Peter Kaiser Simpson was the subject of a disciplinary application by the Council of the Law Society of New South Wales alleging that he had been guilty of professional misconduct.
The Law Society of New South Wales contended that the solicitor had breached sections 254 and 255 of the Legal Profession Act 2004 in that he was guilty of misappropriation and delay in the payment of disbursements due to third parties and had that he failed to supervise his employees.
The solicitor admitted the conduct described in the amended particulars relied upon by the Law Society as constituting professional misconduct, however he denied the grounds alleging misappropriation.
The Tribunal set out the amended particulars in respect of each of the grounds of complaint and also the agreed facts.
On 7 September 2009 Mr Napper, a trust account inspector, attended the solicitor’s office and inspected the firm’s accounts. Mr Napper identified unpaid disbursements and delay in having paid such disbursements where funds had been received by the firm into the office account, either by transfer from trust, from settlement monies or otherwise.
On 8 September 2009 Mr Napper spoke to the solicitor and informed him that there were unpaid disbursements which had not been paid. The solicitor said that he was not aware of such disbursements. Mr Napper raised with the solicitor the arrangements in respect of the payment of unpaid disbursements such as fees due to Mr Jurisich of Counsel and Aspen Medical. The solicitor said he would have to check with his staff. The solicitor was not aware of the arrangements relating to Counsel and Aspen Medical. The Law Society accepted the solicitor’s position in relation to that issue.
On the afternoon of the 8th of September 2009, the solicitor spoke to his accounts staff and informed them of the remarks of the trust account inspector. The head accountant informed the solicitor that there were unpaid disbursements and unpaid memorandum of fees and arrangements were in place for the payment in two instances. The solicitor sought details and he was then informed that in respect of monies transferred from trust to office there was $196,476.00 in unpaid disbursements, not including fees to Counsel and Aspen Medical. In respect of monies paid directly into the office account there were $187,558.24 in unpaid disbursements not including fees due to Counsel and Aspen Medical. The total amount owing to Counsel was in the sum of $1,297,796.06.
In June 2008 the head accountant discussed the matter directly with Counsel and as the practice had cash flow problems and an arrangement was made whereby his fees were reduced by way of payment of $20,000.00 per week. The solicitor told the head accountant that this was the first he had ever heard of this arrangement. Similar arrangements had been put in place with Aspen Medical and again the solicitor had not been consulted about this. There was credit in the solicitor’s firm’s favour in the sum of $72,905.01 in respect of Aspen Medical.
The solicitor had in practice a system whereby he had delegated to the head accountant and administration manager authority to sign office cheques. 70 such cheques were issued daily. The solicitor signed trust cheques but if he was absent, with permission of the Society, such cheques were signed by authorised solicitors in his employ.
By way of background, the solicitor had been admitted to practice in 1976 and had 75 staff including 13 employed solicitors. He currently had over 4000 matters.
In respect of each of these matters there was a comprehensive system whereby appropriate disclosure was made pursuant to the provisions of the Legal Profession Act; Motor Accidents Compensation Act and Workplace Injury Management and Workers Compensation Act. In respect of each matter appropriate authorities were obtained from the clients in respect of the payments of costs, disbursements and outlays.
The Administrative Decisions Tribunal, constituted by M Chesterman, Deputy President, M Riordan, Judicial Member and C Bennett, Non-judicial member, referred to the relevant statutory provisions of the Legal Profession Act.
The Tribunal found that the Law Society had established the three grounds being those admitted by the solicitor, namely:
See Re Robb & Anor (1996) 134 FLR 294; Law Society of New South Wales v Davidson  NSWADT 264
Did the solicitor’s conduct involve misappropriation?
It was contended by the Law Society that the conduct of the solicitor amounted to misappropriation. Law Society of New South Wales v McCarthy  NSWADT 198; Council of the Law Society of New South Wales v Doherty  NSWCA 177.
It was contended on behalf of the solicitor that in disciplinary proceedings under the Legal Profession Act “dishonesty” is a “necessary element” in any charge of misappropriation; Council of the Law Society of New South Wales v Clapin  NSWADT 83; Brereton v Legal Service Commissioner  VSC 378.
In the latter judgment, Beryl J observed at :
“For reasons which I will give when I consider the issue of dishonest belief, it is a very different thing to say that a person had a dishonest belief or “well knew” something on the one hand, and that a person “ought to have known” something on the other. The two states of mind are of a different order and legal character and mark the boundary between incompetent or negligent administration on the one hand and misappropriation on the other”.
The Tribunal found that the solicitor was unaware until Mr Napper spoke to him on 8 September 2009 of three (3) crucial aspects of his firm’s management of finds received by it. In such circumstances the Tribunal found at  that the conduct alleged against the solicitor did not amount to “misappropriation”.
The Tribunal reprimanded the solicitor and fined him $8,000.00 and directed him to attend two (2) refresher courses offered by LawCover and pay the applicant’s costs.
For a copy of the decision of the Tribunal please see: www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=155194.
On 24 May 2011 Hoeben J delivered judgment in respect of a claim by Brian Vincent Maloney, a Local Court Magistrate, seeking prepatory relief that the decision of the defendants that he is currently incapacitated for performance of the office of Magistrate is invalid.
A judicial officer can only be removed from office pursuant to s.53 of the Constitution Act 1982, by the Governor on an address from both Houses of Parliament in the same session, seeking removal on the grounds of prudeness, behaviour or incapacity. The removal can only occur if there is a report from the Conduct Division containing an opinion set out in s.28(1)(a) Judicial Officers Act, 1986, NSW (“the Act”).
Magistrate Maloney was subject to four complaints. Three of these relate to events between 17 September 2008 and 23 December 2009. The first two complaints were from individuals who appeared in proceedings before the plaintiff, Mr Tareq Altaranesi (9 January 2009) and Mr Oliver Banovec (17 September 2009). The third complaint was referred to the Conduct Division being from Dr Duncan Wallace concerning mental health hearings which took place before Magistrate Maloney on 3 December 2009 at the Kiloh Centre, Prince of Wales Hospital. The fourth complaint consisted of an image on Magistrate Maloney’s computer in 2002.
Magistrate Maloney had first consulted Dr Olav Nielssen, Psychiatrist, on 15 February 2010. He was diagnosed with a bipolar disorder. Treatment began with Dr Nielssen in February 2010 and there has been no further apparent behaviour or any evidence of hypermanic episode on his part.
The Conduct Division required Magistrate Maloney to be examined by Dr Phillips and Dr O’Dea. The psychiatrists gave joint evidence to the Conduct Division. In the report of 10 January 2010 Dr Nielssen expressed a positive opinion in relation to treatment and that Magistrate Maloney had good insight regarding the nature of the condition and the need for that treatment.
The Conduct Division accepted that the Doctor’s opinion, in the joint report, was that Magistrate Maloney’s mood state is currently stable and that he is currently fit to perform the duties of a judicial officer not being affected by symptoms that might affect his capacity to perform such duties.
However, the Conduct Division went on to find that Magistrate Maloney’s bipolar 2 disorder was a lifelong one requiring continuous treatment and supervision. If not correctly treated he will suffer hypermanic attacks and other changes of mood with increasing frequency and not increasing the intensity. On such a basis he would be clearly incapacitated for his judicial duties.
It was in this context that the Conduct Division formed the opinion that incapacity could justify parliamentary consideration of the removal of Magistrate Maloney from office on the ground of prudent incapacity.
In argument before Justice Hoeben, it was contended that the Conduct Division had fallen into error. His Honour identified those errors at  (a-d) namely that:
Hoeben J ultimately rejected all of the arguments. His Honour at  found “that the conduct division appropriately summarised the effect of the evidence.”
His Honour noted that there was no issue in the proceedings that Magistrate Maloney had been working as a Magistrate since his return to work in August 2010 without complaint and without reoccurrence of symptoms. His Honour found that the evidence of Dr Nielssen, with which the other two Doctors did not disagree was that on balance, Magistrate Maloney would be the subject of at least one (1) further hypermanic episode during his working career as a Magistrate. If not detected immediately so that a gap between recognition and treatment occur, this could lead to behaviour that was unjudicial.
At  His Honour dealt with the finding that Magistrate Maloney had a capacity for denial, self justification and self deception. It was contended on his behalf that there was no evidentiary basis for such finding. His Honour referred to “some of the evidence relating to the screen saver issue and the facial gesture made at the Prince of Wales Hospital, that evidence was given at a time when the Plaintiff was functioning appropriately as a Magistrate receiving treatment“
It is unclear whether His Honour was actually referring to the evidence of Magistrate Maloney given in the Conduct Division about these issues or other evidence given by witnesses at the time of such behaviour. This is an important distinction because both the screen saver and Prince of Wales Hospital matters occurred at a time when Magistrate Maloney was undiagnosed and not receiving treatment. Though his Honour went on to refer to the findings not being about medical issues but were demeanour based findings. The context in which the Conduct Division made such findings specifically relating to the finding that Magistrate Maloney would be unlikely to comply with his treatment regime.
Justice Hoeben dismissed the summons with costs.
Jaskaran Singh, a solicitor of the Supreme Court of New South Wales, was born on 1 October 1954 in Punjad, India. He attended Punjabi University in Patiala and graduated with a Bachelor of Arts in 1975. He enrolled at the Gahrwal University and graduated with a Bachelor of Laws degree in 1976, and worked as a legal practitioner in Nawanshahr.
In November 1987 Mr Singh migrated to Australia with his wife and two children who at that time were 3 and 1 years of age. He obtained work in an Aluminium Processing Factory. He then obtained a job with the State Rail Authority as a train guard where he continued to work for 10 years. Whilst working as a train guard he enrolled in the Legal Practitioners Admission Board course at the University of Sydney and in 1995 he obtained a Diploma of Practical Law Training at the College of Law and on 7 July 1995 he was admitted to the Supreme Court of New South Wales.
Between 4 December 1995 and 1 July 1998 he was registered as a Migration Agent with the Migration Agents Registration Authority.
In or about 1996 he met a George Caristo and as Mr Singh wanted to gain experience in a legal practice he worked with Mr Caristo several days a week without fees. On 16 August 1998 he commenced employment with George Caristo however; he did not receive any wages. The terms of his employment were that Mr Singh would introduce clients to Mr Caristo’s practice, especially those in the Indian community. On 25 November 2001 Mr Singh left the employment of Mr Caristo and was granted an unrestricted practising certificate on 28 November 2001. Thereafter, Mr Singh worked in the garage of his home.
Mr Singh’s eldest son was diagnosed as suffering from schizophrenia. His condition was a very serious one and he was admitted to hospital on a number of occasions over many years. Mr Singh’s son also suffered from significant behavioural problems including violent outbursts and delusional thoughts and was admitted to the Westmead and Cumberland Hospital.
Mr Singh’s son, as is often the case, involving children with disabilities, had a particularly close and loving relationship with his parents and in particular his father. Much of Mr Singh’s time was spent not only trying to cope with conducting a legal practice with limited financial resources but also caring for his significantly disabled son. Apart from his son, Mr Singh’s wife also had a history of quite significant illness and required ongoing medical treatment.
Mr Singh submitted to Mara a statutory declaration dated 30 November 2001 in connection with his Application for Registration as a Migration Agent. In that declaration Mr Singh said that he had not given immigration assistance while not registered other than that which he had declared in the statement.
Mr Singh admitted various grounds in the application by the Law Society and they made findings that Mr Singh was guilty of professional misconduct. The Tribunal noted that Mr Singh had asserted that it was not his intention to mislead MARA and that he was extremely sorry for what had occurred.
Mr Singh relied upon evidence of Dr Olav Nielssen who diagnosed him as suffering from a depressive illness, such diagnosis being dependent upon the history as provided by Mr Singh. Dr Nielssen also relied upon other medical evidence including that of a Dr Wadhera.
The Law Society of New South Wales maintained that the conduct of Mr Singh was such that his name should be removed from the Role of Legal Practitioners. Mr Walsh disputed this approach and submitted that having regard to all of the circumstances of the case the protection of the public does not require that Mr. Singh be struck off the Role. Greg Walsh took the Tribunal to a number of authorities which have been referred to in the judgment such as Law Society of New South Wales v McElvenny  NSWADT 166; Ziems v The Prothonatory of Supreme Court of New South Wales (1967) 97 HCR 279; Fraser v Council of the Law Society of New South Wales (1992) NSWLST 6; Re: Demetrios  LPDR; Law Society of New South Wales v Walsh (unreported decision December 1987).
The Tribunal publicly reprimanded Mr Singh and required him to provide undertakings in respect of Course in Practice Management and Ethics and fined him $2,000.
In this matter Greg Walsh acted for Liljana Stanoevski, a solicitor, who was found by the appeal panel of the Administrative Decision’s Tribunal to have engaged in various significant acts of professional misconduct. See Stanoevski v Law Society of New South Wales ( No. 2) (LSD) 2004 NSW ADTAP 35.
Ms Stanoevski appealed to the Court of Appeal in respect of the decision of professional misconduct and the order removing her name from the Roll of Solicitors: Stanoevski v The Council of the Law Society of New South Wales (2005) NSWCA 428. The Court of Appeal held that there was no reason to set aside the findings of professional misconduct but the process by which the penalty had been arrived at contained a material procedural flaw. The orders were set aside and the matter referred to the Appeal panel. The Appeal panel reconsidered the question of penalty and once again, though by majority rather than unanimously, concluded that the appellant’s name should be removed from the roll: Stanoevski v The Council of the Law Society of New South Wales (ILSD) NSW ADTAP 25.
It was argued on behalf of Ms Stanoevski that the Appeal Panel had fallen into error in applying the incorrect test. Campbell JA at  with whom Hodgson JA and Handley AJA agreed observed that the Appeal Panel’s reference to restoring the appellant to the roll was erroneous as she was already on the roll. His Honour found that the Appeal Panel had not misapprehended its task or applied the wrong test in any way was material in its decision to making reference to both whether the appellant was a fit and proper person to hold a practising certificate and whether the appellant was a fit and proper person to be on the roll.
It was further contended that the onus was on the Law Society to establish that a person whose name was on the roll was not a fit and proper person to remain on it. In particular, that it was necessary for the Law Society to establish that the solicitor is “permanently unfit for practice.”
It was further contended that the Appeal Panel had reversed the onus, and improperly placed an onus on the applicant. Campbell JA from paragraph  onwards analysed the question of the onus of the proof. The Court of Appeal determined that the appeal panel permissibly shifted the evidential onus to the appellant which required that she, in circumstances where proven misconduct had been established in the period 1991 to 1993, produced evidence that gave reason for believing that the situation had changed.
Thus, the appeal was dismissed.
In this matter Greg Walsh appeared for Bronwyn Ann Dwyer, a solicitor, who was the subject of an application that she was guilty of professional misconduct.
The application was based upon two grounds namely that the solicitor failed to inform a Mr Reed, the complainant, that the Court had dismissed proceedings in which he was the plaintiff, because of inactivity; and secondly, she had misled or attempted to mislead the Law Society.
The history of the matter was referred to at length in the judgment of the Administrative Decisions Tribunal handed down on 17 August 2006. The Tribunal consisting of C Vass, Judicial Member; J Currie, Judicial Member; and A O’Neill, Non-Judicial Member heard evidence as to the circumstances in which the solicitor was asked by a partner at her firm, namely Back Schwartz Vaughan, Solicitors, to deal with a notice issued from the Supreme Court in relation to a defamation matter. That notice was pursuant to Part 32A of the Supreme Court Rules.
The articles that gave rise to the action in defamation had been published as long ago as 20 December 1986. The client had instructed Back Schwartz Vaughan in March 1987. These were separate proceedings instituted in October 1987 arising from two publications. One of these matters was settled as long ago as 18 August 1994 by way of a Deed of Settlement and Notice of Discontinuance. The parties to the Deed were the client and the author of the article from a newspaper that had published the article.
Ms Dwyer who had previously not had the carriage of the matter, nor until 1997 had she been employed by the solicitors, was asked on 18 July 2000 to deal with the notice pursuant to Part 32A of the Supreme Court Rules. Ms Dwyer wrote a letter on 19 July 2000 informing the client of the receipt of the Notice and seeking further instructions.
Thereafter the client communicated with the firm of Solicitors that he in effect wished to proceed with the matter and an amount of $2,000.00 was paid on account of costs. On 13 September 2000, the clients matter was dismissed by the Registrar in Chambers. In the latter part of 2000, the solicitor maintained that she had spoken to the client on 2 separate occasions. It was her honestly held belief that this was the position. In 2002 the client attended the solicitor’s office and Ms Dwyer informed him that the matter had been dismissed. She was then made the subject of a complaint and it was her responses to the Law Society that in effect gave rise to the second and more serious ground of the application.
In the course of the hearing, the Tribunal was taken to the Statement by Lord Reid in Rondel v Worsley  1 AC 191 at 227 where it was observed:
“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.”
In the course of submissions, Ms Dwyer’s position was put in these terms:
“The problem that she has, as a legal practitioner and a human being, is that she does have a recollection of that phone call telling Mr Reed that the matter has been dismissed. Memory, as we all know, is not as if a photograph was taken of some event. It is a reconstructive process.”
The Tribunal administered a public reprimand to the solicitor and ordered that she pay the costs of the Counsel of the Law Society of New South Wales.
In this matter Greg Walsh acted for Mr Whiting, a Solicitor who was the subject of a complaint of professional misconduct. The solicitor had procured his wife to affix a signature to wills as witness, falsely asserting that she was present when the testators and the solicitor signed them. The Solicitor conceded the grounds of the complaint and was ultimately fined $5,000.
In this matter Greg Walsh represented Mr Meredith in respect of an application by the Law Society of New South Wales that his name be removed from the Role of Legal Practitioners. Mr Meredith conceded that he had been guilty of professional misconduct in that he had misappropriated monies from his clients as a legal practitioner some years beforehand. His name was removed from the Role.
In this matter Greg Walsh acted for a legal practitioner, namely Liljana Stanoevski, who had her name removed from the Roll of Practitioners by the Administrative Decisions Tribunal. The Appeal Panel of the Administrative Decisions Tribunal upheld the appeal on behalf of Ms Stanoevski in that the Tribunal had failed to take into account a fundamental issue, namely her post-natal depression and sequelae in reaching its findings.
In this matter Greg Walsh represented the respondent, a solicitor, in respect of an application by the Prothonotary of the Supreme Court seeking a declaration that the name of the solicitor be struck off the Role of Solicitors. The solicitor had pleaded guilty to importing a practicable quantity of cocaine and served a sentence of imprisonment. The Prothonotary applied to have her name removed from the Roll of Legal Practitioners on the grounds that a conviction constituted professional misconduct within the meaning of s127(1)(b) of the Legal Profession Act and that she was not a fit and proper person to remain on the roll. The Court found that the solicitor had been drug free for almost 5 years and that the factual matrix of the case was such that the solicitor was not at risk to the public. The application was dismissed for costs.
In this matter Greg Walsh appeared for Robert Douglas West, a solicitor, in relation to a matter before the Administrative Decisions Tribunal, alleging professional misconduct, a breach of s61 of the Legal Profession Act. The solicitor conceded the breach. The Administrative Decisions Tribunal on 24 November 2003 publicly reprimanded the Legal Practitioner and ordered him to pay the Law Society’s costs.
When the proceedings taken by the Legal Services Commissioner came before the Tribunal for hearing on 26 October 1998, Mr Musgrave did not appear. The Tribunal noted that the practitioner had ‘disappeared’ from his place of residence at Coffs Harbour two days before 26 October 1998 and that the Tribunal had found in other proceedings (taken by the Law Society) against the legal practitioner that in the period of his disappearance from 24 October 1998 to 5 November 1998, he was suffering from a dissociative fugue and was not responsible for his actions in impersonating another Solicitor.
The Tribunal however in making its findings of professional misconduct in respect of complaints bought to the Tribunal by the Legal Services Commissioner, did not accept the solicitor’s conduct in respect of which those findings were made was affected by or explained by mental illness.
The Tribunal said at (24) it was “satisfied that on the balance of probabilities, the Solicitor did suffer a dissociative fugue in October, 1998, from the time of his disappearance until sometime about the time of his return to Coffs Harbour on 5 November 1998. This was an episode of illness of short duration.”
The Tribunal was satisfied that on the balance of probabilities that whilst these experiences may in part help to understand the Solicitor’s behaviour, they did not excuse his misconduct, although that misconduct no doubt heightens his distress and anxiety. The Tribunal found that prior to the onset of the dissociative fugue; the solicitor did not have a condition which relieved him of responsibility for his acts.