Legal Services Commissioner v Kelly [2014] NSWCATOD 140

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Kelly [2014] NSWCATOD 140 Hearing dates: 3 July 2014 Decision date: 03 July 2014 Jurisdiction: Occupational Division Before: S Hale, Senior Member Decision: 1.By consent the Respondent is guilty of professional misconduct in relation to Grounds 1, 2, 3 and 4 2. By consent the Respondent's name be removed from the roll of local lawyers 3. By consent the Respondent is to pay the Applicant's costs of the proceedings as agreed or assessed Catchwords: Professional misconduct - false and misleading conduct - engaging in deceptive activity - failure of fiscal obligations - making false statements to police, the court and psychologist Legislation Cited: The Legal Profession Act 2004 (NSW) Cases Cited: Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) File Number(s): 132001

reasons for decision 1On 3 July 2014 the Tribunal heard this matter. At the conclusion of the hearing, the Tribunal made the Orders set out in the final paragraph of these Reasons for Decision. The Tribunal indicated that it would publish its Reasons at a later date and that the Orders made on 4 July 2014 would not operate until the publication of those Reasons. These are those Reasons. 2On 12 February 2013 the Legal Services Commissioner ("the Applicant") filed an Application alleging that Tonette Marie Kelly ("the Respondent") was guilty of professional misconduct and sought an Order that the Respondent's name be removed from the roll of local lawyers and that the Respondent pay the Applicant's costs of the proceedings as agreed or assessed. 3On 12 February 2013 the Applicant also filed an Affidavit in support of the Application sworn by Steven Anthony Mark on 11 February 2013. 4At the hearing before us Ms L Muston represented the Applicant and requested us to make Orders in terms of those contained in an Instrument of Consent. She tendered unopposed the Affidavit sworn by Mr Mark and the Instrument of Consent. The Respondent was not present at the hearing and the Tribunal made enquiries of Ms Muston whether she was expected to appear. Ms Muston advised that there had been no recent communication with the solicitor and that she was currently under home detention as a result of an ICAC prosecution. The Tribunal directed the matter to be called in the public areas of the Tribunal but there was no appearance by the Respondent. 5The Tribunal file showed that when the matter was last before the Tribunal for directions the Respondent appeared by telephone when directions were given for her to file any Affidavit material upon which she wished to rely. No further material was filed by the Respondent. The Tribunal notes that the file showed the Respondent as having signed the Instrument of Consent the subject of this hearing prior to the last mention date referred to in this paragraph. The Tribunal having satisfied itself that procedural fairness had been afforded to the Respondent, the proceedings continued. 6Ms Muston formally moved on the Application for Original Decision together with the Instrument of Consent under s564 of the Legal Professional Act 2004, that document having been filed on 29 April 2014. The Affidavit of Mr Mark was tendered and read. The Instrument of Consent was executed by the Commissioner, its Solicitor, Ms L. Muston and by the Respondent, Tonette Marie Kelly. The Instrument of Consent stated that the signatories to it gave their consent to the Tribunal (a) making a finding that the conduct of the Respondent described in Grounds 1 to 4 and particularised in the Instrument of Consent amounted to professional misconduct and (b) the following orders by consent: (1)The Respondent is guilty of professional misconduct in relation to Grounds 1, 2, 3 and 4. (2)The Respondent's name be removed from the roll of local lawyers. (3)The Respondent is to pay the Applicant's costs of the proceedings as agreed or assessed.