything to her surviving children. 13Mr Mark William Tanner was the estranged husband of Ms Bliss and is the joint executor of her estate with Eden Bliss their daughter. He said he was married to Ms Bliss on 14 February 1987. She became ill in 2010 and he described her condition thereafter: 5. She was hospitalised and in intensive care for four days. Her condition worsened and she was then intubated for approximately 3 weeks. After the intubation finished, a doctor representing a team of doctors looking after Edith, said to me words to the effect, "We can't do much for her. She is not responding to treatment. There is nothing more we can do and we are looking at palliative care." Within seven days her condition improved, and she was released about two weeks later. She was readmitted after about three days for a further two weeks. 6. Over the next twelve months, Edith was on oxygen to help her breathe full time. This was delivered by a clear nasal breathing tube, hooked up to a machine. She told me that she sometimes became anxious. 14Mr Tanner deposed to the fact that in March 2012 Ms Bliss received from her insurer a total permanent disability benefit of approximately $800000 which was deposited into her Westpac account on 6 March 2012. 15Mr Tanner's affidavit filed in connection with proceeding in the Supreme Court but relied upon by Ms Gleeson in these proceedings contained several other passages relevant to the state of health and mental capacity of Ms Bliss in the period of 2012 immediately before her death: 10. At the time Edith passed away, she and I were separated. I had and still have another partner, but in the last six months of Edith's life I saw her often and regularly visited the house. We discussed important matters such as her treatment at critical times and her financial arrangements when she got her insurance money (although she did not discuss the loan to Mr Dona before she signed the agreement). We still owned our family home together, at 40 The Esplanade, Thornleigh, which is where Edith lived with our two sons, Harry and Lawson. In March or April 2012, Edith bought me a car using her insurance money. In early April 2012, I had suggested that we formalise our separation by seeking a divorce. 11. I visited Edith regularly throughout 2012 until she died. She had difficulties moving around. She could not stand up for lengthy periods, for example, by around March 2012 she cooked sitting on a chair in the kitchen. My observation from visiting Edith was that, in the three weeks before she died, she had a lot of trouble getting from the TV room to the kitchen in her house. 12. Throughout 2012, Edith was admitted to hospital on a number of occasions. She was hospitalised on around 22 March 2012, for over a week. She spent 6 days in intensive care, and two days in the observation room next to intensive care. I visited her at the emergency department at Hornsby Hospital. I saw her on a ventilator called a CPAP machine, which pushed air into her lungs and also pulled air out to lower her carbon dioxide levels. On the third day when she was in intensive care, when she was wearing the CPAP mask and could not talk, she wrote a note to me and my daughters to the effect she had been smoking (until that time, I did not know she had been smoking). 14. After that hospital visit, she was given a portable CPAP machine. She didn't use it because she told me it didn't fit properly and it distressed her. In the first week of April I therefore took her to "ResSleep" in Hornsby (a business specialising in breathing equipment, including for sleeping difficulties). She struggled to make the trip. She became easily tired on the way, and I recall that to walk a block from the car to the premises she needed to stop twice, and then once again in the foyer of the building before we reached the reception area. 15. I saw Edith several times after this hospital visit. She was on oxygen all the time when I saw her. My observation was that she was becoming even more frail, and her health was deteriorating. 16. My observation through talking with her was that she generally remained switched on (in the sense that she knew what she was doing and could understand things that were going on around her), but from time to time she became confused. 16As to the investment by Ms Bliss of her funds Mr Tanner said 18. On one occasion, in early 2012, Edith said to me words to the effect, "I'm going to talk to Yellow Brick Road. I want to invest my money". I said words to the effect, "If you want to, go ahead. I think I'd leave it in the Bank". 19. She spoke about Yellow Brick Road on more than one occasion. When Edith told me she wished to invest, I responded in words to the effect, "You're better to leave it in the Bank" and "I'd leave it in the Bank if I were you". On one occasion when we discussed it, I said words to the effect, "If you want to invest it, talk to Peter Hammon." Mr Hammon worked as a financial planner. He was the person who had set up her insurance in the first place, which gave rise to the money that she had received after being diagnosed with COPD. 22. On around13 April 2012, Edith called me. We had a telephone conversation in words to the following effect: Edith: "Noel Dona came around this afternoon and I gave him a cheque for $564,000. He's gone and banked it and I told him not to. I'm really angry because it's overdrawn the account and Westpac rang me up." Me: "OK, that's not good. What's the agreement?" Edith:"It's 3 years with $12,000 interest? Me: "$12,000 interest? Are you sure?" 23. Edith seemed confused. She said then said words to the effect, "Oh, I don't know, what have I done? I'll call him and ask." 24. About an hour later, Edith called me back. She said words to the effect: "I've spoken to Noel Dona and I've got it wrong. It's 12% interest. He told me it's a good deal." 25. We then had a conversation in words to the effect: Edith: "He is paying me $36, 000 every six months. At the end of three years, he will pay me back the $564, 000." Me:" So, $36, 000 every six months, that's the money you have to live on?" Edith: "Yes." Me: "I'll look at this and see if you can live on that money." 17Lawson Tanner a High School student aged 15 and a very impressive witness described his mother in the period before her death: 3. My mother passed away on 3 May 2012. During 2012, until she died, she was very frail and skinny, and she looked weak. She had scars on her arms and large welts from IV drips. Often she would use an oxygen tank to breathe. She also had a ventilator machine in the house, which she kept in the dining room, and she used this from time to time. 4. Through that time she became more and more frail. She could not walk more than 10 metres without having to hold on to something. She was hunched. She often asked my brother and me to massage her back because she said it was burning. She bought a wheelchair on 17 March 2012, which had a holder for her oxygen tanks. It was also a walker, so that she could use it to support her when she walked around. After that, when she went out, she usually went in a wheelchair but she used it to walk around the house. She generally could not go out on her own, and she did not like going out. She did less and less of the grocery shopping, and I sometimes used to do the grocery shopping for the family. Although she could still drive during some of that time, usually if she needed to go to the doctor a driver from the Catholic Health Care group would take her, or my sister Eden would drive her. 5. Sometimes, especially when she was in hospital, she behaved very strangely and would say incoherent things. She also sent incoherent text messages. For example, I recall that we had a conversation in words to the following effect: Mum: "Donald Trump does NOT fire you." Me (together with my brothers and sisters): "What" Mum: "It's Mark Bouris, you idiot. The man of my dreams." However, normally when she was at home, she was coherent and seemed to understand what she was doing. 6. Until she died, I lived with my mother and my older brother, Harrison (Harry), at our family home in Thornleigh, I now live with Harry and my father, Mark Tanner. 18Lawson Tanner referred to a meeting his mother had in her home with a man we infer was Mr Dona: 15. In April 2013 (after she had returned home from hospital) I was leaving to do some grocery shopping and I saw my mother and a man sitting at the dining table. I heard them talking about my father. The man (whose name I did not know) said words to the effect, "You don't have to leave it there, you're entitled to much more. You could take him to the cleaners." My mother said words to the effect, "I don't think he has that much money." 16. I left the house. When I got home, I was watching TV next to my mother and I saw a contract on the floor. At tab(6) is a copy of the contract that I saw. The date on the documents is 13 April 2013, and I believe this happened on that day. 17. I said, "So it's done?" My mother told me that she was worried about the contract. We said words to the effect: Mum: "I wanted to invest $700,000, but at the last minute I reduced it to $600,000 because I was worried about it. Oh God, I hope this doesn't end badly! Me: Don't worry, it's Yellow Brick Road. They wouldn't rip you off." 19Ms Groenewegen deposed to a conversation with Mr Dona on 15 March 2012. She is a litigation Solicitor in the Professional Standards Department of the Law Society and was appointed by the Council to investigate the complaint about Mr Dona. She had transcribed the notes of their conversation: 4. Noel Nona 15/5/12. " ND Saw my missed call on his mobile & so phoned back. I said I was concerned that he was engaged in legal practice. He said across the industry all paralegals did legal work. I said to engage in legal practice needed a PC under s 14 of Act. 'Respectfully, I disagree.' Said obtaining instructions & doing a will for Edith Bliss was engaging in legal practice. He said taking instructions, getting a trustee to draw up the will etc wasn't. I said she went to RW & Partners. He said he went to her house. She was very ill. A colleague [who he refused to name] said she needed help. I said she needed a lawyer. He said it would have been heartless to refuse her. I said was it the same approach that led him to extend to her the loan - unsecured. He said she wanted certainty for her kids to move forward. I said what certainty was there in the loan to him? Where is the $ now? A. In property development. Q. Is that through your investment vehicle A. In property development Re website: Holding out s 15. ND- doesn't say I'm a lawyer Me-doesn't say I'm a lawyer. Me - doesn't need to. Talks about your legal experience - you don't have any ND -"Respectfully no holding out there" Me-change it or I'll be forced to get an injunction to stop it ND-I can change it now I said he needed to stop holding himself out as a solicitor & stop engaging in legal practice. 20Thereafter Ms Groenewegen had further conversation with Mr Dona and with his employer Mr Wehbe. 21The council's Application makes the allegation that Mr Dona held himself out as a legal practitioner. (a) By using a business card describing himself as "Managing Partner" of a firm of solicitors Providence Legal Pty Ltd. (b) In relation to a real estate company Trinity Reality Pty Ltd of which he was licensee by describing himself on its web site: "Noel has a legal and finance background that compliments (sic) his wealth of real estate experience and business management. 22In his Reply to the Council's Application Mr Dona admitted the underlying facts alleged. In relation to Providence Legal he asserted that he desisted from using the word "partner" as soon as a possible breach of the Legal Profession Act was drawn to his attention. 23Mr Dona swore an affidavit on 14 June 2013 which was read by Mr Gray. His curriculum vitae annexed to it revealed that he was born on 25 December 1965 and that he obtained tertiary qualifications in Strata Management and Real Estate. Between 1988 and 1994 he partially completed a Diploma in Law Course with the Solicitors Admission Board. He also between 1986 and 1994 partially completed a degree in the Faculty of Arts at Sydney University. Although never a Legal Practitioner he has for substantial periods worked in legal offices as a para-legal and in other capacities. From 2008 to 2012 he was employed by Robert Wehbe and Partners (RWP) Solicitors at Parramatta. Since 2012 he has been Managing Director of Providence Legal. 24In relation to the events involving Ms Bliss which are the subject of these proceedings Mr Dona testified: 4. On or about 5 or 6 April 2012 I was in my office at RWP when a telephone call was put through to my telephone. A conversation occurred to the following effect: EB: Good morning. My name is Edith Bliss. I have been referred to your firm by Alan Khoudair of Yellow Brick Road, Parramatta. I want to discuss my family law matters and a new will. I also want to make the most of some money I have. Me: I cannot help you with family law matters. You need to speak to Robert Wehbe. He is the solicitor. He can handle those matters for you. EB: Yes. Mr Wehbe is the person that Alan Khoudair referred me to. EB: Alan Khoudair is a business friend of Mr Wehbe. Alan refers business to Mr Wehbe. EB: I have met Alan and Mr Zoltan Tomanovic. I am seeking a high return on my money I have available to lend. Do you know Zoltan Tomanovic? Me: Yes. I know him very well. I have known him for 15 years. He refers a lot of matters to our firm. He is very intelligent and knowledgeable. EB:I have some money I want to make the most of. I need to provide for my current living expenses and my childrens' futures. Zoltan and Alan discussed with me how I might use my money and that I might lend the money out and that, if I was interested in doing so, I should speak to you. I am prepared to consider lending out my money to get the best deal I can if the option is available. Me: OK. I will contact Zoltan and find out more. 5. On 10 April 2012 I spoke by telephone to Zoltan Tomanovic who said to me words to the effect: ZT: I discussed with Miss Bliss the return on her money she would need to get to achieve her financial objectives. She would need to get 12% pa - which is three times the current average interest rate paid on term deposits at the banks. She is not well. Make it easy for her. Go to her home. 6. On 11 April 2012 I telephoned Miss Bliss and we conversed to the following effect: Me: Good morning." It's Noel Dona here. We spoke a few days ago. I have spoken to Zoltan Tomanovic who has given me details of your financial objectives so I could draw up a simple agreement for you to consider. EB: Good. I would like to read it. Me: I understand I will need to call at your home. When would be a good time? EB: You can come on Friday. Me: I will bring the proposed agreement and we can discuss it then. 7. On 13 April 2013 I attended at Miss Bliss's home at 40 The Esplanade,Thornleigh, 2120 at approximately 2.00pm. Miss Bliss answered the door and invited me into the dining room. I observed that Miss Bliss moved slowly but without any aids. She never at any time used any artificial respiratory device or walking aid in my presence. We sat at the dining table in the dining room. Miss Bliss spoke slowly. I could see by looking at her that Miss Bliss did not appear well but did appear to be in good spirits. I noticed an oxygen tank in the corner of the room. I was present at her home and in her company for approximately 45 minutes. Throughout my visit Miss Bliss seemed friendly, in good spirits and happy. On occasions we laughed. The meeting was harmonious. In the time that I was there many things were said but material parts of the conversation were to the following effect: Me: Do you need to use the tank often? EB: Occasionally. Me: I have a nephew who as a child spent years in hospital - often on an oxygen tank - because of a degenerative lung disorder, but he has defied the odds and is now a healthy young man. EB: My illness will not let me be so lucky and I probably have only a few years to live, but who knows? EB: I am going through a divorce and 1 just want to look after the children. (She started to describe what she might receive from her husband by way of a property settlement.) Me: You might be entitled to more than that. EB: I don't think Mark has much money. Me: If you like I will get Mr Wehbe to talk to you about that and other family law matters? I am here to discuss the loan you mentioned to me. I have prepared a draft loan agreement. Please have a look at this. I then placed a copy of the draft loan agreement before Miss Bliss and waited while she appeared to read it. A copy is attached and marked "C" - though the document I placed before Miss Bliss was in its original printed form with no alterations or handwriting. EB: That's simple enough. Me: Would you like to discuss this agreement with anyone else? EB: No. It's fine. Who is Dgas Investments? Me: It's one of my companies. I am a businessman with multiple hats. I am a para-legal, a real estate agent, a strata manager and I do some property development. I will use any money you lend me with my property development. I do property development either by myself or in joint ventures. I am about to start a new 35-lot sub-division just north of Forster. EB: What other assets do you have? Me: My wife and I own half a dozen properties. I own a real estate agency in Harris Park which my wife runs with my son. EB: What about the rate of interest? Me: Interest will be paid bi-annually in advance. EB:I don't want to lend $700,000 - only $600,000 as I want a little extra to live on. Me: That is no problem. We can simply amend the agreement. I then struck through the figure "$700,000" and wrote by hand "$600,000". Me: Is there anything else in the agreement you would like changed? EB: How about interest at 15%? Me: 12% in advance is a pretty good deal - three times better than the banks will pay. EB: Yes, that's true. Ok I am happy to sign and proceed with the deal. Miss Bliss then executed the loan agreement as lender and I executed it as borrower and as director of DGAS Investments as guarantor. There was no other adult in the house. A child of Miss Bliss, a young teenage boy was in the house but he was not present at any of my conversation with Miss Bliss. Miss Bliss told me "Just scribble a witness in, it will be fine" So I did. EB: I will give you the cheque for $600,000 now. Miss Bliss went to get her cheque book. I saw that she moved unaided but slowly. When she returned the conversation continued to the effect: Me: The cheque should be for $564,000 only as $36,000, which is 6 month's interest paid in advance, is to be deducted from the loan amount. Please make the cheque out to my wife, Teressa Dona. When we were married we closed numerous bank accounts we had between us and kept only an ANZ account - in Teressa's name - and I was made a joint signatory on that account. That's Teressa without an "h". EB: Would you write out the cheque for me in the form you want it. Me: Certainly. Miss Bliss handed me the cheque book. I wrote out the cheque and the cheque butt. Miss Bliss signed the cheque. The conversation then continued in words to the effect: EB: I hope you do well out of your development. Me: Thank you. I should do alright. It will be finished by the end of next year. EB: Now that is done, can you help me with a new will? Me: I did not come for that reason. When you talk to Mr Wehbe about your family law matters he can take care of a new will for you. EB: It will be a simple will. Would you do me a favour and write down what I want now to save me time. I have a will but it needs to be changed as I am not happy with it. I need to make a new will to make sure my ex-husband has nothing to do with being a beneficiary as he now living a separate life. Can you help me with this? Miss Bliss gave instructions for the preparation of a new will. I made a brief file note of what she said a copy of which is hereto annexed and marked "D". Me: Who do you want as your executor? EB: I don't know. Me: Often it is a close family member, like a brother or sister or perhaps your oldest child. For example, I have my younger brother, and my parents have me. EB: Eden is my oldest daughter. She is old enough but I need someone strong willed. Would you be my executor? I want somebody neutral. Me: I am uncomfortable about that as I have just met you EB: Yes, but that's a good thing because you won't get influenced by anyone. Would you do it please? Me: I will only agree if you nominate Eden as the reserve. I will work with Eden to administer your will and I would really only be there to help Eden. EB: That will be good. I will call Mr Wehbe in a couple of weeks to discuss my family law matters and arrange for the will to be finalised if it needs any changes. 8. I left Miss Bliss's property about 2.45pm and returned to Parramatta where I banked the cheque that afternoon. 9. On 16 April 2012 Miss Bliss telephoned me and we conversed to the following effect: EB:I discussed the loan with Mark. He told me that the children and I could not live on the annual interest. Me: You will receive $72,000 in interest each year. Is that enough for you to live on? EB: Yes. That is enough. Mark told me I would receive only $36,000 per year. Me: It is definitely $72,000 - 2 instalments of $36,000. The next payment will be in October. Do you still want to proceed with the loan? EB: Yes. Me: Do you want to reduce the amount of the loan? EB: No. I'm happy to keep it going. I just wanted to check and make sure that Mark was wrong. 25In relation to his thought processes Mr Dona said 13. I never regarded Miss Bliss as a client of RWP for the purpose of seeking advice in relation to lending her money. I understood that Miss Bliss had made up her mind as to what she wanted in that regard before I spoke to her on 5 or 6 April 2012. None the less I am a person who learns by experience. I have learned several things as a result of my experience dealing with Miss Bliss, including: (a) Regardless of what I may consider the person's wishes and intentions at the time, it is inviting criticism and possible problems if I enter into business agreements, especially loan agreements, with anybody whom I have met because of my connection with a law practice unless that person has first received separate advice from an independent lawyer. I now recognise (in a way I did not appreciate before) that whatever I may think about the suitability of the proposed business agreement for the other person, and no matter how much information I give to the other person about the proposed agreement, if I am a party to the agreement I will have my own interest in the terms of the agreement and how it is carried into effect, so that it is impossible for me simultaneously to view the transaction from the position of the other person. Hence I now realise (in a way I did not recognise before) that when I am a party to an agreement I cannot give any other person who is also a party to the agreement any independent advice concerning the agreement and I now similarly recognise that without that other person having received independent advice I am (at the least) exposing myself to criticism for entering into a business agreement with the person in those circumstances. I also recognise that if any liability should attach to me from entering into the agreement then that liability will almost certainly be a liability of the legal practice. (b) Even if I am asked to do it at the request of the other person, I must not allow important documents such as legal agreements to give a false or misleading impression and I appreciate that that is what I did when I scribbled what appears on the loan agreement to be a signature of a witness (other than me) to Miss Bliss's signature when in truth there was no such third person witness. I am determined to benefit from this experience and am resolved not to repeat in the future the misjudgements I have made in the Miss Bliss matter. 26In relation to the Providence Legal and Trinity Realty allegations we should say at once that we are not persuaded that the material complained of leads to a conclusion that Mr Dona was holding himself out as a Legal practitioner. 27However we take a different view of the RWP website. Although it is perhaps a matter of impression it seems to us that the phrases: Robert and Noel worked together in a law firm. "Noel became the legal officer and senior member of a large ............... lender..." "to compliment (sic) his legal experience..." and "Noel joins Rebert Wehbe and partners" Particularly when taken together do indicate to members of the public and indeed to members of the legal profession itself that Mr Dona was holding himself out as a legal practitioner contrary to S 15 of the Legal profession Act. 28As to the transaction concerning Ms Bliss it is first necessary to consider the role Mr Dona performed when he attended upon her. Mr Gray sought to distinguish his position on the one hand as merely handing her a loan agreement to sign pursuant to arrangements previously made by her with others and his position as a para legal with RWP. We reject the suggestion of any such dichotomy Mr Dona went to Ms Bliss' home in response to a telephone call made by her to RWP and put through to him. He took to the meeting a loan agreement which he had prepared naming himself as borrower of a significant sum of money and naming a guarantor of no apparent financial substance. Moreover he reinforced his status by taking instructions for a will and making a comment about the matrimonial entitlement of Ms Bliss then separated from her husband. 29Although we sadly cannot have Ms Bliss' version of her meeting with Mr Dona we think it probable in the circumstances that she believed him to be present in his capacity as a para legal with RWP and was unlikely to have separated in her mind the fact that he was also seeking to borrow money from her. But even if she did Mr Dona's conduct would have fallen within the terms of s18 (2) (b) of the act. 30The loan transaction if it had involved a solicitor would have constituted a breach of rule 12 of the Solicitors Rules "Practitioner and Client Borrowing Transactions'. The initial conversation between Ms Bliss and Mr Dona, on his version of it, in our opinion established Ms Bliss as a client of RWP. If a principal of the firm upon Ms Bliss' becoming a client had borrowed money from her in breach of the rule this was capable of amounting to professional misconduct or unsatisfactory professional conduct by virtue of s498 of the act. But even in the absence of the rule we would regard the solicitor as guilty of professional misconduct within the formulation of Allison v General Council of Medical Education and Registration (1894) 1QB750 namely conduct which would be reasonably regarded as disgraceful or dishonourable by his profession brethren of good repute and competency. We think that the borrowing by a solicitor of a large sum money without adequate security from a woman who as we are satisfied, was obviously ill and who had no independent advice would be regarded as disgraceful and dishonourable by that Solicitor's peers of good repute. 31Mr Gray drew our attention to the fact that the only sanction contemplated by S18 is exclusion from employment as contrasted to the lesser sanctions applicable to solicitors guilty of professional misconduct as contained in s562. In that circumstance he submitted that a high degree of misconduct was required to justify an order under S18. He referred to Ex parte Meehan; Re Medical Practitioners Act [1965] NSW R30 AT 34 per Sugerman, Walsh and Wallace, JJ. As to the application of these observations in a case arising under the Medical Practitioners Act 1938, of this State, it must be noted that that Act provides for alternatives to removal from the register, namely, suspension for not more that 12 months, reprimand, and caution (s.29 (1), so that infamous conduct in a professional respect need not necessarily be of the extreme heinousness to which Lord Jenkins referred. Moreover, the Act embodies a recognition that conduct may be infamous conduct, in a professional respect and yet be such "that it does not, in the public interest, disqualify the person from practising his profession" (s.29 (2), in which event the tribunal is not to make an order suspending that person from practice or directing that his name be removed from the register. 32Mr Gray also referred to The Law Society v Seymour [1999] NSWACA 117. However Seymour can be distinguished from this case in that in Seymour the issue was whether Mr Seymour breached an order restraining him "acting or purporting to act" as a solicitor. In this case, it is not suggested that Mr Dona acted or purported to act as a Solicitor. Moreover we agree with Mr Gray's submission that there is no evidence that anyone regarded Mr Dona as a Solicitor. 33In the absence of direct evidence from Ms Bliss , Mr Gray correctly submitted that all conclusions must be based on inferences and he pointed to the danger of drawing inferences based upon incomplete evidence referring to observations made by the Court of Appeal in Whitlam v ASIC [2003] NSWCA 183 at para 116 and following. In the context of this submission he referred to the absence of evidence from Mr Zoltan Tomanovic who, we accept, had conversations with Ms Bliss regarding a loan prior to her contact with Mr Dona. 34In his submissions Mr Gray conceded that Mr Dona may have committed an error of judgment and have failed to meet standards which would have applied to a solicitor but submitted that the error was not such as to require an order of the gravity provided for by s18. 35We accept Mr Gray's submission that only very serious misconduct warrants an order under s18 because of its impact upon Mr Dona's right to earn a living. However as Ms Gleeson pointed out the apparent harshness of such an order is reduced by the entitlement to apply for approval under s17. 36There would in our view be more to be said for Mr Gray's submissions if it were the fact that Mr Dona had no personal interest in the loan made by Ms Bliss. In that case we would have expected Mr Tomanovic to give evidence in light of which we may have been persuaded to take a different view from the one we feel obliged to take. 37However in this case Mr Dona was very personally interested in the making of what on its face was an extremely imprudent loan notwithstanding the high rate of interest offered. Rather than lending to the transaction his imprimatur as an employee of a firm of solicitors should at least have insisted that independent advice be obtained. His obligation was heightened by the obvious ill health and consequent vulnerability of Ms Bliss. 38In our view what occurred was much more than an error of judgment by Mr Dona, it was an egregious breach of a basic obligation of those engaged in the practice of law not to allow their own interests to conflict with those of their clients. 39Not only are we satisfied for the above reasons that Mr Dona's conduct falls within paragraphs (a) and (b) of ss (2) of S18 of the Act but we are also satisfied that an order should be made as provided by the section. 40We make the following orders: (1)That any law firm be prohibited (without approval under s17 of the Legal Profession Act) from employing or paying in connection with the law practice engaged in by the firm, Mr Noel Dona. (2)That Mr Dona pay the Council's costs of these proceedings as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 03 April 2014