Legal Services Commission v Anderson [2015] NSWCATOD 56

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commission v Anderson [2015] NSWCATOD 56 Hearing dates: 19 March 2015 Decision date: 05 June 2015 Jurisdiction: Occupational Division Before: D Patten, Principal Member R Dawson, Senior Member J Schwager, General Member Click here to enter text. Decision: That the Solicitor is guilty of professional misconduct. That the Solicitor be reprimanded. That the Solicitor pay a fine of $10,000. That the Solicitor pay the costs of the Legal Services Commissioner as agreed upon or assessed. Catchwords: Misconduct unrelated to legal practice.Click here to enter text. Legislation Cited: Legal Profession Act 2004 Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Click here to enter text. Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Denis Manning Anderson (Respondent)Click here to enter text. Representation: Counsel: D Raphael (Respondent) Solicitors: A Matalani (Applicant) File Number(s): 1420249

Reasons for decision 1. The Legal Services Commissioner (LSC) seeks a finding of professional misconduct against Denis Manning Anderson (the solicitor) and consequential orders. 2. The proceedings follow a complaint by Mr Mark Anderson (no relation to the solicitor), Manager of the Melbourne Cricket Club, that the solicitor in effect, by deception, assumed the identity of a deceased member of the club and thereby took benefits of membership to which he was not entitled. 3. The facts which are not significantly in dispute may be shortly stated. 4. At relevant times the solicitor practised on his own account at Kogarah NSW. His client, Michael Alfred Starkey, was a member of the Melbourne Cricket Club. The rules of the club include "[m]embership cards are not transferrable and may not be used other than by the Member to whom they are issued" (rule 5.1 (d)), "[t]he rights of each Member are personal to that Member and are unable to be transferred to another person" (rule 5.4) and "[a] Member will be deemed to resign from the Club if the Member dies (rule 9.1(c)). 5. On or about 12 September 1997 (not 28 June 2004 as stated in the solicitor's "Answer" filed in these proceedings) Mr Starkey died. There is no evidence as to what transpired in the period between Mr Starkey's death and June 2004 except the partly self-serving statements made in the solicitor's letter to the LSC dated 14 November 2013: The late Mr Michael Alfred Starkey, and his wife Mrs. Denise Starkey, were friends of mine for over thirty (30) years, and also clients of my legal practice. I confirm that I acted as the solicitor for the Estate of Mr. Starkey. I remained in contact with Mrs. Starkey following the death of her husband in 1997 who was then aged 58 years and not eligible to have a Seniors Card. In early 2000s Mrs Starkey approached me to advise that her late husband had expressed a wish to her that upon his passing he wanted me to have the benefit of his membership to the MCC. Mrs Starkey informed me that she had paid the annual fees to the MCC since her husband's death and could not afford to do so in the future. As she was not interested in travelling to Melbourne she told me I could have her late husband's "ticket" provided that I paid the annual fees. I was not aware that the rules of the MCC provided that upon death of a member, the membership rights ceased. I had understood that the deceased was able to assign/gift his ticket. However, in late May 2004 I received a communication dated 24th May 2004 from the MCC ("the communication") advising of a procedure concerning membership cards. Relevantly, the new changes involved the provision of a photograph to be endorsed on the card, so as to confirm the identity of the ticketholder. At the time of receipt of the communication I spoke with Mr. Andrew McNeil who was a qualified electrician and had become a friend of mine. … I showed Mr. McNeil the communication. It was initially my intention not to respond to the it [sic] and to allow the membership to lapse. Mr McNeil suggested to me that he could take my photograph with his camera as I did not have one and he would certify it to enable me to retain the membership. Mr McNeil, subsequently took my photograph and provided the certification. Mr McNeil asked me for my Senior's Card and inserted Mr Starkey's name in place of mine. Also he obtained a copy of Mr Starkey's birth certificate which was in the file in my office archives. 1. Following the admissions made we are satisfied and find that in or about June 2004 the solicitor, with intention to deceive the Melbourne Cricket Club, falsely pretended to the Club that Mr Starkey was alive. The solicitor supported that pretence by providing the Club with a photograph of himself purporting it to be the photograph of Mr Starkey and a forged signature purporting to be the signature of Mr Starkey. 2. The solicitor admitted in the letter referred to that, following his deceptive conduct, he used the membership card issued in Mr Starkey's name to attend at the Melbourne Cricket Ground each Australian Football League Grand Final from 2004 to 2012 and attempted to use such membership card to gain access to the ground on the occasion of the 2013 Grand Final on 28 September that year. 3. As appears from the affidavit of Mr Mark Anderson affirmed 20 January 2015, in July 2013 the Club was alerted to the possibility that the membership card issued in the name of Mr Starkey was being used by the solicitor. As a consequence he "embargoed the bar code on the membership card". He then related what occurred on 28 September 2013: 8. On 28 September 2013, Grand Final Day, Mr Anderson attempted to scan the membership card at the turnstiles at about 8.15am. The card was rejected and Mr Anderson was ushered into our membership services office. I then had a conversation in words to the following effect with Mr Anderson: ME: Hi Mr Starkey. We seem to have a problem with your card. Do you have any other form of identification on you? DA: No, the membership card is all I have with me. ME: Could you please advise me of your date of birth? DA: [provided me with a date which I cannot now remember but it was neither the day, month or year of Mr Starkey's date of birth] ME: What is your address? DA: PO Box 362 Sylvania Southgate ME: What is your residential address? DA: I'm not sure. ME: Are you Mr Starkey? DA: Yes. ME: I'm not sure that you are given that you can't provide the correct date of birth and a residential address. DA: [did not reply but shrugged his shoulders] ME: You're not Mr Starkey are you? DA: No, just give me my card back and I'll go. ME: You're Mr Denis Anderson aren't you? DA: No I'm not. 9. I then retained the membership card and escorted Mr Anderson from the venue. 1. At the hearing before us the solicitor, through his counsel Mr D Raphael, challenged in cross-examination the accuracy of the conversation of 28 September 2013 as related by Mr Mark Anderson. He nonetheless maintained his version and said that his affidavit had been prepared from notes he made at the time of the conversation. 2. The solicitor who gave evidence at the hearing testified that he remained mute throughout Mr Anderson's questions and did not make the admissions attributed to him. 3. The solicitor's conversation on 28 September 2013 with Mr Mark Anderson has been a live issue in this case at least since service of the application upon him. Particular 1.7 asserts: When confronted at the turnstiles at the Melbourne Cricket Club on Grand Final Day on Saturday 28 September 2013 at approximately 8:15am the Respondent attempted to mislead a MCC official as to his identity and his date of birth. 1. In his Answer filed 5 December 2014, the solicitor formally admitted some matters but denied paragraph 1.5. in relation to paragraph 1.7 he said: 8. The Respondent does not admit the assertion contained in particular 1.7 1. Mr Mark Anderson's affidavit of 20 January 2015 was served on or about 29 January some weeks before the hearing yet the solicitor, in that period, did not see fit to put on oath or affirmation his version of an important conversation related in some detail. Instead he instructed his counsel to cross-examine Mr Anderson as to his credit and the absence of his notes. The right to issue a summons for the production of such notes had, of course, always been available to the solicitor. 2. In the circumstances we have related, in our view, the version of the conversation given by Mr Mark Anderson should be accepted. The solicitor, we find, compounded his previous deception by attempting to mislead Mr Anderson in that conversation. 3. The solicitor through his counsel conceded professional misconduct. We are satisfied that the solicitor's conduct in June 2004 leading to the issue of a Membership Card in the late Mr Starkey's name with the solicitor's photograph and a forged signature, his impersonation of Mr Starkey on 12 subsequent occasions in order to gain entrance to the Melbourne Cricket Ground and his attempt to deceive Mr Anderson on 28 September 2013 constituted disgraceful and dishonourable conduct and would have been regarded as such by his peers of competence and repute (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 ). We find the solicitor guilty of professional misconduct. 4. Before deciding upon the orders which should be made following a finding of professional misconduct a number of subjective matters need to be considered: The solicitor was born on 30 November 1935 and admitted to practice on 29 July 1960. After some employment in the public service and overseas travel, he commenced practice on his own account at Kogarah in 1964. He remained in that practice until he retired due to ill health earlier this year. His professional career was unblemished. 5. We received into evidence a reference in support of the solicitor provided on 14 October 2014 by Mr Robert Greenhill of Senior Counsel. Mr Greenhill said that he had known the solicitor for more than forty years both professionally and as a friend. His reference contained these paragraphs: During my lengthy personal and professional relationship with Denis I have never known him to be dishonest. I know many people who know him professionally and personally and none have ever expressed any adverse comments about his honesty to me. I have never experienced any failure by Denis to pay my professional fees for any matter in which he has briefed me. Some time ago I recommended that a very dear friend of mine seek legal advice from Denis in a professional capacity. I know the client was quite satisfied with the help that Denis gave him. My friend told me that he needed to see Denis about another matter and I told my friend that Denis was no longer practising law. He was disappointed. I am aware of the nature of the allegations which have been made against Denis in relation to his wrongful possession of evidence of membership of the Melbourne Cricket Ground. I was shocked by the news. Quite co-incidentally he recently came to my chambers with a mutual friend. Denis openly told me about what he had done in relation to the matter. He was quite distraught about the matter. He told me that he had not renewed his practising certificate as a Solicitor and that he had to appear before the Legal Services Tribunal in relation to the matter. He appeared genuinely contrite when relating to me his version of events. 1. We also received into evidence a reference from Mr Robert Walker who practised at the Bar for over 30 years and had known the solicitor for at least 25 years. His reference included: As a solicitor in Kogarah, Denis Anderson briefed me regularly over the years that I knew him. He used to brief me in both commercial and criminal matters. Naturally we built up a personal relationship over the years and often used to lunch together during cases, and often at other times with mutual friends. I have never known Mr. Anderson to be dishonest or hold other than the highest ethical standards. I have never known other lawyers or clients to have been critical of Mr. Anderson's ethics or honesty. I have spoken to Mr. Anderson at depth about this matter and accompanied him when the matter was originally mentioned at the tribunal. From what I know of Mr. Anderson, although he clearly did the wrong thing he sincerely regrets his actions. 1. The solicitor deposed to the circumstance that he is in ill health and believes that he has not many years left to him. He no longer holds a practicing certificate and undertook not to apply for one. 2. Section 562 of the Legal Profession Act makes it plain that a finding of professional misconduct does not necessarily lead to an order for removal from the roll. Such an order should not ordinarily be made unless the solicitor is found to be presently unfit to practice. A range of other orders is available to the Tribunal and, although evidence of contrition and insight is slight, in all the circumstances of this case we think that our responsibility to protect the community would be satisfied by the imposition of a lesser penalty. In saying this we do not intend to diminish the seriousness of the misconduct proved which was much more than a single isolated incident. It amounted to deception practised over a long period which seemingly, if not detected, would have continued over an even longer period. 3. For the reasons given, we think that a reprimand and fine would be an appropriate sanction and operate as a sufficient deterrent to other legal practitioners tempted to depart from the high standards of personal probity rightly demanded of legal practitioners. 4. We make the following finding and orders: 1. That the Solicitor is guilty of professional misconduct. 2. That the Solicitor be reprimanded. 3. That the Solicitor pay a fine of $10,000. 4. That the Solicitor pay the costs of the Legal Services Commissioner as agreed upon 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: 05 June 2015