Council of the Law Society of New South Wales v Fulham [2015] NSWCATOD 101

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Fulham [2015] NSWCATOD 101 Hearing dates: 15 June 2015 Decision date: 25 September 2015 Jurisdiction: Occupational Division Before: S Hale Senior Member J Pheils Senior Member E Hayes General Member Decision: 1. Finding of Professional Misconduct 2. Orders : (i) that Matthew John Fulham is guilty of professional misconduct (ii) that the name of Matthew John Fulham be removed from the local roll (iii) that Matthew John Fulham pay the costs of the Council of the Law Society of New South Wales as agreed or assessed. Catchwords: Professional misconduct – misappropriation of trust funds – fitness to practise Legislation Cited: Legal Profession Act 2004 Cases Cited: Council of the Law Society of New South Wales Bar Association v Butland [2009] NSWADT 177 The Law Society of New South Wales v Jones Unreported NSW CA 333 of 1977 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Matthew John Fulham (Respondent) Representation: Solicitor: L Pierrotti (Applicant) Eakin McCaffrey Cox (Respondent) L Muston (Office of Legal Services Commissioner) File Number(s): 1420332 Publication restriction: NIL

REASONS FOR DECISIOn 1. By application filed on 4 November 2014 the Council of the Law Society of New South Wales ("the Council") seeks a finding of professional misconduct and consequential orders against Matthew John Fulham ("the solicitor"). 2. In support of its application the Council relied on two grounds namely: 1. That the solicitor had misappropriated trust funds; and 2. That the solicitor had misappropriated money belonging to the law practice of Dignan & Hanrahan. 1. The solicitor admitted each of the grounds and the particulars furnished in support of those grounds. He expressly did not contest the orders sought by the Council namely, the removal of his name from the role and costs and signed an Instrument of Consent made under s564 of the Legal Profession Act 2004 ("the Act") to which was attached an Agreed Statement of Facts such instrument being filed in the Tribunal on 4 March 2015. The Instrument was executed by the Council, the Legal Services Commissioner and by the solicitor. 2. On 15 June 2015 the Tribunal heard this matter. Mr Pierrotti appeared for the Council, Ms Muston appeared for the Legal Services Commissioner who became a party to the proceedings pursuant to Section 559(5) of the Act. Ms Shaw, solicitor of Eakin McCaffrey Cox appeared for the respondent who was present with his solicitor. 3. It was noted that all parties to the Instrument consented to the Tribunal making a finding that the conduct of the solicitor, as particularised in the Agreed Statement of Facts, amounted to Professional Misconduct. Mr Pierrotti formally requested the Tribunal to make orders in terms of the Instrument of Consent. Ms Muston supported Mr Pierrotti's request as did Ms Shaw on behalf of the solicitor. 4. At the conclusion of the hearing, the Tribunal made the orders set out in the final paragraph of these Reasons for Decision but indicated that it would publish its Reasons at a later date and that the orders made on 15 June 2015 should not operate until the publication of those orders. These are those Reasons. 5. At the outset of the hearing, the Tribunal indicated to the parties, in accordance with the discretion given to the Tribunal under s564(10) of the Act when deciding whether to make orders pursuant to the Instrument of Consent, it wished to conduct the hearing in the usual manner before reaching its conclusion. In taking this approach, the Tribunal was assisted by the comments of the Tribunal in Council of the Law Society of New South Bar Association v Butland [2009] NSWADT 177 at paragraphs 29 to 31, 33 and 35 as to the matters to be taken into account in deciding whether to make the Orders referred to in the Instrument of Consent. 6. The evidence placed before the Tribunal in support of the Council's application consisted of an Affidavit by A-M Foord sworn 20 October 2014 together with an Affidavit by J E Mitchell sworn 14 August 2014. No objection was taken by the solicitor to the material contained within those two Affidavits.