Council of the Law Society of New South Wales v Dona

reasons for decision 1This is an application by the Council of the Law Society of NSW (the Council) for an order pursuant to s 18 (2) of the Legal Profession Act 2004 (the Act) prohibiting any law practice from employing or paying Noel Dona (Mr Dona) in connection with the legal practice without approval under s 17 of the Act and for costs. 2Sections 17 and 18 of the Act are in the following terms: 17 Associates who are disqualified or convicted persons (3) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be: (a) a disqualified person, or (b) a person who has been convicted of a serious offence, unless the associate is approved by the relevant authority under subsection (3). (4) A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention. (5) The relevant authority to approve a person for the purposes of subsection (1) is: (a) in the case of a disqualified person who is an associate of a barrister-the Bar Council, or (b) in the case of a disqualified person who is an associate of a solicitor-the Law Society Council, or (c) in the case of a person who has been convicted of a serious offence-the Tribunal. (6) If a Council decides to refuse an application by a person for approval under subsection (3) (a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (7) An approval under this section may be subject to specified conditions. (8) A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. Maximum penalty: 100 penalty units. (9) Proceedings for an offence under subsection (6) may only be brought within 6 months after discovery of the offence by the law practice. (10) This section does not apply in circumstances prescribed by the regulations. (11) In this section: lay associate of a law practice has the same meaning as in section 7 (Terms relating to associates and principals of law practices), and includes a consultant to the law practice (however described) who: (a) is not an Australian legal practitioner, and (b) provides legal or related services to the law practice, other than services of a kind prescribed by the regulations. 18 Prohibition on employment of certain lay associates 1. This section applies to a person who is not an Australian legal practitioner and who is or was a lay associate of a law practice that: (a) engages in legal practice principally in this jurisdiction, or (b) employs or employed the person to work principally in this jurisdiction, and so applies whether or not the law practice subsequently ceased to exist or engage in legal practice principally in this jurisdiction and whether or not any person ceases, by death or otherwise, to be a legal practitioner associate of the law practice. 2. On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any law practice from employing or paying in connection with the legal practice engaged in by the law practice a specified person to whom this section applies, if: (a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with that legal practice, or (b) the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct. (3) An order under this section may apply to a specified law practice or specified class of law practices or may apply to law practices generally. (4) An order under this section may be revoked by the Tribunal on application by a Council or the person against whom the order was made. 3In support of her case, Ms Gleeson SC, counsel for the Council, read the affidavits of Anne-Marie Foord 27 March 2013, Cora Groenewegen 14 June 2013, Mark William Tanner 6 May 2013 and Lawson Tanner 24 June 2013. Oral evidence was also given by Mark Tanner and Lawson Taylor both of whom were cross examined by Mr Gray who appeared for Mr Dona. 4The matter had its genesis in a letter dated 16 May 2012 from Hughes and Taylor Solicitors to the Legal Services Commissioner: RE: ESTATE OF THE LATE EDITH MARY BLISS We act for Mr Mark Tanner and Ms Eden Tanner, the joint executors of the Estate of the late Edith Bliss. Mr Tanner was the estranged husband of the deceased and Eden was her eldest daughter. We attach a copy of a loan agreement dated 13 April 2012 between the deceased, a Mr Noel Dona and a company Dgas Investments Pty Limited of which Mr Dona is the sole director and shareholder. Mr Dona is described on the website for Robert Wehbe Partners, Solicitors as the General Manager for that firm. A copy of his profile which was taken from their website is attached. It is clear, we submit, from that profile that Mr Dona has held himself out as having legal qualifications. We also attach a copy of an email sent by Mr Dona to Ms Tanner on 14 May 2012 which refers to him "taking instructions" for a Will from the deceased. Shortly prior to her death, Ms Bliss received a payout pursuant to a Total and Permanent Disablement Policy from an Insurance Company of some $800,000.00. She was interested in investing the majority of the money with Yellow Brick Road. We are instructed that she contacted them and was referred to Mr Noel Dona of Robert Wehbe & Co. It is clear from the attached loan document that Mr Dona witnessed the deceased's signature on that document. There is no provision of independent advice, nor was any mortgage or any other security to be provided which would be normal in these circumstances. We are instructed that Mr Dona was able to gain the confidence of Ms Bliss due to his connection with the legal firm of Robert Wehbe & Partners. Ms Bliss died on 3 May 2012 and was terminally ill at the time of seeing Mr Dona, a fact of which he was well aware. She died less than 3 weeks after the advance was made. We are instructed that she requested the return of the funds shortly after signing the loan document but was told "you don't want to try and do that" by Mr Dona. We have request Mr Dona return the loan funds to the Estate, the beneficiaries of which are Ms Tanner and her three sibling two of whom are minors. The loan monies are by far the greatest asset of the Estate. Our clients have instructed us to make a formal complaint to the Commission on their behalves. 5The loan agreement enclosed with the letter was in these terms: This AGREEMENT dated the 13 day of April 2012 BETWEEN EDITH MARY BLISS 40 The Esplanade Thornleigh NSW 2120 ('the Lender') AND NOEL DONA 85 Isabella Street North Parramatta 2151 ('the Borrower') AND DGAS INVESTMENTS PTY LIMITED CAN 154 404 716 c/- Level 6, 1 Horwood Place Parramatta 2150 ('the Guarantor') WHEREAS A. The Borrower is desirous of borrowing on certain terms the sum of SIX HUNDRED THOUSAND DOLLARS ($600,000.00) (the 'Principal Sum'). B. The Lender has the Principal Sum he wishes to lend to the Borrower on certain terms. IT IS AGREED THAT in consideration of the Lender lending the Borrower the Principal Sum, receipt whereof is hereby acknowledged.