The course of these proceedings
1LEGAL SERVICES DIVISION (M CHESTERMAN (DEPUTY PRESIDENT), J CURRIE (JUDICIAL MEMBER), J BUTLIN (NON-JUDICIAL MEMBER): On 8 December 2010, the Council of the Law Society of New South Wales ('the Law Society') filed an Application alleging that the Respondent, Kenneth John Rook ('the Solicitor'), while practising as a solicitor, engaged in professional misconduct on the following Grounds:-
Misappropriation
Misleading beneficiaries named in the Will of KJ Primrose
Forging the signature of KJ Primrose on a mortgage
Swearing a false affidavit.
Breach of fiduciary duty.
2Particulars of the alleged conduct were supplied in a schedule to the Application.
3The principal orders sought in the Application were that the name of the Solicitor be removed from the Roll of Local Lawyers and that the Solicitor pay the Law Society's costs of and incidental to these proceedings.
4Also on 8 December 2010, the Law Society filed two affidavits in support of the Application, sworn respectively by its solicitor, Ms Anne-Marie Foord, on 7 December 2010 and by Mr Gavin Connor, an Investigator employed by the Law Society, on 12 November 2010.
5Annexed to Mr Connor's affidavit was a report, dated 16 December 2009, that he had produced following enquiries that he had undertaken into the Solicitor's conduct of matters relating to the Estate of the late Mr K J Primrose.
6In her affidavit, Ms Foord stated that according to the Law Society's records the Solicitor was admitted to practice in New South Wales on 13 July 1979.
7On 11 February 2011, the Solicitor filed a Reply, in which he admitted all the matters particularised in the Application. With regard to paragraphs 1 to 3 of the Particulars to the Application, he alleged that certain payments made by him using a power of attorney given to him by Mr Primrose were made with Mr Primrose's consent. These payments are identified in paragraphs 1 to 3 of the Particulars of Grounds of Complaint reproduced below.
8On 6 July 2011, an Instrument of Consent, which included a statement of the five Grounds of the Application and a section headed 'Particulars of Grounds of Complaint', was filed in the Tribunal. It was executed by the Law Society, the Solicitor and the Legal Services Commissioner.
9The Instrument of Consent stated that the signatories gave their consent to the Tribunal making (a) a finding that the conduct of the solicitor described in the Application and particularised in the Agreed Statement of Facts amounted to professional misconduct and (b) the following orders, by consent:-
Kenneth John Rook is guilty of professional misconduct with respect to the conduct the subject of the five grounds of complaint set out in the agreed statement of facts.
The name of Kenneth John Rook is removed from the Roll of Local Lawyers.
Kenneth John Rook is to pay the costs of the Applicant of and incidental to these proceedings, as agreed or assessed pursuant to the Legal Profession Act 2004.
10The Agreed Statement of Facts set out the following matters under the heading 'Particulars of Grounds of Complaint':-
Power of Attorney
On 14 August 2007 Mr Keith Jack Primrose [Mr Primrose] appointed the Solicitor as his Attorney [the Power of Attorney]. The Power of Attorney was accepted by the Solicitor on 22 August 2007.
At the time of the appointment of the Solicitor as Mr Primrose's Attorney, the Solicitor was a Principal of Bartier Pty Limited [Bartier Perry], a Law Practice. The Solicitor ceased being a Principal of Bartier Perry on 31 March 2008 after which, until he ceased employment with Bartier Perry on 8 December 2009, he was employed as a Solicitor.
Using the Power of Attorney withdrawals were made by the Solicitor from Mr Primrose's bank accounts and were applied to his own purposes.
The Mortgage Advance
On 23 June 2008 the Solicitor caused a mortgage in the sum of $300,000 to be registered over Mr Primrose's property at 81 Queens Road, Connells Point [the Mortgage].
The Mortgage was facilitated by the Solicitor forging the signature of Mr Primrose.
The advance under the Mortgage was appropriated by the Solicitor.
After the death of Mr Primrose his estate [Estate] paid all monies required to discharge the Mortgage.
Estate Primrose
Mr Primrose passed away on 14 July 2008.
The Solicitor was appointed sole Executor and Trustee under the Will of Mr Primrose [Will].
Probate of the Will was granted to the Solicitor on 15 January 2009.
The Solicitor's Affidavit in support of the Summons for Probate of the Will did not disclose:
(i) Certain of the assets of Mr Primrose [Non-disclosed Assets]; or
(ii) Any indebtedness the Solicitor may have had to the Estate from the appropriation of funds of the deceased prior to his death.
The Solicitor appropriated to himself and failed to account to the other beneficiaries of the Estate [Beneficiaries]:
(i) The Non-disclosed Assets; and
(ii) Funds received by him as Executor and Trustee of the Estate of Mr Primrose.
Misleading Beneficiaries
The Solicitor provided to the Beneficiaries a document purporting to be a copy of the Will with an increased number of beneficiaries named therein so as to mislead the Beneficiaries as to the benefit payable to them from the Estate.
11At the hearing before us, which took place on 4 August 2011, Ms Muston represented the Legal Services Commissioner. Through so appearing, pursuant to an entitlement to intervene conferred by section 559(1)(c) of the Legal Profession Act 2004 ('the LP Act'), the Commissioner became a party to the proceedings under section 559(5).
12Mr Pierotti, appearing for the Law Society, tendered unopposed the affidavits sworn by Ms Foord and Mr Connor.
13Mr Torrington of counsel appeared for the Solicitor. He sought leave, which we granted, for the Solicitor to be excused from attending. He did not tender any evidence.
14Mr Pierotti requested us to make orders in terms of those set out in the Instrument of Consent. He drew our attention to passages in Mr Connor's report indicating that the total of the funds misappropriated by the Solicitor (as alleged in Ground 1 of the Application) from the Estate of the late K J Primrose was, on Mr Connor's 'rough estimation', $768,500.
15We were also referred by Mr Pierotti to an 'explanation' by the Solicitor of his conduct, put forward in a letter written by him to the Law Society on 14 May 2010. This was to the effect that he had suffered from a 'gambling addiction' and that when this addiction was 'at its height' he had indulged in gambling 'on a daily basis'. Mr Pierotti pointed out that in the same letter the Solicitor wrote: 'No "explanation" excuses me from my conduct.'
16Mr Pierotti submitted that in view of the very serious matters alleged by the Law Society and admitted by the Solicitor, the Tribunal was bound to make a finding of professional misconduct, to find also that the Solicitor was not a fit and proper person to remain on the Roll and to order that his name be removed from the Roll.
17Ms Muston stated that the Legal Services Commissioner supported this submission. She added that because the Solicitor gave no evidence there were no mitigating circumstances that we could take into account.
18Mr Torrington advised us that the Solicitor did not consider himself to be a fit and proper person to remain on the Roll, because he recognised that his conduct, while attributable to a gambling addiction, was wholly inexcusable. The Solicitor, he said, actively supported the making of the orders set out in the Instrument of Consent.
19Mr Torrington also asked on the Solicitor's behalf that the following matters be recorded: (a) the Solicitor had been removed, with his consent, from trusteeship of the Primrose estate; (b) he had sought help from a consultant psychologist; (c) he was a member of Gamblers Anonymous; and (d) he wished to apologise publicly to the victims of his dishonesty, who were member of his extended family, and to the Tribunal.
[2]
Our decision
20At the conclusion of the hearing, we made orders implementing the terms of the Instrument of Consent. Those orders took effect on the date of the hearing and are reproduced on the cover sheet of this decision.
21We also gave a short outline of the matters that we took into account in deciding that this course of action was appropriate. In slightly expanded form, they are as follows.
22On reviewing the evidence tendered and admitted at the hearing, we find that it adequately substantiates the matters outlined in the Particulars of Grounds of Complaint. We find also that these Particulars provide a sufficient factual basis for each of the five Grounds stated in the Application.
23We consider it to be beyond question that the conduct of the Solicitor described in these Particulars amounts to professional misconduct at common law. The actions of the Solicitor alleged in relation to each of the five Grounds would be regarded as 'disgraceful' and 'dishonourable' by reputable members of the legal profession. The same applies, a fortiori, when those actions are considered in conjunction with each other.
24An order striking off the Roll should only be made when the probability is that the practitioner is permanently unfit to practise: see for example Prothonotary v P [2003] NSWCA 320 at [17(2)]. The Solicitor's conduct demonstrated that, at the time when it occurred, he was not a fit and proper person to remain on the Roll. Since he has tendered no evidence, there is, to quote from the judgment of Moffitt P in Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 9-10, no material to lead us to conclude 'that the past proved unfitness has been changed to fitness'.
25Finally, the evidence discloses no 'exceptional circumstances' such as to preclude a costs order in favour of the Law Society under section 566 of the LP Act.
26At the conclusion of the hearing, we indicated that we would publish written reasons. The present decision constitutes those reasons.
[3]
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: 09 August 2011