In this matter Greg Walsh acted for Maria Fitzsimons who was the subject of a complaint of professional misconduct by the Council of the Law Society of New South Wales.
The Council of the Law Society of New South Wales alleged that Maria Fitzsimmons was guilty of professional misconduct on 3 matters, namely:
Maria Fitzsimons is the wife of Christopher Ronald Fitzsimons who employed her as a Solicitor. On 2 December 2005 the sum of $603,097.47 was deposited into the joint account of the Solicitor and her husband and in doing so it was contended by the Law Society that she mis-appropriated that sum. A sum of $603,097.47 funded other withdrawals from the joint account.
The deposit slip was forensically examined by Mr Paul Westwood a forensic doctor and examiner who concluded that it was highly probable that the questioned documents were written by the writer of the M Fitzsimons specimens.
The solicitor was admitted in the Supreme Court of NSW on 19 May 1990. She filed to reply in which she denied the allegations and facts pleaded in the application.
The Law Society relied on affidavits of Raymond Collins, Jean Slayer and Paul Westwood.
There was no dispute between the parties that the monies subject of the deposit into the joint account were misappropriated. The issue was who did the misappropriation?
The solicitor’s husband admitted that he had misappropriated the monies and he had deposited same into the joint account. His evidence was contradicted by Mr Westwood’s evidence and the volume of other evidence which put at issue the accuracy and veracity of his evidence. In particular what was his physical whereabouts on 2 December 2005 and his ability to carry out the alleged actions.
Mr Fitzsimons gave evidence that he was in Sydney on 2 December 2005 and had flown to Cairns on 29 November 2005 at 15:30 on a flight operated by Virgin Airlines. This was confirmed by records produced by that airline. On 2 December 2005 at 12:21 Mr Fitzsimons made a call lasting 30 seconds from Buckham Point (near Cairns) to a number in Sydney. He gave evidence that he was in Cairns in the morning and came to Sydney in the afternoon. He had no independent recollection as to when he left Cairns to come to Sydney.
In cross-examination he conceded he did not have a strong recollection of the period of late November through to December 2005 as he was suffering from a significant psychiatric illness. He agreed that it had been “a very, very long time of madness”.
Mr Fitzsimons gave evidence as to him diverting the call made from Saddle Mountain at 15:04 on 2 December 2005 which placed him in Queensland at about 3.00pm. He gave an explanation that caretakers were responsible for the diversion of calls. He clearly recalled flying from Cairns to Sydney on the afternoon of 2 December and he thought it was a Qantas flight.
Mr Fitzsimons insisted that he deposited the cheque for $603,000 on 2 December 2005 and denied that he was “covering” for his wife.
It was the solicitor’s evidence that she had been relentlessly persecuted by the Law Society in pursuit of a conviction against her husband. She denied that she had deposited the monies and denied that the handwriting on the deposit slips were hers. Mr Raymond Collins was the subject of cross-examination.
The solicitor asserted that her affidavit was true and correct. She informed the Law Society her husband had undergone a brain scan for a diagnosis of “a brain tumour”. She had not seen the results of the scan and she had not attended any specialist doctors appointments with him regarding the brain tumour during the period before 29 November 2005. She denied that she had made a false statement to the Society to the effect that she was “nursing a sick husband full time.”
In cross-examination she asserted that she needed to stop fighting with the Law Society because she had been diagnosed with cancer. She was aware that her husband was subsequently diagnosed with Bipolar Disorder, Alcoholism and a variety of physical and psychological conditions and was a chronic gambler.
The solicitor gave evidence that she was filled with emotion and worry about her husband and was more concerned about his ill health. She agreed that all of her submissions (which she was the author) could not have been right and the inference was that they to some extend had been misleading. She conceded she could have been more frank in her responses to the Society. She now accepted that she misled the Law Society and that conduct was unacceptable.
The Tribunal found that the solicitor had misappropriated the monies and misled the Society.
Greg Walsh submitted to the Tribunal that according to the Brigenshaw doctrine the Tribunal had to be extremely careful in accepting the evidence of Mr Westwood, the handwriting expert, the solicitor’s motive to misappropriate monies and her opportunity to do so. Greg Walsh submitted that there were significant limiting factors to Mr Westwood’s evidence in his reports. The issue of motive was one that the Tribunal ought to be very careful about relying upon as there was evidence of the solicitor and her husband had available funds of $495,000 at the relevant time and that neither she nor her husband were in financial difficulties at that time. See R v Tsingopoulos  VR 676 at 681 Deane J; Plomp v R  110 CLR 234; R v Griffiths (1994) 125 ALR 545; R v Greene (2002) 4 VR 471; Chamberlain v R (No.2) (1984) 153 CLR 521; De Gauchy v R (2002) 211 CLR 85.
The Tribunal observed that for the misappropriation to be established it is necessary that the alleged converter intended to do that which would deprive and impair the owner’s immediate right to possession or the intention to do the act in dealing with the thing, but not wrongful motive is required and it is not necessary that the converter did intend to challenge the owner’s right to possession.
The Tribunal observed that it is not necessary to establish that she knew or believed or intended that her actions were dishonest and what must be established is that she subjectively intended to do the acts that are said to be objectively dishonest by reference to the ordinary standard of reasonable and honest people. See Bell J in Brereton v Legal Services Commissioner  VSC 378.
The Tribunal also considered the decision of Brereton in Council of Law Society of NSW v Clapin  NSWADT 83 at .
The Tribunal ultimately rejected Mr Fitzsimons’ evidence that he deposited the cheque on 2 December 2005 and that he misappropriated the money. The Tribunal made a finding that he was “a fabulist, bombastic person who is quick to give evidence on matters of which he says he has no recollection.” He was a witness who regarding his conduct in misappropriating client’s money as being an achievement and appeared to be proud of that achievement and had no remorse. The Tribunal did not accept his evidence and he returned to Sydney on a Qantas flight on 2 December 2005.
The matter has been stood over for further directions as to penalty.