Solicitors:
Law Society of New South Wales (Applicant)
File Number(s): 2021/292413
[2]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[3]
Judgment (EX TEMPORE)
BRERETON JA: The respondent David Vincent Clifton, a solicitor, was admitted to practice as such in this State on 6 April 2001, and at relevant times was the sole principal of a practice known as Clifton Legal in Armidale. That practice operated, as is conventional, a trust account, an office account, and a service account. It employed a bookkeeper to whom was delegated all of the practice's day to day accounting activities, including effecting withdrawals and transfers from the trust account.
In early 2018, the practice was in serious cashflow difficulty. The bookkeeper suggested to Mr Clifton that they use some of the funds held in the trust account, on behalf of an estate called the Tregurtha Estate, to pay debts of the law practice, and create false invoices to cover the transfers. The respondent agreed to that proposal and the bookkeeper proceeded to implement it. As a result, between 21 May 2018 and 20 September 2018, seven withdrawals totalling $51,303 were made from the trust account; four withdrawals totalling approximately $32,000 from funds explicitly held on trust for the Tregurtha Estate, and the remaining three withdrawals totalling approximately $19,000 from the "general" trust account. In respect of the withdrawals from the Tregurtha Estate account, false tax invoices were created to give the appearance of legitimacy to the transfers.
These transactions resulted in contraventions of Legal Profession Uniform Law (NSW) ("LPUL"), ss 135, 138(1)(b), 145(1), 146, 147(2)(a), 148, and, consequently, 297(1), and Legal Profession Uniform General Rules 2015 (NSW), rr 45 and 47.
By 25 October 2018, the sum of $51,303 had been restored to the trust account.
The defalcations were discovered by a routine trust account inspection in March 2019, consequent upon which the applicant, the Council of the Law Society of New South Wales, commenced disciplinary proceedings in the Occupational Division of the Civil and Administrative Tribunal ("NCAT"). The solicitor admitted the conduct alleged against him, and that he was guilty of professional misconduct in those respects, but opposed the order sought by the applicant that his name be removed from the roll, submitting that a lesser penalty, in particular a reprimand, was appropriate. The Tribunal did not accept his submissions in that respect, concluded that he was not currently fit to practice and that that was likely to be the case indefinitely, and made an order recommending that his name be removed from the Supreme Court roll. [1]
Section 23(1) of the LPUL provides that this Court may order the removal of the name and other particulars of a person from the Supreme Court roll on its own motion, or on the recommendation of the designated local regulatory authority, or, as in this case, on the recommendation of the designated tribunal, the designated tribunal being the Occupational Division of NCAT.
The jurisdiction conferred on this Court by s 23 is a parallel jurisdiction to its inherent jurisdiction in respect of its officers and does not replace that jurisdiction. It supersedes the longstanding statutory arrangements for the discipline of the legal profession which have operated alongside the Court's inherent jurisdiction for many decades. Under previous iterations of that statutory jurisdiction, the power to make disciplinary orders, including an order for the removal of the name of a lawyer from the roll, has been conferred on, successively, the Solicitors Statutory Committee, then the Legal Profession Disciplinary Tribunal, then the Legal Services Tribunal, then the Legal Services Division of the Administrative Decisions Tribunal, and ultimately the Occupational Division of NCAT. The current regime, no doubt partly in the interests of achieving interstate uniformity, and perhaps partly recognising that it is fitting that this Court as the keeper of the roll should be the ultimate determinant of whether a lawyer's name is removed from the roll, no longer confers that ultimate power on the Tribunal, but reserves it to the Court, albeit upon the recommendation of the Tribunal.
However, I do not consider that this change was intended to work such a fundamental alteration to the statutory disciplinary arrangements as would require this Court to revisit, review, or rehear proceedings that have been heard on a final basis by the Tribunal. That view appears to be consistent with the view that has been taken in a number of authorities in this Court. [2]
Particularly in a case such as the present, where a submitting appearance has been filed and no additional evidence has been placed before this Court, there is no reason for this Court to go behind the findings of fact made by the Tribunal, and it may well be that it would be inappropriate for the Court to do so even if additional evidence were filed; however, that is unnecessary to determine in the context of the present case. There is no doubt, however, that, while it may give considerable weight to the view of the specialist tribunal on whose recommendation it is asked to act, this Court should itself be satisfied that it is appropriate that the lawyer's name no longer be on the roll, which is to say in effect that he or she is no longer or not a fit and proper person to be a legal practitioner. [3]
For present purposes, it suffices to act on the critical findings of fact made by the Tribunal, namely that the respondent's conduct was admittedly dishonest, that he did not demonstrate a sufficient or full understanding of the errors of his ways, and that he is not currently fit to practice and that that is likely to be the case indefinitely.
It is also important that it be understood in the profession and in the public that the practically inevitable consequence of the misuse of trust funds by a solicitor trustee is disbarment. [4]
In its Summons, the applicant also sought an order that the name of respondent be removed from the Australian Legal Profession Register. While the power to recommend such an outcome is conferred on the Tribunal as the designated tribunal by LPUL, s 302(1)(f), it did not make any such recommendation. In any event, it is not presently apparent to me that the legislation gives this Court any power to make such an order. In those circumstances, the Court not having been referred to any jurisdictional basis for making such an order, I would decline to do so.
There is no reason why costs should not follow the event.
Accordingly, I propose the following orders:
1. Order that the name of the respondent David Vincent Clifton be removed from the roll kept by the Supreme Court of New South Wales.
2. Order that the respondent pay the applicant's costs.
LEEMING JA: I agree with Brereton JA.
WHITE JA: The applicant did not press its initial claim that the name of the respondent be removed from the Australian Legal Profession Register. In those circumstances, and in the absence of any recommendation by the Tribunal that his name be removed from the Australian Legal Profession Register, I find it unnecessary to express any view as to whether the Court would or would not have power to make such an order. For the reasons given by Brereton JA, it is appropriate that the respondent's name be removed from the roll kept by the Supreme Court. I agree with the orders proposed by Brereton JA.
LEEMING JA: The orders of the Court will therefore be as proposed by Brereton JA.
[4]
Endnotes
Pursuant to LPUL, s 302(1)(f). See Council of the Law Society of New South Wales v Clifton [2021] NSWCATOD 101 at [81], [83] (Senior Members Fairlie and Riordan and General Member Thomson).
See, eg, Council of the Law Society of New South Wales v Leslie [2021] NSWCA 59 at [30] (Macfarlan, White and McCallum JJA) ("Leslie"); Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141 at [22], [25], [32]-[33] (Bell P, Ward and White JJA); and in the Australian Capital Territory, see, eg, Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [17] (Murrell CJ, Loukas-Karlsson J and Walmsley AJ) ("Bandarage"); Law Society of the ACT v Powrie (2017) 12 ACTLR 184 at 203 [79] (Murrell CJ, Burns and Elkaim JJ); [2017] ACTSCFC 4 ("Powrie").
See, eg, A Solicitor v The Council of the Law Society of New South Wales (2004) 216 CLR 253 at 265-266 [15] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); [2004] HCA 1. In the context of LPUL, s 302(1)(f), specifically, and its equivalents in other jurisdictions, see Leslie at [30] (Macfarlan, White and McCallum JJA); Bandarage at [134], [137]-[138], [147] (Murrell CJ, Loukas-Karlsson J and Walmsley AJ); Powrie at 205 [86] (Murrell CJ, Burns and Elkaim JJ); Victorian Legal Services Commissioner v Henderson [2017] VSC 202 at [13] (McDonald J); Victorian Legal Services Commissioner v Horak [2016] VSC 780 at [56]-[57] (McMillan J).
See Dupal v Law Society of New South Wales (Court of Appeal (NSW), Kirby P, Priestley and Handley JJA, 26 April 1990, unrep) at 1-2, 5 (Kirby P), 20-22 (Handley JA; Priestley JA agreeing).
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: 21 December 2021