Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Gates [2016] NSWCATOD 35 Hearing dates: 14 September 2015 Date of orders: 30 March 2016 Decision date: 30 March 2016 Jurisdiction: Occupational Division Before: S Hale, Senior Member J Wakefield, Senior Member M Bolt, General Member Decision: 1. The Solicitor is guilty of professional misconduct 2. The Solicitor be reprimanded 3. The Solicitor, at her own expense, is to undertake within 9 months of the date of these orders, a course in Legal Ethics and a course in Practice Management that is approved by the Manager of Professional Standards Department of the Law Society of New South Wales and achieve a mark of not less than 50%. 4. The Solicitor pays the costs of and incidental to the proceedings Catchwords: Legal profession – disciplinary proceedings – professional misconduct outside practice as solicitor – misleading employer as to destination of superannuation funds – dishonesty for solicitor's personal benefit Legislation Cited: Civil & Administrative Tribunal Act 2013 Legal Profession Act 2004 Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law Application Legislation Amendment Act 2015 Interpretation of Legislation Act 1994 (Vic) NSW Interpretation Act Legal Profession Act 1987 Cases Cited: Allinson v Council of Medical Education and Registration (1894) 1 QB 750 Council of the Law Society NSW v Bouzanis [2006] NSWADT 55 Council of the Law Society NSW v Dalla [2011] Council of the Law Society NSW v Delpopolo ]2014] NSWCATOD 55 Council of the Law Society NSW v Gillroy [2013] NSWADT 87 Council of the Law Society NSW v John Alexander Xenos [2012] NSWADT 283 Council of the Law Society NSW v Kingston [2014] NSWCATOD 21 Council of the Law Society NSW v Koffel [2010] NSWADT 149 Council of the Law Society NSW v Nicholls [2012] NSWADT 222 Council of the Law Society NSW v Nicopoulos [2011] NSWADT 84 Council of the Law Society NSW v Pizzinga [2012] NSWADT 211 Council of the Law Society NSW v. Ross [NSWADT 106 Council of the Law Society NSW v. Scanlan [2015] NSWCATOD 44 Council of the Law Society of NSW v. Vosnakis [2007] NSWADT 42 Council of the Law society v. Somerfield [2008] NSWADT 235 Council of the New South Wales Bar Association v. Costigan [2013] NSWCA 407 Council of the NSW Bar Association v. Sahade [2007] NSWCA 145 Dupal v Law Society of NSw [1990] NSWCA 161 Ex parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR (NSW) In re A Solicitor, Ex parte The Law Society [1912] 1 KB 302 Jackson (previously known as Subramaniam) v. Legal Practitioners Admission Board [2006] NSWSC 1338 Kumar v Legal Services Commissioner [2015] NSWCA 161 Law Society of New South Wales v. Jayawardena [2008] NSWADT 187 Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1 Melbourne v The Queen (1999) 198 CLR 1 Myers v Elman [1940] AC 282 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284) New South Wales Bar Association v Osei (No. 2) [2008] NSWADT 324 Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203D-e, 207B-C) Prothonotary of the Supreme Court of New South Wales v. Livanes [2012] NSWCA 325 Prothonotary of the Supreme Court of New South Wales v. Da Rocha [2013] NSWCA 151 Re Hodgekiss (1962) SR (NSW) 340 at 351 Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19 at 24-25 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Rebekah Joan Gates (Respondent) Representation: Ms C Groenewegen (Applicant) Mr G Walsh (Respondent) File Number(s): 1520084 Publication restriction: NIL reasons FOR DECISION 1. The facts of this case are novel. The respondent Solicitor misled her employer as to the destination of her superannuation funds. 2. By Application filed on 30 April 2015 the Law Society of New South Wales ('the Council') sought a finding of professional misconduct against Rebekah Joan Gates ('the Solicitor') including an order that the Solicitor's name be removed from the roll of local lawyers. 3. At the hearing of the proceedings on 14 September, 2015 the Council sought different Orders namely: 1. That the solicitor be reprimanded; 2. That the solicitor, at her own expense, undertake within 9 months, a course in Legal Ethics and a course in Practice Management that is approved by the Manager of Professional Standards Department of the Law Society of New South Wales and achieve a mark of not less than 50%; 3. That the solicitor pay the costs of and incidental to the proceedings; 4. Such other order as to the Tribunal seems fit. 1. An Agreed Statement of Facts was tendered at the outset of the hearing which is reproduced below: Jurisdiction – Repeal of the Legal Profession Act 2004 1. The Legal Profession Act 2004 was repealed as from l July 2015 by s 167(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act) and replaced by the Legal Profession Uniform Law (NSW) (the Uniform Law). 2. Schedule 2 of the Legal Profession Uniform Law Application Legislation Amendment Act 2015 (Uniform Law Amendment Act) made a range of consequential amendments as from 1 July 2015, including to the Civil and Administrative Tribunal Act 2013 (NCAT Act) reflecting the commencement of the Uniform Law from l July 2015. 3. These proceedings were commenced by Application filed on 30 April 2015 prior to the repeal of the LPA 2004. The complaint had been made under Chapter 4 of the LPA Act. The Tribunal's jurisdiction 1. Savings and transitional provisions are contained in both Schedule 4 of the Uniform Law and Schedule 9 of the Application Act 2014 by which the Uniform law was introduced as part of the law of New South Wales. 2. The question arises whether the relevant provisions of the now repealed LPA Act govern the disposition of the matter before us. This aspect was considered in detail in the Tribunal's decision in Council of New South Wales Bar Association v Breeze [2015] NSWCATOD 152 at paragraphs 41 to 49 which are reproduced below: 41 Before we proceed to make the consent findings and orders sought, briefly, we set out our reasons for concluding that the pertinent provisions of the now repealed 2004 LPA govern the disposition of these matters. The parties do not contend otherwise. In this regard, we were greatly assisted by submissions from Senior Counsel for Ms Graves. 42 The proceedings in each of these matters were commenced in October 2014, at which time the 2004 LPA was in force. The complaints the subject of the proceedings were made under Chapter 4 of that Act. 43 With effect from 1 July 2015, the 2004 LPA was repealed and replaced by the Legal Profession Uniform Law (NSW) (the Uniform Law). Savings and transitional provisions are contained in both Schedule 4 of the Uniform Law and Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act 2014), by which the Uniform Law was introduced as part of the law of New South Wales. 44 Clause 26 of Schedule 4 of the Uniform Law addresses the present situation reasonably precisely. It provides in part as follows: Division 7 Dispute resolution and professional discipline 26 Current complaints and investigations (1) This clause applies to— (a) a complaint made under old Chapter 4 but not disposed of before the commencement day; or (b) an investigation referred to in old Chapter 4 that had begun but had not been completed before the commencement day. (2) On and after the commencement day— (a) the complaint or investigation is to continue to be dealt with in accordance with the provisions of the old legislation; and (b) for that purpose, the complaint or investigation is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the current entity). (3) Subclause (2)(b) does not apply if a local regulation or other legislation of this jurisdiction directs that another entity referred to in this Law (the substituted entity) is to deal with the complaint or investigation instead of the current entity. 45 The definitions of "commencement date", "Chapter 4" and "old legislation" in Clause 1 of Schedule 4 make it clear that on and after 1 July 2015 these proceedings are to continue to be dealt with in accordance with the provisions the 2004 LPA. 46 In view of the specific coverage of the issue in Clause 26, the general savings provisions in clause 2(2) of Schedule 4 and Clause 3(3) of Schedule 9 of the Application Act do not apply. Each is, in effect, expressly subjugated to other more specific provisions: see clause 2(6) of Schedule 4 of the Uniform Law and clause 3(1) of Schedule 9 of the Application Act. On their face, these general savings provisions, otherwise appear to mean that the new Uniform Law would govern the situation. 47 Further, in our opinion, because specific provisions have been made for savings and transitional issues in the Uniform Law and the Application Act, the sections dealing with the effect of repeal of an Act in the relevant Interpretation Act do not apply, assuming that they otherwise did, as to which we express no opinion; see, for example, Adco Constructions Pty Ltd v Goudappel (2004) CLR 1; see plurality at [27]-[29] and Gageler J at [52]. That is because of the principle that a specific provision will take precedence over a general provision, and because of the term in the relevant Interpretation legislation providing that the legislation applies except in so far as a contrary intention appears in the other legislation. 48 Probably, if they had been applicable, the effect of the pertinent provisions of the relevant Interpretation Act would be that these proceedings brought under the 2004 LPA remained unaffected by the repeal of that Act and the Tribunal continued to have the powers of determination set out in s 562 of the 2004 LPA. However, in view of our conclusion that the savings and transitional provisions take precedence, it is unnecessary for us to express a final view on this point. 49 For the same reason, it is also unnecessary that we resolve the question as to which Interpretation Act is applicable. It is possible that it is the Victorian Interpretation of Legislation Act (1984) that applies for present purposes. This possibility arises because it is the new Victorian legislation concerning the legal profession that is made a law of New South Wales by the Application Act (s 4(a)) and the New South Wales Interpretation Act 1987 (NSW) is expressly excluded from applying to the Uniform Law; s 5(1)(a). However, it is the Application Act (a law of New South Wales) that repealed the 2004 LPA (by s 167, now itself repealed because its operation is spent) and the Interpretation Act 1987 (NSW) applies to that Act: s 5(2)(a). In any event, similar provisions exist in both the New South Wales and Victorian legislation concerning the effect of repeal, most pertinently, s 14(2)(g) of the Victorian Act and s 30(1)(e) of the New South Wales Act.' 1. The reasoning in Breeze does not appear to us to be in error or demonstrably wrong in principle and we adopt it for the purpose of determining the case before us in accordance with the provision of the LPA Act 2004, the relevant statutory power enabling us to make orders being s 562 of the LPA Act. AGREED STATEMENT OF FACTS "In these Particulars: Solicitor means Rebekah Joan Gates First ANZ account means the Australia and New Zealand Banking Group Limited account held in the name of Rebekah J gates at Campbelltown BSB 012 556 Account No. Unknown Second ANZ account means the Australia and New Zealand Banking group Limited Global Cards account held in the name of the Solicitor at Melbourne Vic BSB 013 011 Account No 764526555 CBA account means the Commonwealth Bank of Australia account held in the names of the Solicitor and Adrian David Porter at Ingleburn BSB 062 185 Account No 10269191 Office Account means the Commonwealth Bank of Australia account held in the name of R M Stubbs General Account at Camden BSB 062 516 Acc No. 10190418 ILP Office Account means the Commonwealth Bank of Australia account held in the name MDB Legal Services Pty Limited t/as Rachel Stubbs & Associates Office Account Camden at Camden BSB 062 516 Acc No 10277345 1. From 5 March, 2007 to 23 July, 2012 the Solicitor was a director of Gates Investments (NSW) Pty Limited ACN 074 560 964 [''Gates Investments'']. [AMF2 at p33] 2. Gates Investments is the corporate trustee of the Gates Family Superannuation Fund ['GFSF"], a self managed superannuation fund.[AMF2 at p 193 para 8] 3. At all material times the director of Gate Investments was the Solicitor's father, Mark Henry Gates. [AMF2 at p 33] 4. On 5 March, 2007 the Solicitor became a member and beneficiary of the GFSF. [AMF2 at p 190,193] 5. At this time the Solicitor arranged for superannuation contributions held on her behalf by Asgard Capital Management Ltd t/as Asgard Investment Services [''Asgard''] to be rolled over to the GFSF. [AMF2 at p 191] 6. The Solicitor was admitted to practice on 24 August, 2007. At all material times she held a practising certificate. [AMF p1 para 2] 7. The Solicitor was employed with the law practice known as Rachel Stubbs & Associates [''the Law Practice''] from 5 May, 2008 to 27 August, 2013.[AMF2 at p 19, 193] 8. During July, 2008, the Law Practice office manager requested details of the Solicitor's superannuation fund. 9. The employer forwarded to the Solicitor cheques so that she could personally deposit the cheques into the GFSF. [AMF2 at pp 20 at para 4b, 42, 50] 10. Upon receiving the cheque dated 24 July, 2008 in the amount of $803.24, the Solicitor asked her father whether her superannuation entitlements could be paid into the GFSF. He refused and indicated that she could contribute her superannuation entitlements to the Asgard fund. [AMF2 at p 198] 11. In November, 2008 the Solicitor married Adrian Porter. [AMF2 at p 197] 12. At a date unknown, but probably in or after November, 2008, the Solicitor completed a Law Practice "NEW EMPLOYEE PERSONAL INFOMRATION" form. The features of that form are: [AMF2 at p 30] 'Super BSB: 013 011 A/c 764526555 A/c – Gates Investments (NSW) Pty Ltd ATF Gates Family Super Fund ....... Employee Information: Surname: Porter/Gates ... Emergency Contact Information: Adrian Porter ... Husband ... Bank/Credit Union Details 'BSB 062 185 Account No 10269191 Account Holder Name: R J Gates + A D Porter Branch and Address: CBA, Ingleburn 1. By virtue of the information provided by her on the "NEW EMPLOYEE PERSONAL INFORMATION" form, the Solicitor expressly represented to her employer that: 1. The GFSF was a fund to which her employer could make superannuation contributions for her benefit; 2. The Second ANZ Account was the account of the GFSF; and 3. The Second ANZ Account was the account of a fund to which her employer could make contributions for her benefit. 1. The Solicitor knew that: 1. Her superannuation entitlements were not being and would not be forwarded to the GFSF; 2. The Second ANZ Account was not the account of the GFSF; 3. The Second ANZ Account was not the account of a fund to which her employer could make contributions for her benefit; and 4. That the Second ANZ account was her private account. 1. In the circumstances described in paragraphs 13 and 14 above, the Solicitor misled her employer. 2. Whereas at all material times the Solicitor knew that the payments of superannuation entitlements were for her benefit, she did not appreciate at the time the extent of wrongdoing involved in and the consequences of acquiring those benefits early. [Reply, para 6; AMF2 at p 198 at para 40, 200 at para 55, 205 at para 80] 3. On 1 April, 2009 the Law Practice became an incorporated legal practice owned by MDB Legal Services Pty Limited. [AMF2 at page 33] 4. On the dates shown, the employer made superannuation payments for the benefit of the Solicitor by the stated method with a destination as follows: DATE PMT METHOD PAYER PAYEE SUM $ DEST'N EVIDENCE AMF2 at page 24 Jul 08 Chq No 1199 given to solicitor Office Acc R Gates (Super) 803.34 CBA Acc 42-44 13 Nov 08 Chq No 1399 given to solicitor Office Acc R Gates (Super) 1,056.24 CBA Acc 45-46 2 Jun 09 EFT Office Acc 383.64 Rebekah Gates 129 7 Jul 09 Chq No 71 given to solicitor ILP Office Acc R Gates (Super) 1,691.40 Gates Rebekah Joan & Porter Adrian David 69-70, 129 25 Aug 09 EFT ILP Office Acc 1,234.56 R Gates 012-556 71, 129 18 Nov 09 EFT ILP Office Acc 1,532.00 R Gates 012-556 71, 129 Jan 10 Chq No 829 ILP Office Acc The Gates Superannuation Fund "Gates Super Fund" [1,937.70] Cancelled. Solicitor requested replacement cheque with payee 'R Gates (Super)' 19 Jan 10 Chq No 852 given to solicitor ILP Office Acc R Gates (Super) 1,937.70 Rebekah Gates 73, 129 14 Apr 10 Chq No 2627 given to solicitor ILP Office Acc R Gates (Super) 1.620.00 Rebekah J Gates 012-556 6, 47, 129 21 Jul 10 Chq No 2907 given to solicitor ILP Office Acc R Gates (Super) 1,620.00 Rebekah J Gates 59-60, 129 29 Oct 10 Chq No 2210 banked by employer ILP Office Acc The Gates Superannuation Fund "Gates Investment" 2,203.90 Second ANZ Acc 61-62, 129 25 Jan 11 Chq No 2472 attempted banking by employer into Second ANZ Acc ILP Office Acc The Gates Superannuation Fund "Gates Investment' [2,203.68] Rejected by bank as payee did not match account name for the Second ANZ Acc 25 Jan 11 Chq No 2472 given to Solicitor ILP Office Acc The Gates Superannuation Fund "Gates Investment' 2,300.68 R Gates, 012-556, Campbelltown 4, 51, 129 TOTAL 16,383.46 1. In April, 2011, after coming to a proper appreciation of her responsibilities in relation to superannuation, the Solicitor provided her employer with a direction to deposit into her Asgard fund all superannuation payments made for her benefit. [AMF2 at p 200 paras 12, 51] 2. On 20 April 2011 the Solicitor completed an Australian Taxation Office Standard Choice Form, directing her employer pay superannuation contributions on her behalf to Asgard. [AMF2 at p 39] 3. On 30 August 2013 a complaint was made against the Solicitor by Rachel Stubbs, the principal and then solicitor director of her previous employer [AMF2 at pp 1-3] 4. On or after 4 December 2013, the Solicitor through her accountants, W L Browne & Associates Pty Ltd advised the Australian Taxation Office that 5. 'Whilst formerly employed by Rachel Stubbs & Associates (ABN 18 135 455 784), Superannuation Guarantee (SGC) amounts totalling $16,383.46 were incorrectly paid to the taxpayer's individual bank account during the period from 24 July 2008 to 25 January 2011..... [AMF2 at p 142, 146, 163]. 6. The taxpayer would like to acknowledge and bring to the attention of the ATO, that the SGC amounts totalling $16,383.35 have not been deposited into a complying superannuation fund to date... 7. We would like to propose a number of possible courses of action to rectify this matter....' 8. On 16 December 2013 the Solicitor provided a response to the Office of the Legal Services Commissioner in which she conceded that she had deposited monies payable to her superannuation fund into her own account and that she regretted doing this [AMF2 at pp 88-98]. She said: 9. '....... that during this time in her life there were a number of significant stressors which under scored her conduct.....' [AMF2 at p 90] 10. The Solicitor over many years experienced a number of significant stressors. She has taken positive steps to seek appropriate assistance in respect of those stressors. 11. On 9 January 2014 the Solicitor paid into the Asgard fund the sum of $16,383.35 [AMF2 at p 148] 12. In response to a letter dated 3 March 2014 from the Law Society [AMF2 at p 131], the Solicitor confirmed on 17 April 2014 that her letter of 16 December 2013 to the Office of the Legal Services Commissioner was to be considered part of her reply. She reiterated that she misled her employer as to the destination of her superannuation funds and stated that she truly regretted her actions. [AMF2 at p 139] 13. On 8 July 2014 Mr Tony Mance (CPA) of W L Browne & Associates Pty Limited acknowledged that when he had received instructions from the Solicitor she had made it clear she wanted to proactively contact the ATO. Correspondence was sent to the ATO to seek guidance on how to resolve the matter. Frank disclosure was made to the ATO as to the payment by the Solicitor to her personal bank account of the relevant superannuation payments. A course of action was implemented after contact with the ATO, which led to the event described in paragraph 25 above [AMF2 at p 163] 14. In her Statutory Declaration dated 17 November, 2014, the Solicitor states at paragraph 10: [AMF2 at p 193] "Between the period July 2008 to January 2011 I received superannuation cheques from my previous employer, made payable to R Gates (Super) and the Gates Superannuation Fund "Gates Investments" and deposited them into my personal account. My previous employer also made direct transfers into an account nominated by me of my superannuation payments, which was my personal account." 1. The Solicitor, throughout the investigation by the OLSC and Law Society of the complaints against her, responded in a constructive and appropriate way and provided particulars, information and documentation as it was sought." 2. It is unnecessary for us to provide greater detail of the facts than are as set out in the Agreed Statement of Facts. 3. In support of the Council's case, Affidavits of Anne-Marie Foord sworn 21 April, 2015 and 16 July, 2015 were tendered and relied upon. 4. Mr. Walsh, Solicitor who appeared for the Solicitor relied on his Reply filed 30 June, 2015 together with a Statutory Declaration signed by the Solicitor on 17 November, 2014 and two Statutory Declarations signed by Mark Henry Gates, a practising solicitor, who is the Solicitor's father. Two other documents were tendered on behalf of the Solicitor, namely, a report of Ms. Josephine Luna, Counsellor, dated 11 November 2014 and a report of Dr Olav Nielssen, forensic Psychiatrist dated 10 January 2015. 5. No objection was taken to the tendered evidence nor was the Solicitor or any of the witnesses required for cross examination. The Solicitor's Reply 1. By her Reply, filed 30 June, 2015, the Solicitor admitted that she was guilty of professional misconduct as a result of her misleading her employer as to the destination of the superannuation payments and admitted the grounds contained within the Application. She stated she did not appreciate, at that time, the importance of the rules relating to superannuation and believed that such superannuation payments were intended as a benefit to her at some point and as such, did not properly contemplate the consequences of her actions. It was her intention to rectify this but she failed to do so. 2. The Solicitor did not oppose the Orders sought by the Council as set out paragraph 3 above. Background to the Complaint. 1. The complaint was initially lodged on 30 August, 2013 by Rachel Stubbs, the previous employer of the Solicitor that the solicitor had misapplied moneys payable to her by way of superannuation. Ms. Stubbs provided supporting documents to the Council. Three days before the complaint, on 27 August 2013 the solicitor had resigned from her employment with Ms. Stubbs. 2. An issue arose as to the complaint being out of time, however, the Office of the Legal Services Commissioner determined to proceed with the complaint pursuant to Section 506 of the Legal Profession Act 2004. The matter was then the subject of disclosure to the Solicitor who retained Mr Walsh to represent her. The initial response to the complaint 1. In May, 2008 the Solicitor was employed by Ms Stubbs at her Camden Office. Ms. Stubbs worked with her husband Brendan Hanks who was an unqualified person. His role was a ''Practice Manager.'' 2. In her initial response the Solicitor conceded that she deposited monies payable to her superannuation fund into her own account. It was said on her behalf: "... She truly regrets doing this. She says that during this time in her life there were a number of significant stressors which underscored her conduct. The most significant problem that she faced was that her mother tragically suffered from a long term psychiatric illness. Her mother and father had separated some years beforehand and the subjective illness of her mother no doubt played a significant role in the breakup of her parents' marriage. Her husband experienced a period of unemployment also. Her mother became very dependant, both emotionally and financially upon her daughter, who herself was shortly to be married, namely in November, 2008. The conduct of the Solicitor's mother was interrelated to excessive spending by her mother which is a problem that is not uncommon with people suffering from depression. The Solicitor found herself in a position where she was doing her very best to work extremely hard for the complainant in very difficult circumstances as to the nature and volume of the work were such that placed this young Solicitor under considerable pressure. Her mother incurred a number of debts and the Solicitor, because of her close relationship with her mother, endeavoured to help her as much as she could. Regrettably, the Solicitor applied the monies for superannuation to assist her mother in the circumstances. The Solicitor made disclosure to her accountant and he in turn to the Australian Taxation Office. The Solicitor corrected the position as referred to in the response, above and payment shall be made into her superannuation fund." 1. An allegation was made by Ms. Stubbs and Mr. Hanks that the Solicitor had altered cheques that were drawn in her favour in respect of superannuation. The Solicitor denied this and the Tribunal accepts that it did not occur. 2. It appears from the complainant's evidence (in support of the complaint) that Ms Stubbs and Mr Hanks caused traces to be made in respect of two of the superannuation payments on 16 and 18 February 2011. It is the understanding of the Solicitor and Mr Walsh that Ms Stubbs and Mr Hanks knew in or about February 2011 as to the conduct of the Solicitor, yet took no steps to bring it to the Solicitor's attention or to correct the position. 3. On 11 March Ms Stubbs supported the Solicitor's application for an unrestricted Practicing Certificate which was granted on 28 March 2011. Subsequently, the Solicitor was appointed to undertake the day to day operations of the Camden office. 4. In September 2012 the Solicitor was earmarked for partnership with Rachel Stubbs and made a signatory of the law practice office and trust account. 5. On 17 September 2012 the Practice Manager, Branden Hanks announced "Rebekah Gates will become a partner of MDB Legal Services Pty Limited t/as Rachel Stubbs & Associates immediately. Rebekah joined us over 4 years ago and has worked hard as to advance our cause ....." 6. On 13 March Rachel Stubbs supported the Solicitor's application for Specialist Accreditation in Family Law. 7. On 27 August 2013 the Solicitor ceased her employment with the law practice. 8. On 28 August 2013 Rachel Stubbs wrote to the Programme Coordinator, Specialist Accreditation, Law Society, formally withdrawing her support for the Solicitor's Specialist Accreditation. 9. On 30 August 2013 the law practice wrote to the Law Society enclosing Bank documentation pertaining to superannuation entitlements being deposited into the Solicitor's personal bank account. 10. On 4 December 2013 the Solicitor instructed her Accountants, WL Browne & Associates Pty Ltd to advise the ATO of her receipt of the superannuation entitlements. 11. On 16 December 2013 the Solicitor responded to the letter from the Office of Legal Services Commissioner conceding misconduct and expressing regret in regard to same. 12. On 9 January 2014 the Solicitor paid into compliance Superannuation Fund (Asgard) the sum of $16,383.35. 13. On 20 January 2014 the Office of Legal Services Commission determined to accept the complaint out of time. 14. On 17 April 2014 the Solicitor confirmed to the Law Society her concession of liability previously made to the Office of Legal Services Commissioner. 15. On 20 October 2014 the Professional Conduct Committee passed a resolution seeking an order that the Solicitor's name be removed from the roll. This resolution was bought to the attention of the Solicitor. At the time the Solicitor was advised of the resolution, her husband underwent major bowel surgery and an extension of two weeks was sought to provide a further reply to further information sought. It was not until August 2015 that the Solicitor received notification from the Law Society that the Council did not intend to proceed with seeking an order for her removal from the roll. 16. On 5 November 2014 Ms. Stubbs made a further lengthy submission to the Law Society. 17. On 17 November 2014 a further response was provided by the Solicitor to the Law Society which included the following paragraph: 'the Solicitor wishes to take the opportunity of conveying her apologies to Ms. Stubbs and Mr. Hanks as her former employer in conducting herself in this way in relation to the superannuation issue. The solicitor advised that she wished to make such apologies sooner, but was hesitant to provide a letter unprotected by the confidential nature of this investigation and in my submission is justified in circumstances in relation to the publication of letters from the Commissioner by Mr. Hanks as referred to in my letter of 16 December, 2013....' Characterising the Conduct 1. The facts in this case are novel. There is no precedent to assist us. Therefore an analysis of where the Solicitor's misconduct might most comfortably sit is necessary and the Tribunal is grateful to both Ms. Groenewegen and Mr. Walsh for their submissions in this regard. A Did the conduct occur in the course of legal practice? 1. The first question is whether the Solicitor's misconduct occurred in the course of legal practice or whether it was personal to the Solicitor, occurring in the course of employment which happened to be in a law practice. 2. This question must be answered because misconduct within the course of practice is more directly connected with a Solicitor's status as a professional, and ordinarily has a greater bearing on fitness to practice. 3. In the case of New South Wales Bar Association v. Osei (No.2) [2008] NSWADT 324 one of the questions which the Tribunal had to determine was whether Mr. Osei's conduct occurred 'in connection with the practice of law' within S 127(2) of the Legal Profession Act 1987. 4. Mr. Osei practised as a barrister from Downing Chambers, situated in Pitt Street, Sydney. He also was a Director of a company known as Caprock International Pty Ltd ('Caprock') which was a company formed by the barrister and his wife. Among other things, Caprock conducted an immigration consultancy business and both the barrister and his wife were, at the relevant time (of the conduct complained of) registered migration agents under the Migration Act 1958 (Cth). As a result of his migration consultancy work with Caprock, the Barrister was retained by a husband and wife to appear before the Refugee Review Tribunal ('RRT') seeking a review of a decision by the Department of Immigration and Multicultural Affairs refusing to grant them protection (Class A) visas. 5. The Bar Association argued that the Barrister's role in appearing before the RRT was 'sufficiently closely connected with actual practice ' that it should be held as being 'in connection with the practice of law'. The Tribunal rejected the submission saying (at paragraph 87) 'The mere fact that some similar skills may be deployed in the RRT by a migration agent as are commonly employed by lawyers appearing in Courts or other Tribunals is not to the point. The connection must be between the conduct of the lawyer and the lawyer's legal practice. It is not sufficient that the nature of the conduct in question is such that it is of a type that might be engaged in by a lawyer in legal practice.' 6. In the case of Law Society of New South Wales v Jayawardena [2008] NSWADT 187 the Tribunal was asked to determine whether Mr. Jayawardena's conduct occurred 'in connection with the practice of law' in order for it to consider the orders which were being sought against the Solicitor. In its Reasons, the Tribunal referred to the case of Council of the NSW Bar Association v. Sahade [2007] NSWCA 145. Mr. Sahade had been found guilty of professional misconduct in 1999 as a result of pre-registering and applying for shares in Telstra, through a public offering by the Commonwealth, by making multiple (353 pre-registration applications and 215 applications for shares using slight variations of names and addresses) in circumstances where multiple applications from the same persons for shares in Telstra were not permitted. The NSW Bar Association appealed the decision to the Court of Appeal. At [86] the Court of Appeal noted that it was 'also relevant that the conduct complained of involved share purchases and was, in that sense, unrelated to the practice of law. The conduct revealed a defect in character, because of its deceptive or deceitful nature. Whilst that aspect of character is of high importance in relation to practice as a legal practitioner, it may be accepted that individuals behave differently in different circumstances. It would be wrong in the presence [sic] case to simply assume that a reasonably brief period of deceptive conduct in relation to private investments is of weighty significance in relation to the practice of law.' 7. The court (at [58]) further observed that 'some aspects of character are likely to be of limited relevance to the practice of law. However, a willingness to engage in deceptive or dishonest behaviour would generally be a matter of central relevance. Such a characteristic may be revealed by conduct in the practice of law or in conduct unrelated to the practice of law.' 8. At [74] the Court of Appeal said this: 'the better view is that conduct occurring otherwise than in connection with the practice of law will only constitute professional misconduct if it would justify a finding of a kind defined in the definition. In other words the definition may be expansive in relation to personal misconduct, but only in respect of misconduct sufficiently serious to warrant a finding of unfitness or lack of good character. There is no temporal element involved in this, rather the identification of a high standard.' 1. The Tribunal in Jayawardena's case determined at [149] 'it therefore seems to us in order to make a finding against an Australian lawyer for 'unsatisfactory professional conduct' one needs to find the conduct complained of as being conduct 'in connection with the practice of law' (in other words he/she must hold a current practicing certificate to be caught by this definition of conduct) but, in order to make a finding under section 497(1)(b) (that is professional misconduct where the conduct complained of is 'otherwise than in connection with the practice of law') one needs to make a positive finding relating to facts that fall within Sahade principle. 2. In the case of Council of the New South Wales Bar Association v. Costigan [2013] NSWCA 407 the New South Wales Court of Appeal considered the meaning of the phrase 'in connection with' as contained in clause 106A of the Legal Profession Regulation 2005. In that case it was asserted that Mr. Costigan had received moneys on account of legal costs for legal services in advance of the provision of legal services and had dealt with such money in contravention of S. 252 of the Legal Profession Act 2004. The Court considered a number of cases dealing with this subject matter and concluded: 55 'in this case, the nature of the connection can be evaluated by reference to the specific obligations imposed on the barrister both with respect to the deposit and withdrawal of money received from direct access clients. Although the Act specifies that the money received from direct access clients is not trust money, the barrister receiving the money on account of legal costs for services to be provided, must deal with the money in the prescribed manner if he or she is to bring themselves within the exemption provided by cl 106A. 56 In the case of the respondent's Account 72333, it is clear from the nature of the entries recorded in that account that it was used for the respondent's personal financial affairs. The position is likewise in relation to the credit card Account 3725, and credit card Account 5500. None of these accounts were maintained by the respondent 'in connection with' his practice as a barrister.' 1. In the case before us, the misconduct did not involve the provision of legal services to any person nor was it as a result of the Solicitor taking advantage of the privileges afforded to her by reason of her status as a legal practitioner, rather, the conduct occurred in the course of the Solicitor's employment. B The Solicitor misled her employer 1. The Solicitor admits that her conduct involved dishonesty. 2. Without seeking to downplay the Solicitor's admitted dishonest conduct, the relevant dishonesty was not in connection with the Solicitor's dealings with clients or the Court. Further, while it is arguable that the Solicitor was dishonest in her dealings with a fellow practitioner [that is, her former employer] the particular conduct was not in connection with the administration of justice and not in the performance of her duties as a legal practitioner. Fame and character 1. Dishonesty can be a yardstick by which fame and character are determined. 2. Fame involves being known, favourably, by a large section of the public, while character is directed to a more objective evaluation which might conflict with what the general public thinks. (see Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 per Jackson J at [56] In this case Ms Jackson was said to have made a false statutory declaration and given false evidence before the District Court in 1996 with respect of the identity of the driver of a motor vehicle which disobeyed a red traffic light in August, 1995. As a result, the Legal Practitioners Board refused to declare her to be of good fame and character and otherwise suitable for admission as a legal practitioner. Ms Jackson appealed that decision to the Supreme Court of New South Wales which found her not be of good fame and character and therefore not a suitable candidate for admission to the profession. 3. In its strict sense, character refers to the inherent moral qualities of a person – which is something more intrinsic to the individual in question. Character is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person. (See Melbourne v The Queen (1999) 198 CLR 1 at 15 per McHugh J; [1999] HCA 32 per McHugh J at [33]. 4. A person's reputation can render that person famous or infamous, but may have very little to do with character. 5. In Ex parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR (NSW) 448 at 476-476, Holmes JA said: Good character' is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.' 1. The good fame of the Solicitor is supported by nine testimonials in which the referees [even after becoming aware of the substance of the complaint] speak of the solicitor's integrity and highly ethical and professional manner (reference from Jo Haughton dated 16 November 2014 at AMF2 p 219; reference from Peter Cook, undated at AMF2 p 221). 2. Regarding the acts and motives of the Solicitor, she has provided an explanation for her conduct and the circumstances in which it occurred. 3. The Tribunal notes the Solicitor's employer offered the Solicitor partnership and the opportunity to become a signatory to the firm's trust account after the employer knew of at least two improper destinations for the Solicitor's superannuation entitlements. Further, the employer wrote a glowing reference for her specialist accreditation. Therefore, at the material time, the employer regarded the Solicitor as having high moral qualities and being of good character. Later, the employer appeared to change her mind, immediately after the Solicitor resigned and went to work for the opposition. 4. The conduct of the Solicitor in this case and especially in the context in which it occurred, is not sufficient to impugn her inherent moral qualities. We find it is not sufficient to lead to an adverse finding about her character. C Defrauding the revenue and misuse of superannuation funds i. Failure to pay personal income tax on $16,383.46 when it was acquired income 1. The Solicitor's uncontested evidence is that the failure to pay income tax on the superannuation payments improperly received by her as income was unconscious and unintended as she failed to turn her mind to the tax implications of what she was doing. 2. Hence, we accept that her conduct must be distinguished from those who wilfully defraud the revenue by submitting false personal tax returns. (See Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325. Mr. Livanes' crimes in defrauding the Commonwealth of $1,640,604 were described as representing a high level of dishonesty motivated by greed over a long period of time. His dishonesty demonstrated that he was guilty of moral turpitude 'and is not worthy of the trust and confidence of his clients, the courts, or the public': per McColl JA at [44]) 3. Similarly, her conduct must be distinguished from those who avoid paying income tax by wilfully failing to submit personal tax returns for years on end. (see New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284) ii. Misuse of superannuation funds and defrauding the revenue whilst submitting otherwise accurate personal income tax returns. 1. If the Solicitor's wrongdoing is regarded as a misuse of superannuation funds there is a wealth of precedent. Solicitors have often appeared before the Tribunal for failing to pay their employees' superannuation entitlements and failing to remit to the ATO collected GST and PAYG Withholding Tax. (see Council of the Law Society NSW v Bouzanis [2006] NSWADT 55; Council of the Law Society of NSW v Vosnakis [2007] NSWADT 42; Council of the Law Society v. Somerfield [2008] NSWADT 235; Council of the Law Society NSW v Koffel [2010] NSWADT 149; Council of the Law society NSW v. Gillroy [201]NSWADT 232; Council of the Law Society NSW v Nicopoulos [2011] NSWADT 84; Council of the Law Society NSW v. Dalla [2011]; Council of the Law Society NSW v. Kingston [2014] NSWCATOD 21; NSWADT 130; Council of the Law Society of NSW v Delpopolo [2014] NSWCATOD 55). In this sense, these solicitors have used public funds to prop up their practices. Without more, they are not removed from the Roll. 2. The Solicitor's conduct is no worse and in our view less serious than that of the respondents who come before this Tribunal in relation to conduct described above. 3. In cases involving unpaid PAYG Withholding Tax, monies deducted from employees' gross salaries have intentionally not been remitted by the respondents to the ATO. Such a failure exposes the innocent employee to potential action by the ATO. 4. In cases involving unremitted GST, monies were collected on behalf of the ATO but not forwarded to it by the respondents. 5. In cases of unpaid superannuation entitlements, monies that should have accrued in a compliant fund for the later benefit of employees did not reach their intended destination. 6. Among others, Mr Koffel, Mr Kingston and Ms Delpopolo used the ATO's and employees' monies to prop up their failing business. None of them was regarded as unfit to practise. 7. In this case the Respondent solicitor did not use monies intended for the benefit of others. She used monies which were intended for her later use prior to them vesting in her. D. The solicitor acquired as a legal owner monies in which she held only a beneficial interest. 1. The Solicitor as a beneficiary obtained funds properly destined at this time for the trustee of a compliant superannuation fund. 2. This is very different from a trustee using without authority entrusted funds (in which by definition they have no beneficial interest). In these cases solicitors have been found liable for misappropriation, the remedy for which was tailored to reflect the level of subjective dishonesty involved in the use of the funds.(see Dupal v Law Society of NSW [1990] NSWCA 161; Kumar v. Legal Services Commissioner [2015] NSWCA 161; Council of the Law Society of NSW v Pizzinga [2012] NSWADT 211; Council of the Law Society of NSW v Nicholls [2012] NSWADT 222; Council of the Law Society of NSW v. Ross [2013] NSWADT 106; Council of the Law Society of NSW v. Scanlan [2015] NSWCATOD 44.) 3. The Solicitor has admitted and the Tribunal accepts that dealing with moneys in which she had a beneficial but not a legal interest is to be regarded as objectively dishonest. Discussion 1. The Tribunal accepts the Solicitor experienced a number of significant stressors over a number of years and took positive steps to seek assistance in respect of those stressors. In response to a question asked of her by Dr. Olav Nielssen as to her emotional state around the time she banked the superannuation cheques, Ms. Gates said 'I was working all the time.... I felt the burden of everything... I was seeing a counsellor around that time to try to repair the situation with my mum... I was not sleeping well... I wasn't well physically.... I was having thoughts about wanting it all to end.... of stopping work.' She said 'I could do work but when I thought of anything personal it was like my head would not work.... I can picture looking back having these cheques.... I tried to think it through but I could not get to the point of how I could fix this.' 2. In his submissions, Mr. Walsh reminded us of another very significant stressor which the Solicitor had to deal with being the spectre of her right to practice being removed from her and the Tribunal accepts this fact. The relevant resolution was passed by the Professional Conduct Committee on 13 October, 2014 and notified to Mr. Walsh on 20 October, 2014 but it was not until 12 August, 2015 that the Law Society notified Mr. Walsh the Society would be seeking a reprimand in lieu of a strike off order. 3. It was put to us that when a solicitor admits to being dishonest and the question of whether a dishonest solicitor should remain on the roll, one has to look at the context in which the dishonesty occurred and ask the question 'does the dishonesty admitted to give rise to the suggestion that the solicitor is unfit to practice' followed by 'does the public need to be protected from this solicitor, did the dishonesty occur in the course of legal practice or outside the course of legal practice.' In this particular case, it appears those questions were not asked by the Law Society at the relevant time and had they been, in our view, the question of fitness to practice would not have arisen. In our view the time that elapsed between the filing of the original Application and the notification to the Solicitor that a strike off order would no longer be sought by the Council was punitive in the extreme. 4. As stated earlier in these Reasons, the good fame of the Solicitor is supported by nine testimonials in which the referees, with full knowledge of the substance of the complaint against her, speak of the Solicitor's integrity and highly ethical and professional manner. That evidence, together with the Solicitor's admission and contrition has been taken into account by us in reaching our decision. However, it remains the fact that the Solicitor knowingly engaged in dishonest conduct. 5. In her Statutory Declaration signed 17 November, 2014, the Solicitor declares at paragraph 40 'I did not appreciate the sanctity of superannuation funds or understand the rules and regulations regarding their payment and operation. I associated those funds as being intended for my benefit at some point and did not properly contemplate the consequences of my actions. I intended at this time to rectify the incorrect deposit of the superannuation funds by making a payment into the SMSF at a later date. I failed to do this.' 6. 79 The Tribunal does find it difficult to accept the legitimacy of the above statement in circumstances where that person holds a law degree which assumes at least a basic knowledge of the workings of superannuation entitlements including conditions of access, where her employer requested her to nominate a superannuation fund into which that employer could pay her entitlements (as opposed to the Solicitor's bank account) and where the solicitor specifically requested her employer to give her the cheques for her superannuation entitlements on the basis that she would bank them herself. 7. It was submitted by Mr. Walsh that the misconduct falls to the lower end of the range and may in the unusual circumstances of this particular case amount to a finding of unsatisfactory professional misconduct. 8. Section 496 of the Legal Profession Act 2004 [LPA 2004] defines unsatisfactory professional conduct as including: 'conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.' 1. For the reasons outlined above, the Solicitors conduct was not 'in connection with the practice of law'. 2. On that basis, unsatisfactory professional conduct as defined in s496 of the LPA 2004 does not lie. 3. Section 497(1)(b) of the LPA 2004 provides that professional misconduct includes: '(b) conduct of an Australian Legal Practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.' 1. We are not satisfied upon the basis of the underlying conduct which we have described and in light of the good fame of the solicitor of which we have been satisfied that the Solicitor is not a fit and proper person to engage in legal practice. Accordingly, the conduct does not fall within the statutory definition of professional misconduct contained in section 497 of the LPA 2004 as construed in Sahade at [74]. 2. In his submissions, Mr. Walsh alluded to the case of Council of the Law Society of New South Wales v. John Alexander Xenos [2012] NSWADT at 283 where a finding of unsatisfactory professional conduct was made in circumstances where Mr. Xenos failed to pay Counsel's fees 3. Mr. Walsh submitted that in the case before us similar health and financial factors were present plus additional features which have been referred to above in these Reasons which could assist us in characterising the conduct as unsatisfactory professional conduct. 4. The Tribunal notes that in the Xenos case at [30], it was stated that the conduct might have been more appropriately characterised as professional misconduct but for the lack of evidence as to the reasonableness of the fees being charged and taking into account evidence as to the solicitor's health and financial situation during the relevant period (June 2008 to April 2009). We do not accept that the conduct is to be characterised as unsatisfactory professional conduct for the reasons already stated. Findings 1. The common law test of professional misconduct and whether it requires that the conduct involved be directly referrable to legal practice was considered by Spigelman CJ (Mason P and Handley JA) in New South Wales Bar Association v Cummins [2001] NSWCA 284 at [36] – [43] in which the Chief Justice stated: '36 The origins of contemporary doctrine on these matters is to be found in the judgment of Lopes LJ in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where his Lordship at 763 propounded what he described as a non-exhaustive definition of "infamous conduct in a professional respect" as follows: "If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,' then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct in a professional respect'." 37 In Allinson, the Court of Appeal was exercising a statutory jurisdiction. The phrase "infamous conduct in a professional respect" was statutory, appearing in s29 of the Medical Act (21 and 22 Vict. c. 90) (U.K.). 38 This definition was applied to the case of the solicitor in the case of In re A Solicitor. Ex parte The Law Society [1912] 1 KB 302, where the issue was the definition of "professional misconduct" within the Solicitors Act 1888 (U.K.). 39 In Myers v Elman [1940] AC 282 Viscount Maugham adopted this definition for purposes of the exercise of the inherent jurisdiction of the Courts when he said at 288-289: "Apart from the statutory grounds, it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: In re a Solicitor. Ex parte The Law Society ." 40 Lord Atkin may have taken a different view in Myers v Elman, when he said at 303 that the words "professional misconduct" … "only mean misconduct in the exercise of the profession". 41 Viscount Maugham's approach – which omits from the Allinson formulation, the introductory words "in the pursuit of his profession" – appears to have prevailed, at least in New South Wales (see Re Hodgekiss (1962) SR (NSW) 340 at 351; Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19 at 24-25; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203D-E, 207B-C). 42 In Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1, Lord Parker CJ said at 9: "… Mr Crispin says that as a matter of law a professional man's conduct cannot be said to be disgraceful to him in a professional respect unless it was done 'in pursuit of his profession,' and he would add that 'in pursuit of his profession' meant 'in the course of the practice of the profession.' For my part I see no valid ground for limiting the words in the manner suggested. If, of course, the conduct complained of is equally reprehensible in anyone, whether a professional man or not, as for example, conduct constituting some traffic offence, that conduct would not come within the expression. But if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession, or, in the present case, conduct disgraceful to him as a practising veterinary surgeon." 43 In that case, the conduct involved the mistreatment of animals which, although not arising in the course of practice, did have a direct bearing on the practice of his profession by a veterinarian." At [56] the Chief Justice further stated: 'There is authority in favour of extending the terminology 'professional misconduct' to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with and, usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person.' 1. On the basis of the conclusions reached in Cummins, in our view the dishonest conduct by which the solicitor misled her employer to direct superannuation moneys into a personal account would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency and, although a form of personal conduct, may in the circumstances be regarded as professional misconduct although at the lower end of the scale. 2. In the case of Prothonotary of the Supreme Court of New South Wales v. Da Rocha [2013] NSWCA 151 the court considered the concept of 'fit and proper' and at paragraph 29 said 'In Foreman where the court of appeal indicated that in determining whether someone is a fit and proper person to be a solicitor the relevant considerations may include: the protection of the public against similar conduct, the character of the solicitor, and the effect which an order will have on the understanding (within the profession and amongst the public), of the standard of behaviour required of solicitors, the effect upon relationships which must exist between solicitors and the circumstances surrounding the impugned conduct.' 3. The protection of the public is not in issue given that the conduct complained of did not occur in the course of legal practice and no member of the public was harmed. The good character of the solicitor is confirmed by a number of members of the legal profession whose testimonials are before us and who state that the conduct complained of was out of character and we accept those testimonials. The formal finding which we intend to make of professional misconduct in what can only be described as unusual circumstances is directed in part to remind the profession of the standards required of all practitioners both in the practice of their profession and where such conduct might occur outside the course of practice but manifest the absence of qualities which are compatible with or essential for the conduct of practice. 4. The Tribunal acknowledges the Solicitor's early concession of her conduct once complained of and her contrition. In her Statutory Declaration dated 17 November, 2014 at paragraph 81, the Solicitor states, 'I accept unreservedly that I did the wrong thing.....'. At paragraph 82, the Solicitor states' I ask that I be given an opportunity to continue to prove that since rectifying my mistake in April 2011 and further in November, 2013, that I can be an upstanding member of the community and make the Legal profession proud to include me as a member'. 5. The Tribunal is satisfied that the Solicitor's conduct as particularised in the Agreed Statement of Facts and as established on the evidence amounts to professional misconduct. As reflected earlier in these Reasons, the Solicitor did not oppose the orders sought by the Council, however it is a matter for this Tribunal to determine whether those proposed Orders are within the permissible range and we so find. Costs 1. By Clause 23(1) of schedule 5 of the civil and Administrative Tribunal Act 2013 the Tribunal is required to order costs of the Council to be paid in proceedings such as these where the Tribunal has found that the Solicitor, an Australian legal practitioner, is guilty of unsatisfactory professional conduct or professional misconduct and there are no exceptional circumstances. 2. There have been findings of professional misconduct. There are no exceptional circumstances that would justify any other outcome regarding the Council's costs. The Tribunal therefore has concluded that there should be an order for the Solicitor to pay the Council's costs of the proceedings. Orders 1. The Tribunal makes the following orders: 1. The Solicitor be reprimanded. 2. The Solicitor, at her own expense, is to undertake within 9 months of the date of these orders, a course in Legal Ethics and a course in Practice Management that is approved by the Manager of Professional Standards Department of the Law Society of New South Wales and achieve a mark of not less than 50%. 3. The Solicitor pays the costs of and incidental to the proceedings as assessed or as agreed. 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: 30 March 2016