Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Cahill [2017] NSWCATOD 4 Hearing dates: 2 December 2016 Date of orders: 10 January 2017 Decision date: 10 January 2017 Jurisdiction: Occupational Division Before: S Westgarth, Deputy President P Moran, Senior Member M Bolt, General Member Decision: (1) The respondent is guilty of professional misconduct; (2) The legal practitioner is reprimanded; (3) The legal practitioner is fined the sum of $5,000.00; and (4) The legal practitioner is to pay the applicant's costs as agreed or assessed Catchwords: Professional misconduct – factors to consider Legislation Cited: Crimes Act 1900 Legal Profession Uniform Law (NSW) Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Legal Services Commission v Anderson [2015] NSWCATOD 56 Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258 Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Thomas Kenneth Cahill (Respondent) Representation: Counsel: L Pierotti (Applicant) Solicitors: T Williams (Respondent) D Miller (Legal Services Commissioner) File Number(s): 1620187 reasons for decision Background 1. These proceedings were commenced by the filing of an Application for Disciplinary Findings and Orders on 22 July 2016. The respondent filed a reply on 7 September 2016. 2. Shortly before the proceedings were heard on 2 December 2016 the parties filed an Instrument of Consent which incorporated an Agreed Statement of Facts (ASOF). 3. At the hearing, a question arose as to the accuracy of a date contained in the ASOF and, without objection, we made a direction that the parties should file an amended Instrument of Consent and ASOF by 9 December 2016 removing the offending date in par 3 of the ASOF. That direction has been complied with and therefore the Tribunal has received an Instrument of Consent with an amended ASOF signed by a representative of the applicant, by the solicitor for the respondent and by the Legal Services Commissioner. It is dated 2 December 2016. 4. The Instrument of Consent and amended ASOF is attached to these reasons and marked "Annexure A". Its salient terms contain these matters: 1. The Instrument of Consent states that the Tribunal (having found that the conduct of Thomas Kenneth Cahill described in the grounds for application and particularised in the annexed ASOF amounts to professional misconduct) makes, by consent, the following orders: 1. The legal practitioner is reprimanded; 2. The legal practitioner is fined the sum of $5,000.00; 3. The legal practitioner is to pay the applicant's costs as agreed or assessed. 1. The amended ASOF records that the respondent "engaged in professional misconduct in that, over an extended period, fraudulently evaded fares on Sydney trains and State Transit Authority buses by the unauthorised use of a Travel Pass, issued by the Australian Defence Force; 1. The ASOF then contains ten paragraphs particularising the offending conduct of the respondent. 2. From the ASOF it can be seen that the respondent used a Travel Pass of which he was not the named holder to travel on State Transit Authority buses and on Sydney Trains during the period commencing sometime in 2008 until 22 May 2014 in circumstances where he knew he was not entitled to use the pass. The respondent was stopped by police while attempting to use the travel pass, subsequently arrested and was charged with the offence of dishonestly obtaining financial advantage etc. by deception pursuant to s 192e(1)(b) of the Crimes Act 1900. The ASOF also records the decision of the Local Court and the fact that the respondent has paid compensation. It also records that the solicitor voluntarily disclosed the finding against him by the Court to the Law Society by notice dated 6 May 2015. Jurisdiction 1. In consequence of the disclosure referred to above, the applicant commenced an enquiry in August 2015. That enquiry was a complaint initiated under s 266 of the Legal Profession Uniform Law (NSW) (the Uniform Law). That Act came into effect on 1 July 2015 and as the complaint against the respondent was not initiated until after that date, the authority of the applicant and the powers of this Tribunal are governed by the Uniform Law. 2. The relevant provisions of the Uniform Law authorise us to make orders of the kind proposed in these proceedings (see s 302 and 303). Decision 1. Both applicant and respondent acknowledge that the conduct contained in the ASOF constitutes professional misconduct. We agree and find that the conduct which has been acknowledged constitutes disgraceful and dishonourable conduct and would be regarded as such by the respondent's peers of competence and repute (see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750). We find the respondent guilty of professional misconduct. 2. The applicant tendered without objection the affidavit of A M Foord dated 19 July 2016 (Exhibit A) and the Instrument of Consent referred to in par 2 of these reasons (Exhibit B). 3. The respondent tendered the following affidavits without objection: 1. The affidavit of the respondent dated 4 October 2015 (Exhibit 1); 2. The affidavit of C Bannister dated 10 November 2016 (Exhibit 2); 3. The affidavit P J Doherty SC dated 16 November 2016 (Exhibit 3); 4. The affidavit of D Feller SC dated 17 October 2016 (Exhibit 4); 5. The affidavit of P J Mooney SC dated 31 October 2016 (Exhibit 5); 6. The affidavit of D Morgan dated 4 November 2016 (Exhibit 6); 7. The affidavit of J P Redmond dated 21 October 2016 (Exhibit 7); and 8. The affidavit of T R Stevens dated 11 November 2016 (Exhibit 8). 1. Although the applicant originally sought an order that the respondent's name be removed from the roll of solicitors, that order is now withdrawn and the applicant seeks only the orders identified in the Instrument of Consent dated 2 December 2016. In support of that outcome as an appropriate outcome, the applicant made the following submissions: 1. The respondent voluntarily disclosed to the applicant the fact of the charge in the Local Court; 2. The respondent disclosed that he had used the Travel Pass for a period additional to the period identified in the proceedings before the Local Court; 3. That in the respondent's own affidavit the respondent did not shy away from the fact that his actions were dishonest; 4. In his affidavit the respondent has given an explanation as to how the card came into his possession. The card was given to him by a friend who was entitled to it; 5. The respondent has produced a number of affidavits concerning the respondent's good character and stating that the conduct the subject of these proceedings was out of character. One such affidavit comes from a person who was a solicitor until 2007 and is now a Catholic priest; and 6. The respondent has, via a letter from his solicitor, given a detailed account of the period during which the card was used by him and has indicated his remorse and shame. 1. Mr Williams for the respondent made the following submissions: 1. In considering the appropriate orders to be made by the Tribunal, the Tribunal should take into account the conduct of the respondent since the events in question occurred. In the Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258, the Court of Appeal stated that one consideration to be taken into account was whether a respondent is presently not a fit and proper person and whether the respondent can demonstrate that he has become "a different man"; 2. The Tribunal should be guided by the decision in Legal Services Commission v Anderson [2015] NSWCATOD 56. That case concerned a solicitor who dishonestly used the membership card of a deceased client to the Melbourne Cricket Club. Following a request by the club for a photograph to be provided of the member (i.e. the deceased client) the solicitor falsely provided a photograph of himself. The Tribunal fined the solicitor the sum of $10,000.00; and 3. There are a number of factors that the Tribunal should take into account and these are summarised in the decision of the Court of Appeal in Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320. We will deal with these factors subsequently in these reasons. 1. In summary, Mr Williams submitted that the respondent is a fit and proper person, that he cooperated with the police and that the Tribunal should feel comfortably assured that the deterrent effect of these proceedings and the orders which the parties seek to have made will be strong enough for the Tribunal to have confidence that the solicitor will not breach his obligations going forward. Mr Williams also submitted that the respondent had taken no steps to cause any delay in the proceedings and that the evidence which has been provided established a clear sense of the respondent's rehabilitation and his early visible and clear acknowledgment of the wrongfulness of his conduct. 2. Having considered the evidence before us and the submissions, we are of the view that the appropriate penalty is adequately reflected in the orders which the parties seek to have made, namely, a reprimand, a fine of $5,000.00 and an order that the respondent pay the applicant's costs as agreed or assessed. Our reasons are set out below. 3. The respondent's conduct in using the card was disgraceful and dishonourable. As against that, it is necessary to acknowledge that the respondent disclosed to the Law Society of New South Wales the charge brought against him in the Local Court voluntarily. The disclosure was not made as punctually as it ought to have been. It was made in May 2015 whereas the Local Court charge took place in December 2014 and was heard in January 2015. Nevertheless, it was made. Later, when Mr Williams became involved, the respondent made further disclosures concerning the use of the card. He also gave a detailed account of the circumstances in which the card came into his possession and of his genuinely held remorsefulness and shame. He has paid a sum of money in order to compensate for the financial gain he enjoyed by reason of the fraudulent use of the card. He also entered a plea of guilty when charged. 4. One consideration is whether the respondent has shown remorse. A factor in support of the respondent in this regard is the evidence contained in the affidavits of professional colleagues. Many of them have made mention of the respondent's shame and remorse. The evidence in this respect (including that contained in the respondent's own affidavit) persuades us that the respondent is not likely to reoffend. 5. In Prothonotary of the Supreme Court of New South Wales v P it was said that conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. The conduct of the respondent in these proceedings did not occur in the course of professional practice. In our view the conduct does not demonstrate that the respondent's personal qualities are incompatible with the qualities essential for the conduct of practice insofar as the conduct has not impacted on the respondent's professional duties. Although the conduct occurred over a lengthy period of time, the respondent's explanation that the use of the card was one of convenience rather than in order to achieve financial gain has some force. 6. A further factor in Prothonotary of the Supreme Court of New South Wales v P is the attitude of the professional association, which the Court stated was one of considerable significance. Whilst we are not bound by the fact that the applicant seeks the orders in the Instrument of the Consent and that the Legal Services Commissioner consents to those orders, we acknowledge that we should nevertheless treat those views as having considerable significance. 7. Finally, we are persuaded on the basis of the evidence and the submissions made by Mr Williams that we should feel comfortably assured that the effect of these proceedings and the proposed orders will have a significant deterrent effect on both the respondent and also convey a sufficiently appropriate message to the profession at large that conduct of this kind is inappropriate. In our view the amount of the fine ($5,000.00) is appropriate. That amount takes into account the matters mentioned by Mr Williams and the fact the respondent has paid compensation to Sydney Trains and the State Transit Authority, 8. We were referred to the decision of the Legal Services Commission v Anderson (cited earlier) in which the solicitor was fined $10,000.00. It is relevant to say that the solicitor there had ceased to practice and undertook not to reapply for a practising certificate. Without that factor, the decision of the Tribunal may have involved a more severe penalty. 9. Notwithstanding the above view concerning Anderson's case, it is our view that the orders proposed in the Instrument of Consent are appropriate to the circumstances of this matter and the orders are made accordingly. Orders 1. The Tribunal makes the following orders: 1. The respondent is guilty of professional misconduct; 2. The legal practitioner is reprimanded; 3. The legal practitioner is fined the sum of $5,000.00; and 4. The legal practitioner is to pay the applicant's costs as agreed or assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** ANNEXURE A AMENDED AGREED STATEMENT OF FACTS TO AN INSTRUMENT OF CONSENT OCCUPATIONAL DIVISION File number 1620187 For office use only PARTIES Applicant THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES Respondent THOMAS KENNETH CAHILL SIGNATURE Signature of Solicitor for the Applicant: [SIGNED] Anne-Marie Foord Date: 5 December 2016 Signature of Solicitor for the Respondent: [SIGNED] T A Williams Date: 2 December 2016 Signature of Legal Services Commissioner: [SIGNED] J McKenzie Date: 2 December 2016 AMENDED AGREED STATEMENT OF FACTS Re: Thomas Kenneth Cahill Thomas Kenneth Cahill engaged in professional misconduct in that, over an extended period, fraudulently evaded fares on Sydney trains and State Transit Authority buses by the unauthorized use of a Travel Pass issued by the Australian Defence Force. In this Statement of Agreed Facts: The Solicitor means Thomas Kenneth Cahill. The travel pass means the ex-defence force travel pass issued in the name of Mr Clayton Smith The LPUL means the Legal Profession Uniform Law (NSW) 2014 1. During the period between some time in 2008 and 22 May 2014 the Solicitor used a travel pass, of which he was not the named holder, to travel on State Transit Authority buses and Sydney Trains. 2. The Solicitor knew he was not entitled to use the pass. 3. The Solicitor was stopped by Police whilst attempting to use the travel pass to travel by bus. Subsequently he was arrested and charged with the offence of dishonestly obtaining financial advantage etc by deception pursuant to section 192 e (1) (b) of the Crimes Act 1900. 4. The period of use of the travel pass in the charge was between 1 October 2013 and 22 May 2014. 5. On 7 January 2015 the Local Court Magistrate found the offence proved but without proceeding to a conviction directed the Solicitor enter into a good behaviour bond pursuant to Section 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999. 6. The Solicitor paid compensation in the amount of $171.00 to Sydney Trains and $895.40 to State Transit Authority Buses. 7. The named holder of the travel pass was an ex-serving member of the Australian Defence Force, Mr Clayton Smith. 8. The Solicitor disclosed the finding against him by the Court voluntarily to the Law Society by Notice dated 6 May 2015. 9. In consequence of such disclosure and the enquiry by the Law Society which followed, the Law Society initiated a complaint under Section 266 of the LPUL, details of which were notified to the Solicitor on 3 September 2015. 10. By letter dated 24 December 2015 from the Solicitor's legal representative Mr Thomas Arthur Williams to the Law Society, the Solicitor: a) Accepted without reservation that his conduct constituted professional misconduct; and b) Disclosed to the Law Society that he had the benefit of use of the travel pass since at least 2008 and possibly earlier. 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: 10 January 2017