Council of the Law Society of New South Wales v Green

Court of Appeal (NSW)|2022-12-14|Before: Ward P, Kirk JA

Prothonotary of the Supreme Court of New South Wales v Gregory [2017] NSWCA 101 Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 Prothonotary of the Supreme Court of New South Wales v Trimarchi [2003] NSWCA 385 Re Davis (1947) 75 CLR 409; [1947] HCA 53 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 Category: Principal judgment Parties: The Council of the Law Society of New South Wales (Applicant) Barbara Ann Green (Respondent) Representation: Counsel: K C Morgan SC with A Poukchanski (Applicant)

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] Consequent upon the conviction of the respondent (Ms Barbara Ann Green) of dishonestly obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and her sentence for term of imprisonment of two years and three months with a non-parole period of ten months, the applicant (the Council of the Law Society of New South Wales) applied for relief in the inherent jurisdiction of the Court. That relief being: a declaration that the respondent is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Court (roll) pursuant to s 22 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Uniform Law); an order for the removal of the respondent's name from the roll; and an order for costs. Ms Green was admitted as a solicitor in New South Wales in 1974. She held a practising certificate from May 1974 until June 2017, when that certificate was suspended. Ms Green began experiencing financial difficulties during the Global Financial Crisis. In 2011, due to financial difficulties, Ms Green closed her offices and ran the practice from her home without assistance. She later sold her home in an attempt to remedy her financial issues. It was at this time that Ms Green began to play the poker machines. The criminal conduct of which Ms Green was convicted involved the dishonest misappropriation of $987,252.86 held on trust in relation to five separate matters. At the time, Ms Green was the sole principal of the relevant law practice. In addition to the five matters the subject of the criminal charges, there were five further matters in which the respondent failed to maintain proper trust records and in relation to which a reconstruction of the client ledgers was necessary.

The Court (Ward P, Kirk JA and Griffiths AJA) held, granting the relief sought:

The question to be determined in an application for removal from the roll is whether the practitioner is a fit and proper person to remain as a member of the profession. This requires the application of established principles reflecting the purpose of disciplinary proceedings, namely the protection of the public and its confidence in the legal profession. Removal from the roll is the appropriate order where it is demonstrated that the lawyer is presently unfit to practise and that the lawyer is likely to be unfit to practise for the indefinite future: [67] (the Court). In the present case, the criminal conduct to which the respondent pleaded guilty and of which the respondent was convicted was very serious criminal conduct which involved the respondent taking deliberate advantage on numerous occasions of opportunities arising out of her employment, and the trust reposed in her, as a solicitor. The offences involved significant breaches of trust and serious dishonesty. The additional (uncharged) conduct reinforces this conclusion. That conduct also involved grave impropriety - repeated and intentional breaches of the professional rules imposed for the protection of client trust funds: [61], [71] (the Court). Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [33], [45] applied. Re Davis (1947) 75 CLR 409; [1947] HCA 53; Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230, considered.
It is appropriate that there be a formal declaration that the respondent is not a fit and proper person to remain on the roll, in addition to ordering the removal of her name from the roll, insofar as such a declaration serves the public interest: [80] (the Court). New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284, applied.
There is no reason to depart from the usual order as to costs in the present case. The proceedings were commenced due to the respondent's serious misconduct. Orders for the removal of the respondent's name from the roll could not have been made simply by consent; nor is it appropriate for the declaratory relief sought to be made simply on the basis of a consent order to that effect: [100] (the Court).

JUDGMENT

THE COURT: This is an application by the Council of the Law Society of New South Wales (the Law Society), consequential upon the conviction of the respondent, a solicitor (Ms Barbara Ann Green) of criminal conduct for which the respondent was sentenced to a term of imprisonment and having regard to other uncharged conduct, for relief in the inherent jurisdiction of the Court, namely: a declaration that the respondent is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Court (roll) pursuant to s 22 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Uniform Law); an order for the removal of the respondent's name from the roll; and an order for costs.
On 5 July 2022, the respondent filed a submitting appearance save as to costs. Both the respondent and the Law Society have filed submissions on costs.
The application has been dealt with on the papers. For the reasons set out below the Court has determined to grant the relief sought by the Law Society and considers that the respondent should pay the costs of the application.

Factual background

The facts giving rise to the present application are not disputed. They are set out in a detailed statement annexed to the Law Society's submissions (with which the respondent does not cavil). Nevertheless, it is appropriate to set out those facts in some detail given the purpose of applications of this kind, as explained in due course.
The respondent was born in May 1951 and admitted as a lawyer in South Australia in December 1973 and in New South Wales in May 1974. The respondent held a practising certificate issued by the Law Society from 20 May 1974 to 21 June 2017 (when the Law Society suspended her practising certificate).
From 1 July 1981 to 30 June 1982, the respondent was a principal of the law practice known as Hermann, Allanson & Green. From 30 June 1982 to 20 August 1992, the respondent was a principal of the law practice known as Hermann, Morgan & Green. From 1 July 1994 to 16 June 2017, the respondent was the sole principal of the law practice known as Hermann & Green (Law Practice).

Nash complaint - 17 January 2017

On 17 January 2017 a complaint was made on behalf of a client of the respondent (Mr Tony Nash) to the NSW Legal Services Commissioner about the respondent's delay in accounting for money payable to Mr Nash from the settlement of the sale of his property, in relation to which the respondent had acted for him (Nash Complaint).
On 6 February 2017 the NSW Legal Services Commissioner referred the Nash Complaint to the Law Society for investigation.
On 7 June 2017, Mr Chandra Sivakumar, an Investigator from the Law Society's Trust Accounts Department, prepared a report on his investigation regarding the Nash Complaint (Trust Report), in which he concluded that the respondent had engaged in dishonest conduct in relation to trust moneys owed to Mr Nash. The Trust Report also concluded that the respondent had failed to maintain trust records for Mr Nash's matter file from 31 March 2016 onwards.

Suspension of the respondent's practising certificate and appointment of manager to the Law Practice

On 21 June 2017, the Law Society resolved to suspend the respondent's practising certificate and to appoint Mr Richard Flynn as Manager to the Law Practice.
On 6 July 2017, a barrister with whom the respondent had had a longstanding professional relationship (Ms Denise Reid) notified the Law Society (as the respondent had requested her to do) that there were deficits in the Law Practice's trust account (Trust Account). The respondent had written to Ms Reid in the weeks following 22 June 2017 admitting to a "major shortfall in my trust accounts" and recording the respondent's calculations as to the outstanding amounts owed to a number of the respondent's former clients. The respondent requested that Ms Reid assist the former clients to make claims on the Law Society's Fidelity Fund and to ensure that they were compensated (and, as noted, that Ms Reid notify the Law Society of the deficits in the Trust Account).
On 7 July 2017, Ms Reid informed Mr Flynn that the respondent had asked her a few weeks before this to take carriage of several files that had been delivered to Ms Reid. Ms Reid had also been contacted by a client of the Law Practice (Mr Ian Lamb), alleging that he was owed $45,312.17 by the respondent.
On 9 July 2017, Mr Flynn provided the Law Society with a preliminary report, in which he found that the Law Practice's trust reports were not current and that there was $0.14 remaining in the Trust Account.

Appointment of investigator and supervisor of the Trust Account

On 17 August 2017, the Law Society appointed Mr David Lombe as the Investigator and Supervisor of the Trust Account to facilitate the reconstruction of the trust cash books and ledger accounts.
On 13 December 2017, in a meeting with Mr Lombe, the respondent advised that the Trust Account deficiencies originated from a series of financial hardships she had suffered and her attempt to "gamble her way out". The respondent informed Mr Lombe that she had sold her residential property to meet the obligations to her creditors and commenced "juggling trust funds" to disguise the position of each client ledger.
On 21 December 2017, Mr Lombe completed his final report (Lombe Report). The Lombe Report made findings regarding each of the individuals the subject of the conduct set out below.

Reimbursement of clients from the Fidelity Fund

On 13 March 2018 (according to the statement of facts after the respondent's handling of her clients' matters became the subject of criminal charges) the clients were reimbursed through the Law Society's Fidelity Fund.

Criminal charges

The respondent was arrested on 7 January 2019 and charged with dishonestly obtaining financial advantage or causing disadvantage by deception.
On 25 June 2019, the charge was amended to a charge of dishonestly causing a financial disadvantage by the misappropriation of $989,197.86 from the Trust Account between 22 August 2013 and 25 June 2017. The respondent pleaded guilty to the charge in the Local Court and, on 5 September 2019, the respondent was committed for sentence to the District Court.
On 27 July 2020, the respondent was convicted in the District Court of dishonestly obtaining financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and was sentenced to a term of imprisonment of two years and three months with a non-parole period of ten months. The respondent had no prior convictions. The respondent was in due course released on parole and her sentence expired on 27 October 2022.

Conduct the subject of criminal conviction

The Court (see the remarks on sentence - Ex AJL-1) found that between 22 August 2013 and 25 June 2017 the respondent dishonestly misappropriated $987,252.86 held on trust in relation to the following five separate matters. At the time of the criminal conduct, as noted above, the respondent was the sole principal of the Law Practice.
First, an amount of $49,980.73 being part of funds disbursed to the Trust Account in respect of a claim by Mr Manny (for whom the respondent acted) over the estate of his deceased father. Of the funds paid into the Trust Account after probate was issued on 14 August 2013, the sum of $49,980.73 should have remained in trust for Mr Manny and was not paid out to him.
Second, an amount of $589,585.11 representing amounts paid into the Trust Account in relation to the estate of the late Laura McNair (who died in May 2015, leaving a will naming six beneficiaries of whom three were the executors). The respondent was engaged on 9 June 2015 by the executors to act on their behalf to obtain probate and manage the administration of the estate. A costs agreement was completed and permitted costs up to the amount of $9,500.00. Some of the funds received into the Trust Account (the proceeds of the deceased's bank account of some $275,000) were not disbursed to the beneficiaries; other funds (a sum of more than $230,000.00 being the refund of an accommodation deposit) were disbursed to all but one of the six beneficiaries; meanwhile, in November and December 2015 funds were transferred from the Trust Account into four unrelated accounts without authority. On 13 January 2017, proceeds (totalling more than $290,000.00) from the sale of two of the executors' interests in a Nelson Bay property were deposited into the Trust Account. These funds were not disbursed to the beneficiaries. Despite enquiries by one of the executors on 18 March 2017, seeking the urgent finalisation of the estate, and regular contact by the executors seeking release of the balance of the Trust Account (to which the respondent made various excuses), the Lombe Report concluded that an amount of $589,585.11 remained owing to the six beneficiaries of the McNair estate.
Third, an amount of $295,774.85, representing amounts paid into the Trust Account concerning the estate of the late Keith Oxborrow and the sale of his farm, was owing to the deceased's widow, Mrs Oxborrow, for whom the respondent acted in negotiations with her two daughters in this matter. Although a deposit received into the Trust Account on 3 February 2016 of $30,000.00 was paid by the respondent to her client, settlement proceeds of more than $260,000.00 were received into the Trust Account in March 2016, representing the widow's half share of the proceeds from the sale of the property and not paid to the respondent's client. Those funds were received and transferred into two unrelated accounts without proper authority. The Lombe Report concluded that there was more than $295,000.00 left owing to Mrs Oxborrow.
Fourth, an amount of $45,312.17, representing funds received into the Trust Account in April 2017 by the respondent in her capacity as the solicitor acting for Mr Lamb in a family law matter which involved the sale of the family home, but which were not paid to Mr Lamb.
Fifth, an amount of $6,600.00, which was deposited into the respondent's business account for the purpose of preparation of an expert report in relation to a family law matter in which in 2017 the Theakstone family had engaged the respondent to act for them. The report was not provided and the money was not returned to the Theakstone family.
On sentencing, the Court found that the offence involved a significant breach of trust "as the offender was acting as a solicitor for her victims and handling money in such an important position of trust".
The Court noted that the respondent began to experience financial difficulties in 2007 or 2008, after the global financial crisis, when many clients owed her large sums of money that they were unable to or did not pay. In 2011, the respondent was forced to close her office and carry on her practice from home, where she did not have staff to assist her, and, sometime after that the respondent was forced to sell her family home. The Court noted that the respondent had described the sale of her home as a time when "everything changed for her"; and the Court found that, around that time, "[the respondent's] life was unravelling and she started to feel that she did not want to continue in the legal profession. It was at that time that she started to play poker machines".
The Court further found that: … the offender acknowledged in hindsight she quickly became addicted to playing poker machines and she would spend hours playing on the machines … Her friends, her colleagues were not aware of her predicament. She decided not to tell her own family until the court case began because she was very fearful of the way her family would respond to her actions and the ramifications. Through the years that her addiction continued she always thought she would find a way to fix things and would be able to repay the money. In the end she had to accept that it was better to tell someone and face the consequences.
It was noted that the respondent suffered from a number of health conditions, including ongoing effects from a Hepatitis infection and heart problems, for which she took a variety of medications; that the respondent experienced difficulties in her personal relationships that affected her finances, such as a lack of financial support from the father of her children; and that a boyfriend and the respondent's brother separately convinced the respondent to make large investments that caused her large financial losses. The Court noted that the respondent continued to work throughout these episodes and despite her illnesses.
The Court accepted that the respondent was very remorseful and that she regretted the impact of her actions on her clients, but noted that the respondent always knew that the Law Society's Fidelity Fund would be able to reimburse them.
In the absence of evidence, the Court was unable to ascertain whether the respondent's disclosure of her wrongdoing was a voluntary cessation of wrongdoing or the realisation that she was about to be reported. The respondent cooperated fully with the investigation.

Conduct in relation to the criminal matters

Mr Lombe concluded that, in relation to the client accounts that were the subject of the criminal conviction, the respondent: failed to hold trust money exclusively for the person on whose behalf it was received (contrary to ss 138, 145 and 148 of the Uniform Law); failed to maintain trust records, including a client ledger, receipts records or payments records (contrary to rr 36, 47 and 48 of the Legal Profession Uniform General Rules 2015 (NSW) (LPUL Rules) and s 147 of the Uniform Law); failed to hold trust money on trust exclusively for the person on whose behalf it was received and disbursed trust money without client direction, including drawings in favour of the Law Practice, resulting in a deficiency (contrary to r 42 of the LPUL Rules and ss 138, 145 and 148 of the Uniform Law); and, in relation to the McNair estate, transferred trust money via journal between trust ledgers without client authorisation (contrary to r 46 of the LPUL Rules).
In relation to the matter of Mr Manny, the above conduct constituted breaches of the corresponding provisions of the Legal Profession Act 2004 (NSW) and the Legal Profession Regulation 2005 (NSW).
In relation to each of the five client accounts the subject of the criminal conviction, the respondent misappropriated trust funds that had not at that time been returned to the clients.

Additional uncharged conduct

The Lombe Report identified, in addition to the five matters the subject of the criminal charges, five further matters in which the respondent failed to maintain proper trust records and in relation to which a reconstruction of the client ledgers was necessary.
First, in relation to Mr Nash, for whom the respondent acted on the sale of a property in 2016 and who made the initial Nash Complaint, there were a number of transactions in July and September 2016 in which, after instalments of the deposit in relation to the sale were received into the Trust Account, funds were withdrawn and transferred to the Law Practice's Office Account (which had the effect of extinguishing the then overdrawn balances in that account). Then, in November 2016, after the proceeds of sale were deposited into the Trust Account, further moneys were withdrawn and deposited into the Office Account (amounting to approximately $45,000) from which a sum of $12,210.00 was paid to the real estate agent for commission owing. The respondent paid the balance of those funds to Mr Nash and then in January 2017 (from the sale of her own property) paid the remaining amount owing to Mr Nash (such that no further amount was owing to Mr Nash). Nevertheless, although not the subject of criminal charges, the above conduct amounted to a misappropriation of trust funds held on behalf of Mr Nash.
In making the November transactions, the respondent: used trust money for the purposes of the Law Practice without her client's authority; mixed trust money with other money and caused a deficiency in the Trust Account; and misappropriated trust money. The respondent failed to account to Mr Nash for the deposit and settlement sale proceeds until after Mr Nash engaged another legal practice to handle his complaint. Further, the respondent failed to maintain trust records for the file after 31 March 2016, including the client ledger, any receipt records or payment records; and failed to maintain trust records that disclosed the true position in relation to trust money and that could be externally examined.
Second, the respondent acted for Richard and Brenda Cusbert in relation to the sale of the Buckleys Crossing Hotel, which settled on 12 April 2016. Various transactions in relation to the sale (payment of a deposit of $25,627.50 into the Trust Account as a deposit on the sale of the hotel on 7 March 2016 and its later release, and the receipt of sale proceeds of $360,909.61 into the Trust Account on 12 April 2016, with the payment out of a sum of $385,448.78 to the clients in three separate transactions in April and May 2016) were not recorded on the Cusbert client ledger. The respondent recorded an entry in the cash book for the receipt of $33,774.84 on 23 March 2016 (that sum relating to the Oxborrow estate). The applicant says that this sum was intentionally recorded against the Cusbert file in order to hide the defalcation on the Oxborrow file. Further, approximately $30,500.00 in legal costs were drawn from the Cusbert ledger which, although owing, were not recorded in any way.
In relation to the Cusbert matter, the respondent: failed to maintain trust records for the file after 31 March 2016, including client ledgers, reconciliation of trust accounts, and any receipt records or payment records; and failed to maintain trust records that disclosed the true position in relation to trust money and that could be externally examined.
Third, the respondent acted for Tass and Cheryl Theoctistou in the sale and purchase, respectively, of two properties during 2016. The respondent's cash book reconciliation as at 31 March 2016 indicated that $117,300.00 was owed to Tass and Cheryl Theoctistou. Bank statements throughout April and May 2016 recorded a number of transactions and withdrawals relating to the file that were not recorded in the client ledger. The respondent paid the funds owing to Tass and Cheryl Theoctistou but in relation to this matter the respondent again: failed to maintain trust records after 31 March 2016, including client ledgers, reconciliation of trust accounts, and any receipt records or payment records; and failed to maintain trust records that disclosed the true position in relation to trust money and that could be externally examined.
Fourth, the respondent acted for Vincenzo Salinitri. Mr Lombe was unable to obtain a copy of Mr Salinitri's client file. It was reported to Mr Lombe that Mr Salinitri was paying out a balance due to his ex-wife and various debts due to his carer. Mr Lombe identified a number of transactions recorded in the respondent's client ledgers for Mr Salinitri that appeared to him not to be valid. The respondent advised that no money was owing to Mr Salinitri. Mr Lombe therefore concluded that, although Mr Salinitri's client ledger appeared to be overdrawn by $181,985.61, this amount represented deficiencies in other matters that had been recorded incorrectly in Mr Salinitri's ledger.
The respondent transferred trust money between trust ledgers without Mr Salinitri's authorisation; and, in this matter, the respondent again failed to maintain trust records after 31 March 2016, including client ledgers, reconciliation of trust accounts, and any receipt records or payment records, and failed to maintain trust records that disclosed the true position in relation to trust money and that could be externally examined.
The final matter identified by Mr Lombe was one in which the respondent acted for the deceased estate of Priscilla Bochnik in 2016. On 22 June 2016, the respondent recorded a receipt of $63,340.28 into the Trust Account, and subsequently distributed funds to the beneficiaries. Mr Lombe did not consider that any funds remained owing from the deceased estate but the balance could not be fully reconciled because the respondent had not kept adequate records for the file. In this matter, the respondent again failed to maintain trust records after 31 March 2016, including client ledgers, reconciliation of trust accounts, and any receipt records or payment records. She also failed to maintain trust records that disclosed the true position in relation to trust money and that could be externally examined.
Thus, in relation to five further matters (the uncharged conduct), Mr Lombe concluded that, although no funds remained owing to the clients, the respondent: failed to maintain trust records for the file after 31 March 2016, including the client ledger, any receipt records or payment records, records (contrary to rr 36, 47 and 48 of the LPUL Rules and s 147 of the Uniform Law) in relation to all five matters; failed to maintain trust records that disclosed the true position in relation to trust money and that could be externally examined (contrary to rr 36, 42, 46 and 48 of the LPUL Rules and s 147 of the Uniform Law) in relation to all five matters; and, in relation to Mr Salinitri, transferred trust money between trust ledgers without the client's authorisation (contrary to r 46 of the LPUL Rules).

Evidence

The Law Society relies on the affidavit affirmed by Anthony Lean on 31 May 2022 (Mr Lean's first affidavit), and Exhibit AJL-1 thereto, the further affidavit affirmed by Mr Lean on 5 September 2022 (Mr Lean's second affidavit), and a third affidavit affirmed by Mr Lean on 13 October 2022 as to costs (Mr Lean's third affidavit).
The documents in Exhibit AJL-1 are, for the most part, business records of the Law Society subject to the hearsay exception in s 69(2) of the Evidence Act 1995 (NSW), and as such admissible evidence of the relevant fact. However, as the Law Society notes, certain of the documents contained in that exhibit are not business records. The Law Society submits that those documents are admissible for the following reasons.
First, as to the remarks on sentencing (Ex AJL-1, pp 144-160), the Law Society relies upon Hilton v Legal Profession Admission Board [2017] NSWCA 232 (Hilton), where this Court (Bathurst CJ, Leeming JA and Sackville AJA) at [55]-[56] held, with regard to the reasons of another court tendered in disciplinary proceedings against a legal practitioner, that because the practitioner did not object to the tender of the reasons, s 91 of the Evidence Act did not apply (at [56]). The Court (referring to Prothonotary of the Supreme Court of New South Wales v Gregory [2017] NSWCA 101 (Gregory), where it had been held that the absence of objection does not make a judgment admissible - see at [18]-[20], [23]) noted that the court in Gregory had not been taken to a "substantial line of authority" to the effect that "not admissible means not admissible over objection" (at [55]), citing Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 (Perish) at [261]-[272] per the Court (Bathurst CJ, Hoeben CJ at CL and Bellew J) and the authorities discussed there). It is noted that in Morris v Leaney [2022] NSWCA 95 this Court proceeded on the basis, without deciding, that the proposition in Hilton was correct (at [41]) (see also Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [58], where this was referred to by Macfarlan JA as the better view). In Council of the Law Society of New South Wales v Leslie [2021] NSWCA 59 at [30] this Court (Macfarlan, White and McCallum JJA, as her Honour then was) found it was not necessary to decide whether s 91 applied in circumstances where the findings of the Tribunal below were not challenged and the respondent had indicated his consent to the orders sought.
The Law Society here relies on the sentencing remarks for the facts set out in the section of its statement of facts (Annexure A) headed "[c]ircumstances of the conduct as found by the Court" and for the fact (see at [12]) that the respondent's clients were reimbursed through the Law Society's Fidelity fund. The Law Society says that the sentencing remarks are not necessary to establish any of the convicted, or uncharged, conduct here relied upon, as the conduct is fully recorded in the reports prepared on behalf of the Law Society by persons appointed to investigate the affairs of the Law Practice (see Ex AJL-1).
Second, as to the charge certificate (Ex AJL-1 p 213), court attendance notice (Ex AJL-1 p 214), Crown sentence summary (Ex AJL-1 p 210), notice of committal (Ex AJL-1 p 211) and District Court Report (Ex AJL-1 pp 219-220 - relied upon at footnotes 21, 22, and 24 of Annexure A to the Law Society's submissions), it is noted that in Perish (at [261]-[272]), the Court of Criminal Appeal applied the construction of "not admissible" as used in the Evidence Act (to mean "not admissible over objection") to s 59 of the Evidence Act. As noted in Mr Lean's first affidavit at [45], the documents in this category were received in contemplation of the present proceedings and therefore fall within s 59 of the Evidence Act.
None of these documents is relied on by the Law Society to establish the facts of the convicted or uncharged conduct.
The respondent has indicated to the Law Society her consent to the tender of the remarks on sentencing (Exhibit AJL-1 pp 144-160) and the agreed facts on sentencing (Exhibit AJL-1 pp 215-218) (see Mr Lean's second affidavit at [5] and [6]). Further, the respondent agrees, for the purposes of these proceedings, the facts set out in the remarks on sentence and the agreed facts on sentencing. The respondent has also, as noted above, filed a submitting appearance.
In those circumstances, it is appropriate to apply the proposition in Hilton to the admissibility of the documents that are not business records.
On the issue of costs, the respondent filed an affidavit sworn by her on 25 September 2022 and the Law Society filed an affidavit affirmed on 13 October 2022 by Mr Lean (Mr Lean's third affidavit).

Determination

As noted above, the Law Society seeks a declaration and order for the respondent's removal from the roll invoking the inherent jurisdiction of the Supreme Court to supervise legal practitioners listed on the NSW roll of practitioners, which jurisdiction is preserved by ss 264, 22 and 23 of the Uniform Law.
A local regulatory authority such as the Law Society may appear by barrister or solicitor before, and be heard by, any court in any matter affecting it in which it is concerned or interested (s 35 of the Uniform Law). The Law Society is a designated local regulatory authority for the purposes of Ch 2, ss 14 and 23, of the Uniform Law.
Section 23(1)(b) of the Uniform Law provides that the Supreme Court may order the removal of a person's name from the roll on the recommendation of the designated local regulatory authority. The resolution of the Law Society dated 18 February 2021 (see Mr Lean's first affidavit at 47) and the application by summons together constitute such a recommendation.
The question to be determined in an application for removal from the roll is whether the practitioner is a fit and proper person to remain as a member of the profession (Re Davis (1947) 75 CLR 409; [1947] HCA 53 (Re Davis) at 416). This requires the application of established principles reflecting the purpose of disciplinary proceedings, namely the protection of the public and its confidence in the legal profession (see Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 (Thomson) at [12] (per Basten and Meagher JJA and Simpson AJA), and the authorities there cited).
As to the approach to be adopted, proceedings of this kind serve the purpose of maintaining public confidence in the administration of justice; that purpose having aspects of public accountability as well as deterrence. Thus, all the relevant facts of the impugned conduct should therefore be recorded for public knowledge. In Council of the New South Wales Bar Association v Einfeld (2009) 258 ALR 768; [2009] NSWCA 255 (Einfeld), this Court (Allsop P, as his Honour then was, Giles and Hodgson JJA) said (at [16]): When, as happens from time to time, a member of the profession so conducts him or herself as to bring disrepute on to the profession, the administration of justice and the legal system, procedures (such as this hearing) should be unquestionably complete in examination of relevant conduct. To do less may lead to a view (even if misguided) that the system operates without a full opportunity for the public examination of such wrongful conduct. This is not part of any process of punishment; rather, it is as an aspect of protecting the public and fostering the public interest by maintaining full accountability of those in the profession and involved in the administration of justice.
In Einfeld, the appropriate approach was to deal with the evidence as a whole; not separating the facts underlying the offences in respect of which the defendant pleaded guilty and other facts but, rather, examining the facts chronologically in order that they be seen as a coherent whole (see at [18]). That approach was considered necessary in order properly to appreciate the seriousness of the conduct in question and to understand that the conduct was reflective of the defendant's character rather than an uncharacteristic mistake (at [17]). The position taken in Einfeld was confirmed in Gregory (at [15]). See also Prothonotary of the Supreme Court of New South Wales v Alcorn [2007] NSWCA 288 at [50], [66] per Hoeben J (as his Honour then was) with whom Beazley JA (as Her Excellency then was) and McColl JA agreed); Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente) at [20].
Further, it is appropriate that all the matters relevant to the misconduct should be recorded in the event that there is a later application by the legal practitioner for readmission (see Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 at 368; Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 at [38]-[40] per the Court (Basten, Meagher and Ward JJA)).
In Thomson, this Court noted that, although the fact of a criminal conviction may not always disqualify a person from legal practice, the defects of character and the disgrace flowing from the conviction may be incompatible with continued practice (see at [14], citing Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46); and that this consequence follows more readily in relation to crimes involving dishonesty and misappropriation (at [14]).
In Re Davis a crime involving grave dishonesty was considered to be incompatible with fitness for admission to the Bar and, in Thomson, this Court noted that these considerations apply with equal, if not greater, force to practitioners who may seek to work as solicitors, in which capacity they would be entitled to hold trust moneys on behalf of clients (at [15]) and that "[r]epeated misappropriation from any entity that has entrusted a person with control of its funds will expose a characteristic inconsistent with the holding of trust moneys for clients" (see at [17]).
In Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258 at [21] this Court (per Meagher JA, Beazley P (as Her Excellency then was) and Leeming JA agreeing) cited the earlier observations in Barwick v Council of the Law Society of New South Wales (2004) Aust Torts Reports 81-730; [2004] NSWCA 32 at [118] per Ipp JA (Tobias JA and Stein AJA agreeing) (and other cases in which similar statements were made) that: … The trust and confidence which clients place in their solicitors are a basic element of the administration of justice in this country. Violations by legal practitioners of trust accounts betray that trust and harm public confidence in the legal system. This explains the sacrosanct nature of trust accounts and the acute concern that courts have when practitioners, in breach of their fiduciary obligations, misuse trust moneys for their own benefit.
As the applicant has noted, the ordinary consequence of misappropriation of trust funds by a practitioner is removal from the roll (see for example Prothonotary of the Supreme Court of New South Wales v Trimarchi [2003] NSWCA 385; Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at 7 per Gleeson JA with whom Macfarlan JA and Sackville AJA agreed). In Du Pal v The Law Society of New South Wales (Court of Appeal, 26 April 1990, unrep), Kirby P, as his Honour then was, said (at 3-4): The researches of neither counsel before the Court could produce a single case in which, following a finding of misappropriation of trust funds or wilful contravention of s 41(1) of the [Legal Practitioners Act, 1898] Act, the Court had not proceeded to remove the name of the practitioner concerned from the roll of practitioners. [The] normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll.
In Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141, this Court of Appeal (Bell P, Ward JA (as their Honours then were) and White JA) found that an amount of just over $400,000 was a "substantial" amount to have been misappropriated by a practitioner and justified an order removing his name from the roll even though the conduct occurred only once (at [28]).
Removal from the roll is the appropriate order where it is demonstrated both that the lawyer is presently not fit to practise and is likely to be unfit for the indefinite future (see Parente at [33], [45], citing New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 (Cummins) at [25]-[27] per Spigelman CJ (with whom Mason P and Handley JA agreed); Council of the Law Society of New South Wales v Zhukovska (2020)102 NSWLR 655; [2020] NSWCA 163 at [99] per Leeming JA (Macfarlan and McCallum JJA agreeing).
In the present case, the criminal conduct to which the respondent pleaded guilty and of which the respondent was convicted was, on any view of things, very serious criminal conduct (the misappropriation of nearly $1 million from the respondent's clients' trust accounts), which involved the respondent taking deliberate advantage on numerous occasions of opportunities arising out of her employment as a solicitor and the trust and confidence reposed in her as a solicitor. The offences involved significant breaches of trust and serious dishonesty. That alone, in our opinion, establishes that the respondent is not a fit and proper person to practise as a solicitor. However, the additional (uncharged) conduct reinforces this conclusion. That conduct also involved grave impropriety - repeated and intentional breaches of the professional rules imposed for the protection of client trust funds. Considered as a whole, there is no doubt as to the seriousness and deliberate nature of the respondent's conduct.
Spigelman CJ noted in Cummins at [19]-[20] that: Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
The primary public interest is in the maintenance of public confidence in the legal profession by reason of the central role the profession plays in the administration of justice (see Parente at [25]-[26] per Basten and Meagher JJA; and at [44], [49]-[50], [67] per Brereton JA).
As to whether the respondent is likely to remain unfit to practise as a solicitor for the indefinite future, the deliberate and intentional nature of the conduct and the absence of any evidence suggesting that the respondent (though remorseful) has taken steps to address the way in which she might safeguard against such conduct in the future (were she to reapply for admission) leads to the conclusion that the respondent is likely to remain unfit to practise for the indefinite future. In this regard, it may be noted that the respondent does not oppose the substantive order sought (for the removal of her name from the roll); nor does she oppose the making of the declaration sought by the Law Society. It may be unlikely that the respondent would in the future apply for readmission, given the gravity of the convicted conduct and the respondent's age and ill-health. Nevertheless, the applicant notes that there has been no undertaking from the respondent that she will not apply for readmission.
In all the circumstances, this Court considers that it would be inimical to the reputation of the profession, and to public confidence in the integrity of the profession and the administration of justice, for the respondent's name to remain on the roll (adopting the language of Parente at [26], [31]-[34] (per Basten and Meagher JJA), [50], [67]-[68] (per Brereton JA); Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 (Jafari) at [42] per Bell P (as his Honour then was) with whom White JA and Emmett AJA agreed); Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 (Clarke) at [10] per the Court (Basten and Macfarlan JJA and Simpson AJA). An order for the removal of the respondent's name from the roll will therefore be made.
The next issue is whether a declaration of unfitness should be made (noting, though this is by no means determinative, that it is not opposed). In Parente and Clarke a declaration of unfitness was made (see Parente per Basten and Meagher JJA at [14], Brereton JA contra at [45]; Clarke per the Court at [12]). Such declarations were also made in Cummins and in Gregory.
However, in Council of the Law Society of New South Wales v Hislop [2019] NSWCA 302 (Hislop), Brereton JA (with whom Bell ACJ and Barrett AJA agreed - see at [2] and [65] respectively) declined to make a declaration of unfitness (see at [48]) on the basis that a conclusion of unfitness is inherent in the making of an order for removal of the practitioner's name from the roll.
Subsequently, in Jafari, this Court (Bell P, as his Honour then was, White JA and Emmett AJA agreeing) did make such a declaration. At [44], Bell P (referring to his concurrence in Hislop at [2]) adopted on reflection the position articulated by Spigelman CJ in Cummins: I associated myself with the view of Brereton JA that as the fact that a person is "not a fit and proper person to remain on the roll" follows inevitably from an order [of removal] and need not be the subject of a separate declaration, on reflection I prefer and endorse the observations of Spigelman CJ in Cummins at [32] …: "… it is appropriate for the Court to declare in a formal way, and not merely in the reasons for decision, the basis on which [the order for removal] was made. Such a declaration serves the public interest, not least by reaffirming the high regard the Court has for the reputation and standing of the legal profession …"
See also Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 (Payne and McCallum JJA and Beech-Jones J) and Council of the Law Society of New South Wales v Karimjee [2021] NSWCA 179 (Meagher, Payne and McCallum JJA), where declarations of unfitness were made.
For the reasons given by Spigelman CJ in Cummins, it is appropriate that there be a formal declaration that the respondent is not a fit and proper person, in addition to ordering the removal of her name from the roll.

Costs

The remaining issue is as to the costs of the present proceeding. The Law Society seeks an order that the respondent pay the Law Society's costs. The respondent resists that application and seeks an order that each party pay its own costs of the proceeding.
The Law Society, recognising that costs are in the discretion of the Court (see s 98 of the Civil Procedure Act 2005 (NSW)), submits that there is no reason for costs not to follow the event (referring to the usual rule provided for by Uniform Civil Procedure Rules 2005 r 42.1). It is submitted that the respondent's grave and criminal conduct necessitated the commencement of these proceedings; and that the fact that the respondent does not presently hold a practising certificate is not a satisfactory status quo that could have satisfied the public protective purposes served by the orders for removal sought in these proceedings.
The respondent, who filed submissions on costs and an affidavit sworn by her on 25 September 2022, points out in her submissions that she has never opposed the substantive order sought; nor has she opposed the making of the declaration sought (referring to her letter of 6 January 2021 to the Law Society in which she advised that she had no objection to the removal of her name from the roll).
The respondent says that the only communication from the Law Society in the period of more than one year from that letter until the commencement of the proceeding was a telephone call seeking her current address; and that no attempt was made by the Law Society to have this matter dealt with as far as possible in a consensual manner. The respondent says that her attempt to have the matter dealt with on a consensual basis was rejected by the Law Society, thereby making the case more costly.
The respondent says that she has endeavoured to make the matter as non-litigious as possible including by filing a submitting appearance except as to costs; and that, when requested to do so by the Law Society, she co-operated in providing consent to the inclusion of facts. The respondent maintains that the materials filed by the Law Society were unnecessarily prolix and included knowingly incorrect documents (though she does not identify those documents).
It is submitted that the order sought was never intended to have any practical effect, noting that the Law Society closed its investigation "in the public interest" citing the respondent's age, ill-health and criminal conviction as a bar to her return to practice; and noting that the profession and the public had been notified. The respondent points out that she handed in her practising certificate in June 2017 and had never applied to have it reinstated. The respondent also notes that the Law Society has stated in effect that the proceedings were undertaken for public protection.
The respondent says that the costs of the Law Society's closed investigation are not costs of these proceedings; and she submits that in the event that the Court considers that costs should be ordered against her then those costs should be limited to the unavoidable costs of these proceedings being the filing fee and the process server's fee.
In response to the respondent's submissions, the Law Society maintains its position that the present proceeding was commenced as a result of the respondent's conduct; and says that it has incurred only proper costs, including by seeking orders to vindicate the public interest and by filing the evidence necessary for the Court to satisfy itself of the basis for the orders sought.
The Law Society notes that the discretion to order costs is usually exercised in favour of the successful party, including in disciplinary proceedings in the inherent jurisdiction, referring by way of example to Hislop at [53] per Brereton JA, Parente and Clarke. The Law Society refers to the observations in Hislop by Bell ACJ (at [13]) and Brereton JA (at [52]), to the effect that the Law Society is entitled to a payment of costs from the Public Purpose Fund pursuant to the regulatory scheme of the Uniform Law and to the suggestion that the discretion in respect of costs is therefore more flexible than in ordinary inter partes litigation (Hislop at [53] per Brereton JA) but notes that in Hislop the majority agreed that "[d]eparture [from the ordinary rule] is, in general, warranted only if matters connected with the litigation itself and the course it has taken provide good reason to deprive the successful party of the whole or some part of that party's costs" (see at [66] per Barrett AJA, Bell ACJ agreeing at [14], Brereton JA dissenting on the award of costs to the Law Society).
As to the reasons proffered by the respondent for the submission that costs should not be imposed on her, the Law Society responds as follows.
First, as to the fact that the respondent attempted to have the matter dealt with by consent (which was rejected by the Law Society) the Law Society (correctly) points out that the nature of the supervisory jurisdiction is such that an application for an order for removal of the respondent's name from the roll could not be made solely on the basis of the respondent's consent - both because transparency and public accountability are necessary to achieve the objectives of the maintenance of public confidence in the legal profession and its reputation; and because the Court must satisfy itself that it is appropriate to make orders removing the respondent's name from the roll, even if the practitioner concedes that the orders should be made (see Einfeld at [13]; Parente at [5]; Clarke at [8]; and Jafari at [3]).
It is noted that the facts to be considered by the Court may extend beyond those admitted by the defendant (Einfeld at [14]-[18]). Consequently, the Law Society says that, regardless of the respondent's consent, it was necessary for the Court to be provided with the evidence that underlies all of the conduct that is the subject of the application.
The Law Society emphasises that the respondent's consent did not extend to agreeing a statement of facts (referring to the respondent's affidavit at [9]). The Law Society says that all the respondent's relevant conduct was required to be put before the Court and that all of that conduct had to be supported by evidence. It is said that, as a result, the respondent's limited agreement to the facts contained in the Remarks on Sentence and the Agreed Facts in the Crown Case did not obviate the need for further evidence from the Law Society. In particular, it is said that further evidence was required in relation to the conduct referred to as the "uncharged conduct" and also in relation to the Law Society's fulfillment of its duty of procedural fairness towards the respondent in respect of that evidence. Thus, the Law Society cavils with the respondent's submission that its evidence was prolix and rejects the assertion (which it points out is not substantiated), that any documents it filed were "knowingly incorrect".
The Law Society notes that, in Hislop, Bell ACJ said (at [10]) that co-operation by the defendant with professional disciplinary proceedings was not a reason for departure from the usual rule as to costs, because all litigants in the Court have a duty under s 53(3) of the Civil Procedure Act to assist the Court to achieve the overriding purpose of the Act.
Second, as to the respondent's submission that the orders sought were never intended to have any practical effect, the Law Society maintains that it was necessary for the declaration and orders in this matter to be sought.
The Law Society says that any assertion or implication by the respondent that she is no longer practising and/or does not intend to engage in legal practice in the future does not guarantee that she will not seek to engage in legal practice in the future. Further, it is said that the declaration and orders sought will have substantial practical effect even if the respondent does not propose to engage in legal practice in the future. The Law Society says that the removal of the respondent's name from the roll and a declaration that the respondent is not a fit and proper person to remain a member of the profession are not merely symbolic measures; rather, this is a practical disciplinary step which serves to educate the public, discourage others from engaging in similar misconduct and promote public confidence in the integrity of the legal profession. It is noted that it was said in Jafari that where it would be inimical to the reputation of the profession, and public confidence in it, for the name of a person to remain on the roll, it is plain that the person's name must be removed (Jafari at [42] citing Parente at [68]; and see Parente at [44]).
Third, insofar as the respondent has submitted that she has taken steps to minimise the costs of these proceedings, the Law Society accepts that there has been co-operation to some extent (though it says the respondent's co-operation was limited in a material way by her agreement only to the facts underlying her convicted conduct). The Law Society accepts that the costs of the investigation are not costs in these proceedings.
The Law Society says that the Law Society has also sought to limit the costs of these proceedings by seeking the respondent's agreement to facts to reduce the need for evidence and by not opposing the hearing of the matter on the papers (referring to the respondent's affidavit at [9] and Annexures C and E thereto; and to Mr Lean's third affidavit at [3] and [4] and Annexures A and B thereto).
The Law Society also corrects the respondent's assertion that each party is self-represented in these proceedings, noting that there is a solicitor on the record for the Law Society and that the Law Society has engaged counsel to advise and appear for it in the proceedings. The Law Society says that the Law Society's costs of the proceedings include its costs incurred on account of counsel's fees and that there is no reason that any costs order made in the Law Society's favour should be limited to what the respondent submits are the "unavoidable costs" of these proceedings.

Determination as to costs

There is no reason to depart from the usual order as to costs in the present case. As the Law Society has submitted, the need for the proceedings to be commenced was the respondent's serious misconduct. Orders for the removal of the respondent's name from the roll could not have been made simply by consent; nor is it appropriate for the declaratory relief sought to be made simply on the basis of a consent order to that effect. Moreover, the authorities referred to above make clear that it is necessary for the Court to examine carefully the whole of the conduct giving rise to such an application. Therefore, there is no basis for any suggestion that the proceedings were unnecessary.
Both parties, to their credit, have sought to minimise the costs of the proceedings (and even without the acknowledgement by the Law Society the costs of the proceedings would not include the costs of the investigation conducted prior to the commencement of the proceedings - so no limitation on the order for costs of the kind suggested by the respondent is warranted). The respondent's obligation to do so, in furtherance of the overriding statutory mandate for the conduct of proceedings in this Court has already been noted. There is no basis for the complaint that knowingly incorrect documents have been put forward; nor is it necessary to entertain the complaint as to prolixity. If that remains an issue it would be a matter on the assessment of costs.
Finally, it is to be borne in mind that, as Toohey J said in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 563, "… costs are awarded by way of indemnity to the successful party and, expressly or impliedly, … they are not by way of punishment of the unsuccessful party".
Accordingly, there should be an order that the respondent pay the Law Society's costs of the proceeding.

Orders

For the above reasons, the Court makes the following declaration and orders: 1. Declare that the respondent (Barbara Ann Green) is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court in accordance with s 22 of the Legal Profession Uniform Law (NSW) (roll). 2. Order that the name of the respondent be removed from the roll. 3. Order that the respondent pay the applicant's costs of the proceedings.

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: 14 December 2022

Legal Profession Act 2004(NSW)

Legal Profession Regulation 2005(NSW)

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