Council of the Law Society of NSW v Fitzsimons

R V Greene (2002) 4 VR 471; Chamberlain v R (No. 2) (1984) 153 CLR 521; De Gauchy v R (2002) 211 CLR 85; Re Hodgkiss (1962) SR (NSW) 340; Jones v Dunkel (1959) 101 CLR 298 Texts Cited: Riley, Solicitors Manual: Commentary (ed G Dal Pont: Butterworths, 2005, updated) Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Maria Fitzsimons (Respondent) Representation: Counsel J Gleeson (Applicant) Council of the Law Society of NSW (Applicant) G Walsh & Co (Respondent) File Number(s): 092018

Judgment 1On 15 July 2009 the Council of the Law Society of New South Wales ("the Law Society") filed an Application under the Legal Profession Act 2004 ("the LPA 2004") alleging that the Respondent, Maria Angela Fitzsimons ("the Solicitor") was guilty of professional misconduct on 7 grounds. However, it proceeded on only 3 of those grounds, namely: (1)The Solicitor misappropriated trust monies (See particulars 1A - 1R); (2)The Solicitor misled or attempted to mislead the Law Society (See particulars 1P - 1R and 3MM - 3PP); and (3)The Solicitor made a false Statutory Declaration (see Particulars 1P - 1R); It sought orders that the Solicitor's name be removed from the Roll of Local Lawyers that she pay its costs of and incidental to these proceedings. 2The Application alleged that at all material times the Solicitor was the wife of Christopher Ronald Fitzsimons, who practised as C R Fitzsimons (described in this decision as "the Principal"), and that she was employed in the law practice as a Solicitor. The Solicitor did not dispute those allegations. 3The particulars of the relevant Grounds are summarised below:

1. The Estate Late Mary Phillipson A. The Late Mary Phillipson died on 25 May 2005 and Probate was granted to Helen Dawn Bigwood on 23 November 2005. B. The Principal acted for the executor of the Estate. C. The Estate was bequeathed to the three children of the deceased in equal shares: Frederick Robert Phillipson, Leonard John Phillipson and Helen Dawn Bigwood. Frederick Robert Phillipson had pre-deceased the deceased and his two children received his one-third share in the Estate. D. Ms. Jeanine Bellamy (the solicitor who acted for the children of Frederick Robert Phillipson) had written to the Principal on 24 November 2005, 22 December 2005 and 17 January 2005, without receiving any response. E. The only asset disclosed on the Probate document was a bank account kept with Westpac Banking Corporation, Crows Nest ("the Westpac Account") with an estimated value of $420,000.00. F. There was an additional asset not disclosed on the Probate document, a $179,044.44 cheque drawn payable to the deceased from Amity. G. The funds received from Amity ($179,044.44) were deposited to the Westpac account on 29 July 2005. This increased the funds in the account with interest to $603,097.47 when the account was closed on 30 November 2005. H. The balance in that account when closed ($603,097.47) was withdrawn from the account on 30 November 2005 by cheque payable to C.R. Fitzsimons Trust Account and forwarded to the Principal. The sum of $603,097.47 was deposited into the joint account on 2 December 2005 by the Solicitor by way of a deposit slip ("the deposit slip"). J. In doing so, the Solicitor misappropriated the sum of $603,097.47. K. The balance in the joint account on 1 December 2005 (prior to the deposit of $603,097.47) was $97,651.36, but there was an unpresented cheque drawn against these funds of $92,377.67. The represented cheque was a distribution in respect of the Estate Nettelbeck. L. On 1 December 2005, $190,139.49 (being trust money received re. R. Walsh) was also deposited into the account. M. The funds of $603,097.47 funded other withdrawals from the joint account. After two further deposits totalling $3,600.00 the balance to the credit of the joint account as at 23 January 2006 was $48.36. N. There is an amount disbursed from the joint account which is unidentified; being a withdrawal of $91,539.24 made through the Smithfield branch on 13 December 2005. O. The amount unaccounted for in relation to the Estate is the sum of $603,097.47 less the proper costs of the Principal. P. By letter dated 14 September 2007, the Solicitor advised the Society that she did not deposit the sum of $603,097.47 into the joint account. This statement was false (and) misleading. Q. On 19 September 2007, the Solicitor swore a statutory declaration, deposing that the handwriting on the deposit slip was not her handwriting, and she did not know whose handwriting it was. These statements were false and misleading. R. The deposit slip was subsequently forensically examined by Mr Paul Westwood (forensic document examiner), who concluded that "it is highly probable that the questioned documents... were written by the writer of the M Fitzsimons specimens". S. In February 2006, Ms. Janine Bellamy informed the receiver that her client had received a cheque from the Solicitor representing her entitlement.

Relevant Legislation 4Section 497(1) provides (relevantly): (1) For the purposes of this Act: "Professional misconduct" includes: (a) Unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) Conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. Section 498 provides (relevantly): (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) Conduct consisting of a contravention of this Act, the regulations or the legal profession rules, ... (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. Section 676 provides (relevantly): (2) An Australian lawyer must not mislead an investigator or a Council in the exercise of: (a) any power or function under this Chapter, or (b) any power or function under a provision of a corresponding law that corresponds to this Chapter. ... (4) An Australian lawyer who contravenes subsection (2) ... is guilty of professional misconduct.

The Evidence 5The Solicitor was admitted as a Solicitor of the Supreme Court of New South Wales on 18 May 1990. The Solicitor did not dispute this statement, but she filed a Reply in which denied all other allegations and facts that were pleaded in the Application. 6The Law Society relied upon affidavits sworn by Raymond John Collins on 9 July 2009; Jean Sayer on 1 July 2009; Paul Denison Westwood on 1 June 2009 and 18 April 2012 and the handwriting charts/samples that he relied upon in expressing his opinion as an expert; Sasha Pesic on 17 July 2012 and Adam Gelfe on 17 July 2012. These were admitted into evidence, subject to Mr Collins and Mr Westwood being required for cross-examination. 7The Solicitor relied upon affidavits that she swore on 30 January 2012 and 28 May 2012, as well as affidavits sworn by the Principal on 28 January 2012, 27 May 2012 and 29 May 2012; and Gregory Walsh on 2 April 2012. These were admitted into evidence subject to the Solicitor and the Principal being required for cross-examination. She also relied on character evidence provided by way of affidavits sworn by James Lyons on 11 April 2012; Grace Losurdo on 11 April 2012; Betty Losurdo on 12 April 2012; Terence Carver on 10 April 2012; Jeremy Rhodes on 17 April 2012 and John Maguire on 23 April 2012, as well as a Statement from Patsy Rowe. 8While the Solicitor also filed and served Affidavits sworn by both her daughters, but were required to attend for cross-examination by the Law Society but neither did so and their affidavits were not read. 9The Law Society invited the Tribunal to draw an inference in accordance with the decision in Jones v Dunkel (1959) 101 CLR 298, that their evidence would not have assisted the Solicitor and submitted that this was especially significant in the case of the daughter, Louisa, as she was at the Fitzsimons' apartment on the morning of 29 November 2005 and could have given evidence regarding the movements of the Solicitor and the Principal. 10Mr Walsh advised the Tribunal that on short notice he had retained a handwriting expert, Mr Doubedat, and had arranged for him to attend the hearing. The Tribunal suggested that the experts should confer with a view to possibly narrowing the areas of dispute in their evidence. However, Mr Walsh stated that he would prefer that Mr Westwood give his evidence and be cross-examined in Mr Doubedat's presence, after which he would confer further with the Solicitor and Mr Doubedat and a decision would be made as to whether any expert evidence would be presented in the Solicitor's case. The matter proceeded on that basis.

Ground 1 - The Solicitor misappropriated trust monies 11The Law Society asserted that the alleged misappropriation occurred in the context of its notification to the Principal on about 25 November 2005 that it had received a complaint that he had misappropriated funds of the estate of the late Myra Irene Nettelbeck and his subsequent flight to Cairns on 29 November 2005, and that it concerned the non-payment of three charitable beneficiaries of that estate of an amount totalling approximately $277,000.00. It further alleged that an amount of $603,097.47, being funds in the estate of the late Mary Phillipson, was withdrawn from a bank account that formed part of the estate and deposited into an account in the joint names of the Solicitor and the Principal ('the joint account') and that on 2 December 2005 the Solicitor deposited a bank cheque (dated 30 November 2005 and payable to CR Fitzsimons Trust Account in an amount of $603,097.47) into the joint account. In doing so she misappropriated the money. 12There is no dispute that the monies were misappropriated, but there is a dispute as to who did the misappropriation. The Solicitor disputes that she misappropriated the money and deposited it into the joint account. Further, while the Principal asserts that he misappropriated the money and deposited it into the joint account, his evidence is contradicted by Mr Westwood's evidence and a volume of other evidence that casts significant doubts on the accuracy and veracity of his evidence. This is particularly the case in relation to his evidence regarding his physical location on 2 December 2005 and his ability to do carry out his alleged actions. 13The Law Society relied upon the expert evidence of Paul Denison Westwood, Forensic Document Examiner. He expressed the opinion that it was 'highly probable' that the Solicitor and not the Principal was 'the likely author' of the bank deposit slips dated 29 November 2005 and 2 December 2005. He referred us to Appendix B of his report dated 13 March 2008 in which he defined "highly probable (qualified positive conclusion) as follows: I am almost certain that the questioned writing/signature was written by the writer of the specimens, However, some limiting factor, often the amount of writing in question or when the questioned document is a reproduction, has reduced the level of certainty attainable, and I cannot entirely eliminate the possibility of this being another person's writing, but consider this to be highly unlikely. 14Mr Walsh cross-examined Mr Westwood at some length on matters that included the size/extent of the handwriting specimens that he relied upon in forming his opinion and, in particular regarding his opinion that the specimen handwriting in a document marked "F5" (which he attributed to the Solicitor) was written by one person. However, we note that the witness had addressed the latter issue in his further report dated 17 April 2012 and that he stated that this did not cause him to alter his opinion concerning the authorship of the relevant bank deposit slips as he did not take specimen document F5 into account for that purpose. He maintained that view in cross-examination. 15The Principal (Christopher Ronald Fitzsimons) was called and sworn. Mr Walsh questioned him about a cheque that was drawn payable to M Roberts in the sum of $100,968.21. The Principal said that he was aware of the circumstances in which that cheque was drawn and that Mrs Roberts had been a beneficiary in a deceased estate. He stated (relevantly): ... I had deposited her money or the estate money into that account that entitles C R and M A Fitzsimons xxxx xxxx xxxx. I had also - that is December '05. In the second half of 2005 I went to the Commonwealth Bank at Chatswood and I opened a trust account under the name of C R Fitzsimons trust account. That was a legitimate trust account but it was not one that I reported to the Law Society that I had... And I was pumping clients' money into what one might call an unofficial or unauthorised trust account. The cheque is drawn on the personal account because I was the only signatory to the other or the unauthorised trust account. I did not have - I was in Sydney at the time but I did not have the trust account cheque book.... I was in Sydney at the time and I don't know whether I had left it in Cairns, I don't know whether it was in the Potts Point house or what, but in any event I knew the amount was due to Mrs Roberts. I told my wife to write the cheque on the personal account that she did. I lied to her and told her that I had left the cheque book in Cairns or I didn't quite have it but I'd made an arrangement with the bank for the cheque to be covered. On that basis, she wrote the cheque and it was duly posted. 16The Principal had deposed that he was in Sydney on 2 December 2005 and that he 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). Mr Walsh showed him copies of his Telstra mobile phone records, which indicated that on 2 December 2005 at 12:21 he made a call lasting 30 seconds from Buchan Point (near Cairns) to a number in Sydney. He asserted that he was in Cairns 'in the morning' and that he 'came to Sydney in the afternoon'. However, he said that he 'had no independent recollection of when he left Cairns to come to Sydney'. Nevertheless, he stated: To my recollection, I was probably on - probably on the midday, mid 12:30 flight and it would have been - it would have to be Qantas because for frequent flyer points that was the preferred choice I made when flying. He maintained that the handwriting on the deposit slip dated 2 December 2005 was not that of the Solicitor. 17In cross-examination, the Principal conceded that he 'did not have a strong recollection of the period of late November and through December 2005' and said that he recollected 'some bits, but without reference to these documents to jar my memory, no." He agreed that it had been 'a very, very long time of madness' and that it would hardly be surprising in that circumstance if he did not have a very good memory of exactly what he was doing between late November and late December 2005. 18The Principal stated that he did not have a good memory of what he was doing. He stated: A. No, I don't and there's a reason for that, because the madness was a part of a very - well, at least ten or twelve years of subterfuge, lies, deception, as if I was in - pretend I was in the KGB, CIA, ASIO, you name it I was in it. And with that, superimposed on that, was the kitbag full of masks, so I could put on a face and be anybody I wanted to be. So, for me to bet onto an aeroplane was all part of the game. Yeah, it was terrific. However, he said that he did remember some things such as dyeing his hair and he described that as a desperate act - 'my world was about to break open and I became - panicked, I was desperate' as he was evading contact with the Law Society 'and cops and everybody. My whole world was imploding and everybody and everything was a potential enemy...' 19Ms Gleeson put to the Principal that Telstra's phone records and particularly the call made from Saddle Mountain at 15:04 on 2 December 2005 placed him in Queensland at about 3pm. He disagreed and stated: A.Because when I left the house at Clifton Beach, which is on the northern beaches at Cairns, I diverted the home line to my message bank. The caretaker and his wife, or the manager, manageress of the complex where we were, had access and had a set of keys and had access to the townhouse. They did the gardening, mowed the lawns, did whatever. I was in the air when those calls were - if they were made, if they were made, then I didn't do them because the caretakers may have done them. Secondly, I can't differentiate what is an incoming or an outgoing call diversion but all of these relate to my mobile. He maintained that he had a clear recollection of flying from Cairns to Sydney on the afternoon of 2 December and that he was 'entirely confident' that it was on a Qantas flight. He stated: A. Because that time of the year is summer. It is the peak tourist season up there. Qantas fly in the morning with a Boeing 767 and fly out in the afternoon with a Boeing 767. I don't know about the number of people they can carry but the timetable, given that I've been going there a few times every couple of months since 2002, I'm reasonably familiar with airline schedules and flights and the like, not that I'm preoccupied with it, but the published timetable, flight time Cairns to Sydney, is three and a quarter hours. A 767 can do it in two and a half or two and a quarter, but nothing under. So, if the plane left Cairns - and I've got no recollection of when it did or anything else - but by reconstructing the time, if my last call is at 12:21, for thirty seconds, but it's a fair indication to me that I probably made the call sitting on the plane before take-off. Who I rang, the number doesn't ring a bell, but be that as it may, 12:21 is really 1:21 Sydney time. Add on two hours, is 3:21. Add on a bit, the plane probably arrived in Sydney 3:30, quarter to 4. 20The Principal said that he did not recall when he returned to Cairns and that he 'could have been in Sydney for a week, could have been a bit longer. I know I was back in just before Christmas of 2005.' He said that he did not see the Solicitor during that period, but that he spoke to her and that he thought that he had stayed 'at Potts Point'. 21Ms Gleeson put to the Principal that the Virgin airlines records indicated that at 11:04am on 29 November 2005 he phoned and booked a seat on a flight to Cairns that day and that he did so within a couple of hours of Leo Gore (a Trust Account Inspector) visiting the apartment at Potts Point. However, he denied knowing who Mr Gore was at that time and said that he did not know what was in his report (we note that this was prepared pursuant to Section 270 of the Legal Profession Act 2004). He stated (relevantly): I'd say that the chances of me reading that (Mr Gore's report) in December 2005 when my world collapsed are nil... I was resurrecting darkness. 22Ms Gleeson referred the Principal to the medical report of Dr Hugh Morgan, which he relied upon in the proceedings brought by the Prothonotary of the Supreme Court and annexed to his affidavit in these proceedings, and he confirmed that as far as he was concerned, the history that was taken by Dr Morgan was accurate. The following exchange followed: Q. Could you go to page 88? Do you see paragraph 1.4, Dr Morgan records you as telling him that in November 2005 you received a phone call from the Law Society to say that they had a complaint that you had misappropriated funds? You told Dr Morgan something to that effect? A. Yes. Q. And you told Dr Morgan that it pushed you over the edge? A. Yes. Q. And you told Dr Morgan that the next day you were expecting blue lights and sledge hammers? A. Yes. Q. And that an inspector from the Law Society came and asked you for all the books? A. Yes. Q. Were you present when the Inspector came? A. No. Q. Within two hours of the inspector coming you were at the airport and on a plane to Queensland, is that what you told Dr Morgan? A. Yes. Q. And was that true? A. I don't remember... I can't tell you the flight number or the date. I mean, I do know that after this exploded I went to Cairns. He agreed that this was the account that he gave to Dr Morgan on 3 February 2006, and that he had benefited from some hospitalisation for a few weeks at Northside Clinic at that time. He agreed that he was being medicated at that time and that he had no reason to lie to Dr Morgan, as 'He was my friend. I was depending on him.' He also conceded that when he told Dr Morgan that an inspector from the Law Society had come and asked for the books and within two hours he was on a plane to Queensland, that reflects the true state of affairs, which is that an inspector came to inspect the books, he learnt about that very shortly after it happened and he made arrangements to go to Queensland and that he left the Solicitor at home to deal with things. 23The Principal also agreed that he told Dr Morgan that he was in Queensland 'for three to four weeks' on his own. However, he was not prepared to concede that this was the truth. He stated: A. Well, as to what I told him precisely and what he scientifically wrote down, I don't recall, but in broad terms. I mean, when you go to a psychiatrist and you go to a doctor nothing is done on a whiteboard. The guy is entitled to a history of the patient and that's what I gave him. But in broad terms, it's all true. When pressed, he stated that he did not recall whether he was in Queensland for three to four weeks on his own, although he had told Dr Morgan something to that effect. He agreed that he had used Dr Morgan's report several times since and that he had never suggested that the history that he gave him in that respect wasn't correct. He agreed that he told Dr Morgan that he 'became paranoid, intensely worried' and dyed his hair to change his appearance and that he went to obtain contact lenses. The following exchange occurred: Q. I suggest that what I've just drawn to your attention at paragraph 1.4 is an accurate statement of what you recounted to Dr Morgan in February 2006. Do you think that's likely? A. The particulars of things that happened is (sic) most likely true. The sequence in which they happened I'm sorry I can't say what he wrote down at the time or what his - how full his notes were nor indeed can I precisely tell you verbatim what I told him. Q. I can show you the notes in due course if necessary but at the moment is it fair to say that if this is a complete account of what you told him you did not tell him that you flew back and forwards between Cairns and Sydney in the period from two hours after the inspector came to visit and late December? That's fair, isn't it? A. I don't know. Q. Certainly he hasn't recorded that fact has he? A. It's not there, no. Q. And would you agree that that would be the kind of bizarre behaviour that would be worthy of recording if you were trying to identify whether someone is suffering from a bipolar illness? A. No. 24The Principal further asserted that on 2 December 2005 he received the cheque for $603,000 (from the Phillipson estate) in the following circumstances: A. Prior to that got off the plane to my recollection was about a quarter to four. The day was a Friday. I had no luggage because - except for my laptop because I got off the plane, into a cab. Potts Point to airport is about twenty minutes, half hour... Got out of the cab down past the El Alamein fountain, went to the Potts Point post office, opened the box. There's some mail. One of the things is a cheque which I then walked to the Commonwealth Bank which is 50, 100 metres away and I deposited it. Q. And you deposited that with the deposit slip that is - or with a deposit slip. Is that right? A. Yes. Q. Do you accept that the deposit slip at page 25 of the bundle is the deposit slip that accompanied the cheque when it was deposited? A. Yes. Q. And that's a deposit slip that's personalised in the names of you and your wife? A. Yes. Q. And the deposit slip was written out by Mrs Fitzsimons before the cheque was banked, wasn't it? A. Rubbish. No. Q. Well, you say rubbish but I suggest to you that what you've just said is rubbish, Mr Fitzsimons? A. Madam that is not my handwriting. It is not my wife's handwriting on that deposit slip. Q. I suggest to you that the handwriting with the exception of the (figures) '603,000' in the bottom right-hand corner is all your wife's handwriting, isn't it? A. No. The Principal agreed that he had no record of his alleged flight with Qantas on 2 December 2005, but maintained that he had flown Qantas 'but not the other two (airlines)'. 25Ms Gleeson put to the Principal the matters that were raised by his Solicitor - Mr Dennis Fitzpatrick, in a letter to Ms Sayer, namely: Q. And if you turn to page 92 you see she appears to be addressing an issue which one would expect to be of interest to the receiver which is the location of files for your practice? A. Yes. Q. Paragraph 7 on page 92 says, "On 29 November 2005 our client took about fifteen files to his property in Queensland"? A. It says that, yes. Q. Does that assist you in recalling whether or not you did that? A. No. Q. Do you think that it's likely that your solicitor said that on the basis of your instructions? A. It's highly likely that Dennis Fitzpatrick wrote down in notes what I told him and that I either took them then or subsequently or previously. I just don't know. Q. It's likely, isn't it, that you told Mr Fitzpatrick that on 29 November 2005, you took about fifteen files to your property in Queensland, isn't it? A. To my mind that is unlikely because if it was Qantas - if I flew Qantas it would not be a problem with weight and those things can be heavy, but if it was Virgin I would have to pay a lot. So, I'm sorry, I just - I don't know. Q. Now paragraph 8 of that letter goes on to say that the fifteen files were of completed matters except for tidying up. "Our client intended to do that tidying up in his property at Clifton Beach." Did you say that to Mr Fitzpatrick? A. Probably. Q. And Mr Fitzpatrick goes on to say, "He remained at Clifton Beach property until 23 December 2005." Did you say that to Mr Fitzpatrick? A. I don't remember that. Q. Well, would you agree with me that on the basis of this letter it is likely that you did say that to Mr Fitzpatrick> A. I'm guessing. Q. Do you think you could do better than that? A. I'm afraid not. Q. You as a person who puts yourself forward as someone who ought to hold a practising certificate are not prepared to accept that it's likely that you told Mr Fitzpatrick that you remained at the Clifton Beach property until 23 December 2005? A. Today, I'm speculating. As at then, five, six and a half years ago, I'm sorry, I can't assist you. Q. And that's an honest answer? A. Are you telling me? Q. Is that an honest answer? A. Yes 26However, in response to subsequent questioning from the Tribunal, the Principal agreed with the proposition that if Mr Fitzpatrick had authored a letter to the Receiver on his instructions and had made representations, we could be satisfied that the instructions that he gave Mr Fitzpatrick were accurate. However, he added that he has 'no independent recollection of meeting with Mr Fitzpatrick" and stated: I regard the letter as accurate and if Dennis wrote that it most likely is accurate because he's not the sort of person to tamper with the truth. I can't specifically recall the meeting at his office or wherever it was and what instructions I did give him. Nevertheless, he insisted that he recalled depositing the cheque for $603,000 on 2 December 2005 and he denied that he was 'covering for' the Solicitor. 27In his affidavit sworn on 27 May 2012, the Principal stated that on 17 November 2005 he flew from Sydney to Cairns and he returned on 24 November 2005. On 29 November 2005 he flew from Sydney to Cairns and that he flew from Cairns to Sydney on 2 December 2005 and that he then flew back to Cairns on 5 December 2005. He cited as evidence of his movements a summary of his AMEX account transactions for the 2006 financial year. He deposed as follows: ...The flights referred to above ... do not appear in the American Express list because I did not always use American Express to pay for tickets as I often charged other credit cards and paid cash at the service counter of the applicable airline company at airports. However, we note that he did not tender any account summaries from any of these 'other credit cards' or any receipts, boarding passes or e-ticket printouts to support his allegations. 28In relation to this issue, we refer to the evidence of Sasha Pesic, an officer with Air Services Australia that the only Qantas flight that arrived in Sydney on the afternoon of 2 December 2005 arrived at 16:35. Mr Pesic was not required to attend for cross-examination and his evidence was not challenged by the Solicitor. Nevertheless, the Principal sought to refute Mr Pesic's evidence, as follows: ... (a) There is nothing to indicate whether or not I was a passenger on any flight. (b) The departure and arrival times are not stated to be either from a timetable or the pilot's log. (c) The type of aircraft is not shown. 12. In respect of my coming to Sydney on 2 December 2005 - (a) I have no independent recollection of my movements. (b) Whether I paid cash for my tickets, charged to a credit card or redeemed frequent flyer points, I do not know. However when I paid cash for tickets I did not always register those flights for Frequent Flyer points. Sometimes I paid for tickets part on credit and part by cash. He also asserted that since about 2000 he has held a Keycard that had been issued to his daughter, Louisa, by the Commonwealth Bank of Australia and that he used this to withdraw the sum of $200 at an ATM located at Liverpool and Castlereagh Street, Sydney on 2 December 2005. He also stated that he made a purchase at Clifton Beach Post Office on 5 December 2005 after he had returned to Cairns from Sydney that day. 29In cross-examination, the Principal maintained that on 29 November 2005 he had deposited the cheque (drawn for him by his daughter in the sum of 277,000-odd) to the joint account at the Potts Point branch of the Commonwealth Bank and that this was deposited with a personalised deposit slip (although he had deposed that this occurred on 28 November 2005). He disputed that the Solicitor had written out the deposit slip and stated: ...I went to the bank sometime between 9:30 and 10am on my way up to the hospital. I went to - left home, went up to the bank, put the cheque in, walked the 200 or so metres back home. My wife drove me up to St Vincent's, tipped me out and that was that. 30In relation to the mobile phone calls, we note that the evidence of Mr Gelfe (of Telstra) was that the call initiated at 15:04 on 2 December 2005 in the Saddle Mountain region was made from the Principal's mobile phone. We note that there is no evidence that he had lost or otherwise did not have his mobile phone with him at that time. 31The Tribunal notes that the Amex account summary annexed to the Principal's second affidavit indicate that between 30 November 2005 and 8 December 2005 there were almost daily transactions within the Cairns region. There is no evidence before us that he either lost his Amex card or provided any other person with an authority to use it during that period and the obvious conclusion is that he made the transactions and was therefore within the Cairns region during that period.

Ground 2 - The Solicitor misled or attempted to mislead the Law Society 32The Solicitor deposed that on or about 29 November 2005 she answered a telephone call from Mr Collins to the Principal and that passed the phone to him. She said that she was not then aware that Mr Collins was the head of the Professional Standards Department of the Law Society. 33Further, she said that on or about 19 December 2005 Mr Collins telephoned again and wanted to speak to the Principal. She stated: I said: 'He is not here he is having medical tests'. He said: 'Well this concerns you too. Your husband will be suspended from practice for misappropriating trust monies. Your practising certificate will also be suspended because the trust monies have gone into your joint account.' I said: 'Which account, the general account?' He said: 'No your joint account CBA Martin Place. Now will you tell me which hospital he is at having tests?' I said: 'No'. She stated that Mr Collins then hung up. 34The Solicitor also stated that on 30 December 2005 she received a phone call from Mr Collins to meet him outside 'our home unit building in Potts Point' at about 12 noon to be served with Leo Gore's report. He arrived in a taxi but did not alight. She said: I introduced myself and he thrust a binder at me and said words to the effect 'Read this and what you have told me is a load of rubbish'. I did not reply to him. She complained that she was not told by the Law Society that her practising certificate was not suspended and she only learned of this from Ms Sayer's letter dated 16 January 2006. 35The Solicitor also alleged that the Law Society 'relentlessly persecuted me, my sister and my daughters in their pursuit of a conviction against my husband' and that her 'good fame has been slandered by vicious newspaper articles'. She denied that her statement to Mr Collins (that she did not make the deposits and that it was not her handwriting on the deposit slips) was false and misleading and deposed that her Statutory Declaration to that effect was 'the truth'. However, we note that she failed to address her conflicting statements to the Law Society regarding the Principal's health and his whereabouts at the relevant times. 36The Solicitor required Raymond John Collins to attend for cross-examination and he was called and sworn. He gave evidence regarding his telephone conversation with the Principal on 28 November 2005 and read aloud his file note of that conversation, as follows: "28/11/05. Rang solicitor at 8:45. He says he's sending an email now (I gave address). He can't come today, needs to get the tile out of storage. He asked for details of complaint. I said three cheques drawn on trust not apparently received by the charities. He says needs to get file. I asked if you could give bank pass sheets today. Says no. I said very urgent. He not available tomorrow as has a business meeting." 37Mr Collins stated that he attempted to contact the Principal several times on 21 December 2005 (when the Law Society applied to the Supreme Court to appoint a Receiver) and he read his contemporaneous file, as follows: "21/12/05. At approx. 1pm attempted to ring xxxxxxxx several times over next five or so minutes. On each occasion advised 'call could not be connected'. Spoke to Councillor Charles X as he had dealt with a conveyance matter in September. He gave me mobile number and a Queensland fax number for Fitzsimons. Sent fax to C R Fitzsimons... Mobile xxxx xxx xxx (07) or xx xxxxxxxx. He confirmed that he spoke to the Principal at 1:30 that day and had recorded the following conversation: Collins: Can you tell me where you are? Fitzsimons: I am in hospital mate. Collins: I am ringing to tell you I have tried to ring your home but can't make connection so I rang your mobile. Fitzsimons: What is it about? Collins: I have spoken to your wife. It is about the non-payment in the Joss matter. I am ringing to tell you that the Application for a Receiver is listed today at 2pm before Justice Simpson. Fitzsimons: Maria has told me about it. I am starting to stress. I am not going to make it - alright mate. Mr Fitzsimons then hung up. He confirmed that Ms Joss was the Executor of the Estate Nettelbeck. 38In cross-examination, Mr Collins stated that he had spoken to the Principal several days before 25 November 2005 and had asked the Principal to come and see him on Monday (28 November 2005 at 2pm). He recalled speaking to the Solicitor at that time because she answered the phone. He confirmed that on 29 November 2005 he received an email from the Solicitor, advising him that the Principal 'had been unwell since early 2005' and that she provided certain particulars and stated that the Principal was 'undergoing a battery of tests' and was facing "probable surgery" and that he was 'being admitted to hospital that day'. 39However, Mr Collins stated that he did not recall the conversation deposed to by the Solicitor on or about 19 December 2005 and stated that he 'wouldn't have said that.' He also denied the comment attributed to him by the Solicitor on 20 December 2005 and said that he 'wouldn't have said that'. 40Mr Walsh cross-examined Mr Collins as to whether any enquiries were initiated with the Commonwealth Bank regarding the circumstances in which the deposits were made on 29 November 2005 and 2 December 2005. He said that to his recollection, no such steps had been taken. The following exchange occurred: Q. You see I suggest to you that Mrs Fitzsimons had put to the Law Society correspondence that in effect there could have been and she invited the Society to make enquiries of the bank in respect of, for instance, CCTV footage, ascertain who the tellers were, all those basic enquiries that she was suggesting the Law Society could have quite readily undertaken to investigate properly the circumstances of these deposits. Now if you could go to your bundle at 170, RJC 170, you have a letter addressed to Ms Ohm by Mrs Fitzsimons 29 July 2008. Do you see that? A. Yes, yes. Q. If you go down to the third paragraph she raises the issue of request for particulars and she raises, well statements from bank employees and the banking chamber who made the deposit, no statements from witness. I did not make the deposit into the account. Similarly, CCTV footage is of no use because I did not make the deposit. So I suggest that she was raising her practical concerns as to why these fundamental investigations were not undertaken, is that right? A. It would appear, yes I have not - I hadn't seen this letter in - my recollection is I didn't see the letter in 2008. Q. But you would agree with me that those types of enquiries in circumstances in which someone has alleged to have made a deposit could have been readily undertaken by the Society? For instance, CCTV footage, we don't know whether any enquiry has been made of the Commonwealth Bank even up til today as to whether the footage exists on that day or today do we? A. I don't know. I certainly don't know. ... Q. I suggest to you by the nature of the deposit slips and the number on the stamp the identity of the teller could have been readily ascertained as a matter of just common sense? A. I don't know, I just don't know, I'm sorry. 41In response to this evidence, Ms Gleeson advised the Tribunal that her instructing solicitor, Ms Groenewegen, had made enquiries with the Commonwealth Bank regarding CCTV records, as follows: ... Ms Groenwegen has spoken to the bank, someone at the bank who says that CCTV is retained for four to six weeks after its taken. So in this case it would have been necessary for the issue to have been identified by mid-January 2006 at the latest. The evidence before us indicates that this issue was raised after mid-January 2006. We note that Mr Walsh did not require this to be formally proved and we take due notice of it accordingly. 42The Solicitor was required for cross-examination and was called and sworn. She stated that her affidavit was true and correct. She was then cross-examined at some length regarding her conflicting statements to the Law Society regarding the Principal's whereabouts and his alleged medical conditions. It was put to her that in her letter dated 16 February 2006, she said that the Principal was in Queensland on 29 November 2005, but that in her letter in February 2009 she denied that he was in Queensland and asserted that he was 'in hospital having a brain scan for a diagnosis of a brain tumour'. When asked if she agreed that the latter statement was not correct, the Solicitor replied: A.Well on the basis of the material, yes, but that's what I believed at the time that I wrote this letter. That was my belief. She sought to explain this by stating that in the meantime, the Principal told her 'look, I came up and back, up and back, and nobody knew that I did' and that she was giving an account of what she had been told by the Principal. She said that she did not see him during that period. The following exchange occurred" Q. And so even as late as 15 February 2009 is it the position that you were trusting Mr Fitzsimons and his version of what happened over your own version in February 2006? A. Possibly, and with experience of what, of his disappearing between 2006 and 2009, he would just disappear, take off, so I had to, I based on that letter on what he had told not only myself, but my daughters. Q. But the inference was that you were - the implication of that paragraph that he was not in Queensland on 29 November and that he went to Queensland on the 4th or 5th, the implication was that he was in Sydney between the 29th and the 4th or 5th, is that not right? A. Possibly that looks as though that was the implication. Q. You were trying to convey in that paragraph that Mr Fitzsimons did not leave for Queensland until 4 or 5 December, weren't you? A. That's what I believed at the time, because I know that my son-in-law drove him to the airport and it's probably from asking other people, and that's what I believed at the time I wrote this letter. Q. Did you look at what you'd said to the Law Society back in February 2006 on that subject? A. When I wrote this letter, no. Q. You didn't think that that would be an important thing to do, knowing how critical this issue was? A. No, no not really, with hindsight, probably, it would've, should've. 43The Solicitor subsequently agreed that although she stated that the Principal had a brain scan for a diagnosis of 'a brain tumour', she had not ever seen the results of a brain scan and she had not attended any specialist doctors' appointments with the Principal regarding a brain tumour during the period before 29 November 2005 and what she told the Law Society about his medical condition was 'based on what he had told me'. However, she disputed that she made a false statement when she told the Law Society on 19 December 2005 that she was 'nursing a sick husband full time'. The following exchange occurred: Q. Mrs Fitzsimons, you were not, in the present tense, as at 19 December, nursing a husband, sick husband, full-time, were you? A. No, because I wasn't. Q. That was a lie, wasn't it? A. It was not a lie. I do not lie. Q. Could you please go to page - A. You're putting words in my mouth. Q. Could you go to page 41 of the cross-examination bundle. And do you see that that's the second page of a three page letter that was signed by you? A. Yes, that's right. Q. Do you see that three-quarters of the way down the page, next to (a), you said 'I am under extreme personal and emotional stress at present, as I am nursing a sick husband full-time.' A. Yes. Q. It was false to say that you were nursing a sick husband full-time, wasn't it? A. I had been nursing a sick husband. Probably not full time, but I had been nursing him. Maybe the word 'full' should not be in there. Q. Well, it's not that it should not be in there; it's that it was a lie to put it in, wasn't it? A. No, no I disagree with you. Q. So you say here today, on your oath, as someone who expects to be regarded as a Solicitor of the Supreme Court, that it was truthful for you to say, on 19 December, that you were nursing a husband full-time. You say that's the truth? A. Yes. Q. I suggest that the reason that you said that you were nursing a sick husband full-time in that letter was that you were trying to protect Mr Fitzsimons from the Law Society. Is that true? A. No, that's not true. Q. And the reason that you also said, falsely, that you were nursing a sick husband full-time, was that you were trying to prevent the Law Society from finding, learning his whereabouts. That's the case, isn't it? A. No, that's not - no, I don't agree with that. Q. You knew by 19 December 2005 that the Law Society was trying to find out where Mr Fitzsimons was, didn't you? A. From the conversation I had with Mr Collins, yes. Q. And you didn't tell Mr Collins where Mr Fitzsimons was, did you? A. No. No, because he was screaming at me down the phone, and he was very rude. Q. So you felt - A. And I wasn't going to tell him anything, when I knew that my husband was in hospital or I thought he was. Q. So what you say is that as at 19 December, you thought that your husband was in hospital in Cairns, is that right? A. No, no. No, no. Sorry, look, I'm getting very confused. 19 December 2005, yes, he would have been in Cairns on the 19th of - as far as I knew. Q. You're saying that you didn't tell Mr Collins where your husband was because he was in hospital, is that right? A. That's right. Yes. Q. So your understanding was that he was in Cairns, is that right? A. No, I don't know what my understanding was. ... Q. This was a very important event in your life, wasn't it? A. In retrospect, no, it wasn't. The very important event in my life was that I stopped fighting with the Law Society when I took on the battle with cancer, and I just don't know. I told the truth at the time, of everything that I have done over the years, to the Law Society. And it's been interpreted as not the truth, I can't say any more than that. 44The Solicitor denied that the Principal told her (on 25 November 2005) that he had misappropriated money from clients. In re-examination, she said that she was aware from the medical evidence that the Principal was subsequently diagnosed with bipolar disorder, alcoholism and a variety of physical and psychological conditions (she deposed to his being a gambler) and said that he had had a problem with alcohol 'for years' and that he was 'hiding bottles around the unit and he was 'just very deceitful'. 45The Tribunal then questioned the Solicitor regarding her conflicting statements to the Law Society, as follows: Q. I don't believe they can be explained on the basis 'It's what I believed at the time'. So what do you want to say about that? A. All I can say is that I didn't lie at the time when I wrote the first one. I didn't lie the second time. I didn't mean to - Q. It's not being suggested that you lied. It's being suggested that your submissions, emails and letters were misleading where you assert knowledge of a particular fact. You would know as a legal practitioner that if you're signing a document and asserting a particular fact you have to have a sound basis for that? A. Yes. Q. Or you're implying that you have a sound basis for asserting that. A. I think that I was just so filled with emotion and worry about my husband at the time, as a legal practitioner I don't even know whether I thought about that aspect of it. I was more concerned about his ill health. Q. Do you agree that because there are such different submissions - A. Yes Q. - they can't all be right? A. No. Q. And therefore some of them are misleading? A. (no audible reply). 46The Solicitor subsequently conceded that she should have been more frank in her statements to the Law Society and that she had not been completely frank when she asserted that the Principal made two or three trips between Sydney and Cairns, because that was not within her personal knowledge and that it was not frank to say on 19 December 2005 that she was 'nursing a sick husband full-time' and it was also not frank for her to have said that 'we have been given a low ... percentage of a success rate by two specialists who had performed removal of the neuroma.' 47The Solicitor said that she now accepted that she had misled the Law Society and that her conduct was unacceptable. She said that she understood that one of the precepts for being a legal practitioner is being absolutely honest and frank and that the whole cornerstone of the legal profession is honesty. We heard the following evidence: Q. Well looking back on the replies that you sent to the Law Society and the concessions that you've made do you accept that you were less than frank, that is you did not display the degree of candour and honesty that was expected of a practitioner at those times? A. Yes. Q. Right? A. Yes. Q. You accept that? A. I do. Q. Now you accept that candour and honesty and the duty to the court and to the community is fundamental to the practice of a legal practitioner? A. Yes. Q. Are you prepared to uphold those essential requirements of a legal practitioner? A. I do and I will. Q. In the process that you've undertaken from 2004 to date, notwithstanding that these concessions have come late in the day, has the process been somewhat of a salutary one to you? A. Yes. Q. So if someone asked you to look at a document for the purposes of signing it what would be your approach today? A. My approach today would be to satisfy myself of the document, ask questions and if I was satisfied I would witness the document. Q. Would you ensure that you'd give proper advice about the terms and conditions of the document, whether it was a mortgage etcetera? A. I have always done that, I have always done that, with the exception of all of this. With a client I have always gone very thoroughly into mortgage documents and I will do that if I re-enter the profession.

Ground 1 - Misappropriation 48On behalf of the Law Society, Ms Gleeson submitted that the Tribunal should be comfortably satisfied based on all of the evidence that the solicitor misappropriated the sum of $603,097.47 in order to conceal other misappropriations from clients of the Principal's practice, as follows: (1)In her statement in February 2006, she said that between 25 and 29 November 2005 she was concerned that the Principal had possibly misappropriated money from the Nettelbeck estate and on 29 November 2005 she reviewed that file; (2)She was also aware that the Principal had asked to borrow money from their daughter and her husband and that they had lent him $277,000.00; and (3)The Principal's evidence was that after he spoke with Mr Collins on 25 November 2005 he told the Solicitor - "I have misappropriated estate money." The Solicitor disputes that he did so; (4)The evidence indicates that on 29 November 2005, the Solicitor drew cheques for $92,377.67 from the joint account in favour of each of the Salvation Army, the Royal NSW Institute for deaf and blind children and the RSPCA and she also signed letters (bearing that date) that were addressed to each of these charities, enclosing the (5)relevant cheque and stating: "A bank cheque for this amount was previously dispatched to you, and there maybe the chance that you have or have not received it. Please check your records, and if you find that this amount has previously been received and credited would you please return the attached cheque to me." (6)Further, on 29 November 2005, she wrote to the Law Society, stating that she had posted cheques to the three charities that morning "from my own monies... In the likely event that the bank's consolidated revenue is holding the money through represented bank cheques, or if the Charities have been paid previously, then I will be seeking restitution." (7)Her motive arose from the need to ensure that there were funds available to cover the two cheques of 2 December 2005 and the cheque of 5 December 2005; (8)That need arose in the context of either her knowledge that the Principal had been misappropriating clients' funds and that it had been necessary to borrow from their daughter in order to cover the cheques that were drawn in favour of the three charitable beneficiaries of the Nettelbeck estate on 29 November 2005. (9)She also had the opportunity to deposit the cheque on 2 December 2005 and her defence, which was to the effect that the Principal 'did it', was been strongly rebutted. (10)Mr Westwood gave a detailed and credible analysis of his reasons for concluding that the Solicitor was the likely author of the relevant joint account bank deposit slips and his evidence had not been refuted by any expert evidence on behalf of the Solicitor. (11)However, the Law Society's case was not solely on Mr Westwood's evidence and its other evidence is summarised below: (a)On three occasions before the issue of the Solicitor depositing the cheque arose, she stated that the Principal was in Cairns from 29 November 2005 until 23 December 2005. (b)In the letter dated 16 March 2006 from Fitzpatrick Solicitors Pty Limited (the Principal's solicitors) to Jean Sayer, the Principal's solicitors stated that on 29 November 2005, the Principal took about fifteen (15) files to his property in Queensland and that he remained at the Clifton Beach property until 23 December 2005; (c)The Principal told Dr Morgan that he 'left his wife to deal with things' on 29 November 2005 and was in Queensland on his own until 22 December 2005; (d)No airline has any record of the Principal flying back to Sydney on 2 December 2005; (e)Mr Gelfe's evidence placed the Principal in the Saddle Mountain region (near Cairns) at 15:04 on 2 December 2005; (f)Accordingly, even if the Principal's evidence that he flew back to Sydney on 2 December 2005 could be accepted, he was adamant that he would have flown with Qantas and the evidence from Mr Pesic (Air Services Australia) was that the Qantas flight did not arrive in Sydney until 16:35; (g)Accordingly, it would be practically impossible for the Principal to have travelled from Sydney Airport to Potts Point Post Office, clear his Post office box and then walk to the Potts Point branch of the Commonwealth Bank and deposit the cheque before that branch closed for business; and (h)The Principal's Amex records indicate almost daily transactions on his credit card between 30 November 2005 and 8 December 2005, with all transactions being effected within the Cairns region. (i)While the Principal asserted that the fact that a withdrawal from his daughter's Keycard account within Sydney CBD on 2 December 2005 was evidence that he was in Sydney at that time, there is no evidence from his daughter that verifies or otherwise corroborates his evidence on this matter. 49Ms Gleeson submitted that the Tribunal could not accept the Principal's evidence generally as he stated that he has no independent recollection of the events in question and his evidence is based upon supposition and/or reconstruction. She described him as 'a fabulist and noted that his manner was 'bombastic' and that he was a person 'who is quick to give evidence on matters of which he says that he has no recollection.' 50Ms Gleeson concluded that to find Ground 1 established, the Tribunal must be satisfied that there was a subjective intention to make the deposits and that there was an objective intention to be dishonest. She submitted that on the evidence before is, both requirements were satisfied. 51On behalf of the solicitor, Mr Walsh submitted that the matters before the Tribunal should not involve a dispositive order. He argued that the background context to the matter involved the Principal who was a chronic alcoholic as well as being an obsessive gambler and mentally ill and he was acting irrationally. 52Mr Walsh argued that because misappropriation is a most-serious matter, the Tribunal should be satisfied to the Briginshaw standard applies to the following matters: (1)Mr Westwood's expert evidence; (2)The Solicitor's motive to misappropriate the monies; (3)The Solicitor's opportunity to misappropriate the monies (and also the Principal's lack of opportunity); and (4)Findings on credit of the Solicitor in giving her evidence. 53Inter alia, Mr Walsh submitted that Mr Westwood's opinion should be rejected. In particular, he submitted: 137 it is submitted that the range of source letters/figures were so limited that the process of expert comparison is accordingly diminished such that less weight can be given to the expert opinion of Mr Westwood. See Makita (Australia) Pty Ltd v Sprowles ([2001] NSWCA 305, per Hayden J). . 138 In this regard, a critical omission of Mr Westwood was ultimately conceded in cross examination as to his omission/failure to disclose in his report, and indeed, in his evidence in chief the significant limitations in respect of the absence of source material for the purposes of determining natural variation of the question writing. 139 Mr Westwood when confronted with the situation sought to lay the blame on those who were qualifying him in that they were not prepared to afford proper financial remuneration for the work required. This was a similar explanation that Mr Westwood gave to Young J in Voros (v Janosne; Estate of Anna Gdyro [2000] NSWSC 1166 (24 November 2000)). 54Mr Walsh referred to the observation of Dixon J in Briginshaw's case, namely: The truth is that, when the law requires the precedented fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison or probability as independent of any belief in its reality. No doubt an opinion that a state of facts exist may be held according to indefinite causation of certainty, and this lead to attempts to define exactly the assertion you required by the law for purposes... In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect references. He concluded that there are significant limiting factors to Mr Westwood's evidence and that when it is properly analysed is found 'wanting'. 55In relation to "motivation", Mr Walsh argued that there was evidence that the Solicitor and the Principal had available funds of $495,000 at the relevant time and that neither she nor the Principal were in financial difficulties at that time. The evidence from the Commonwealth Bank was that the investment home loans facility (drawdown) was settled on 7 November 2005. Therefore, merely because the solicitor drew the three cheques to the charitable beneficiaries from her own monies did not prove that she had the motive to misappropriate the monies. The question is 'what is the motive?' 56Mr Walsh submitted that in considering this issue, the Tribunal must consider whether the evidence 'reasonably viewed' tends to prove motive at the time of the deposit of the monies on 2 December 2005 (see: R V Tsingopoulos [1964] VR 676 at 681, Deane J). He argued that the Tribunal should be very cautious about accepting the Law Society's contention as to motive in circumstances where it is relying upon proof of the motive, the deposit of the cheque on 2 December 2005 in the sum of $603,000.00. The Solicitor's case is that she did not deposit that cheque. Motive is not proven by virtue of the assertion that the Solicitor deposited the cheque nor is the misappropriation proven by the assertion of a financial motive that is not supported by the evidence. He concluded that there was no proven motive against the Solicitor and that this is a matter in favour of the Solicitor (see: Plomp v R [1963] 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). 57In relation to "opportunity", Mr Walsh referred to the Principal's affidavit evidence regarding the deposit of the relevant cheque on 2 December 2005 and his evidence as to how he allegedly collected the envelope containing the cheque from the post office beforehand. He said that in relation to this evidence, the question is what is its probative value?

Ground 2 - The Solicitor misled or attempted to mislead the Society 58Ms Gleeson submitted that this ground is based on two matters, namely: (1)The Solicitor's statements to the Law Society regarding the misappropriation of $603,097.47 from the Phillipson estate; and (2)The Solicitor's statement that the Principal was being admitted to hospital on 29 November 2005. 59Ms Gleeson observed that the Solicitor did not respond to the second matter in her affidavit and she submitted that it is reasonable to infer that she did not do so because she knew that her statement was false and misleading and involved an attempt to mislead the Law Society. 60In cross-examination, the Solicitor said that she drove the Principal to St Vincent's Hospital on the morning of 29 November 2005 and dropped him off. She said that she had no reason to believe that he was in hospital at St Vincent's either overnight or on any subsequent day. 61Ms Gleeson submitted that the Solicitor also clearly lied in her letter to the Law Society dated 19 December 2005, when she said that she 'was nursing a sick husband full time' and on 24 February 2006, when she said that 'Chris, with a view to recuperating, travelled to Cairns on 29 November 2005 and returned to Sydney on 23 December 2005'. 62On behalf of the Solicitor, Mr Walsh said that this matter involves a dichotomy between the Solicitor's evidence as a legal practitioner and her evidence as a human being, wife and mother and he pressed the Tribunal to view her conduct in the light of human experience. He conceded that the Solicitor was initially in a state of 'high dudgeon', but whether this was because she was misleading the Law Society or because she was affected by the human situation that she found herself in. The issue is whether she intended to mislead or attempted to mislead the Law Society or was she recklessly careless? 63Mr Walsh argued that it is apparent from the Solicitor's evidence that she had an 'honest belief' at the time that she made the various representations to the Law Society and that at the time of her representations she 'on grounds of probability, was not well in a psychiatric sense and was suffering from impaired judgment'. He submitted that there is a vast distinction between the Solicitor's general knowledge that the Principal was a gambler who enjoyed it as a hobby and that of the Principal who was misappropriating clients' money and betting on credit. 64In relation to the Solicitor not telling the Law Society where her husband was, Mr Walsh submitted that the Tribunal would not accept that she was intentionally deceiving the Law Society. Rather, he stated that she made it clear that she was concerned about her husband and that she found Mr Collins' attitude to be 'unnecessarily aggressive and rude' He stated: 'How then can it be established on the reckless of onus (sic) that she deliberately deceived the Law Society as to his specific whereabouts when she didn't know where he was?' While the Solicitor ultimately conceded that her answers were inaccurate and that she had in hindsight been 'less than frank', he submitted that the Tribunal ought to take into account the subjective problems that she was facing and that she had not intentionally deceived the Law Society. With respect to Mr Walsh, we note that the Solicitor also conceded (in answer to re-examination by himself) that she had misled the Law Society. 65As to whether the Solicitor's conduct was wilful, Mr Walsh referred to the decision in Re Hodgkiss (1962) SR (NSW) 340, where Hardy J said: A person is not guilty of lawful neglect or deceit unless he is conscious that, in doing the act which is complained of or in omitting to do the act which it is said he ought to have done, he is committing a breach of his duty, or is recklessly careless, whether it is a breach of his duty or not. He argued that the Solicitor's ultimate concessions were made in the context of a retrospective consideration rather than her state of mind at the time.

Ground 3: The Solicitor made a false Statutory Declaration 66On 19 September 2007, the Solicitor swore a statutory declaration, deposing that the handwriting on the 2 December 2005 deposit slip was not her handwriting and that she did not know whose handwriting it was. The Solicitor maintained this position. 67Ms Gleeson submitted that this allegation 'stands or falls with Ground 1' and we agree with that submission. Mr Walsh did not specifically address us on this matter, but we have considered his submissions in relation to Ground 1.

Professional misconduct 68Ms Gleeson referred to the decision of the Tribunal in Council of the NSW Bar Association v Asuzu [2011] NSWADT 209 ('Asuzu'), in which the Tribunal noted that as the definition of "professional misconduct" in s. 497 is inclusive in nature, it follows that conduct which amounts to professional misconduct under the general law will also fall within professional misconduct under the LPA 2004. It noted that the common law concept of professional misconduct includes conduct in pursuit of professional activities which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency. 69In Asuzu, the Tribunal referred to the decision in The Council of the NSW Bar Association v Sahade [2007] NSWCA 145 at [54] (per Basten JA), which notes the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 783 for medical practitioners. It also referred to the following passage from the judgment of Spigelman CJ in NSW Bar Association v Cummins [2001] NSWCA 284 [51]: The words "professional misconduct" are broad and general words. Their meaning may vary from one context to another. Their interpretation involves what is often referred to as an "ambiguity", although I prefer to describe this kind of difficulty for an interpreter as one of in explicitness rather than "ambiguity". see Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc. [2000] NSWCA 85; (2000) 48 NSWLR 548 at 577 [118]. 70The Tribunal also referred to the following passage from the decision of McClellan J in Bechara v Legal Services Commissioner [2010] NSWCA 389 at [44]: As Clyne [Clyne v NSW Bar Association [1980] HCA 40; (1980) 104 CLR 188] made plain, there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness." Previous examples of professional misconduct have included wilfully misleading the court (New South Wales Bar Association v Livesey [1982] 2 NSWLR 231); removing documents in contravention of a court order (Howes v Law Society of the ACT (Supreme Court of ACT, Gallop ACJ, Higgins and Crispin JJ, 23 July 1998, Unreported); permitting conflicts of interest to arise (Law Society of NSW v Moulton [1981] 2 NSWLR 736); failing to account for money received ( Re Walker; Ex pane Kemp (1887) 3 WN (NSW) 123); misleading a client (Hoshott v Council of the Law Society of NSW (Supreme Court of NSW, Meagher, Sheller and Stein JJA, 17 December 1997, Unreported); gross neglect and delay (Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454); failing to adequately supervise an unqualified clerk (Law Society of NSW v Foreman (1991) 24 NSWLR 238); breaching an undertaking given to another lawyer (Wade v Ll.Gardy (1993) 33 NSWLR 1); and, in certain situations, criminal and/or personal misconduct (Ziems v Prothonotary of the Supreme Court of NSW[1957] HCA 46; (1957) 97 CLR 279). 71Ms Gleeson accepted that the Law Society bears the onus of proof in disciplinary proceedings and that the Tribunal must apply the principles in Briginshaw's case. These call for the application of the civil standard of proof, 'on the balance of probabilities', accompanied by a recognition that 'the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunes (see the judgment of Dixon J at 362). A phrase often used to describe the standard in disciplinary proceedings is proof to the comfortable satisfaction of the court or tribunal' (See: Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, Bannister v Walton (1993) 30 NSWLR 699, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 and Council of the NSW Bar Association v Archer (No 12) [2009] NSWADT 2830.

Ground 1 - Misappropriation 72The Tribunal notes that in Council of the Law Society of NSW v. Doherty [2010] NSWCA 177 at [41], Young JA defined misappropriation by reference to Stroud's Judicial Dictionary (7th edition, vol. 12 at 1689), namely "wrongful conversion". We further note that conversion is an intentional tort and is actionable per se (see: Lancashire Railway Co v. MacNicoll (1919) 88 LJKB 601). Further, as Dixon J held in Penfolds Wines Pty Ltd v. Elliott (1946) 74 CLR 204 at [229] "The essence of conversion is dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel". 73For misappropriation to be established, it is necessary that the alleged convertor intended to do that which would deprive or impair the owner's immediate right to possession, or to do the act of converting a thing to one's own use or the intention to do the act of dealing with a thing, but no wrongful motive is required and it is not necessary that the convertor did not intend to challenge the owner's right to possession (see: Penfolds Wines at [218-19] per Latham CJ, 234-5 per McTiernan J). It was also not necessary for the claimant to prove that they suffered harm and/or that the alleged convertor had an intention to cause harm. 74We further note that in the context of disciplinary proceedings, a finding of professional misconduct at common law requires that a measure of "dishonesty" or some comparable mental element must be demonstrated on the facts of the case (see: Council of the Law Society of New South Wales v. Simpson [2011] NSWADT 242 at [50] ("Simpson")). 75Therefore, while it is necessary to consider the Solicitor's mental state -"the knowledge, belief or intention", it is not necessary to establish that she knew or believed [or intended] that her actions were dishonest and that 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 standards of reasonable and honest people (see: Bell J in Brereton v. Legal Services Commissioner [2010] VSC 378 ("Brereton") at 52 [and 53] cited in Simpson (at [33]). 76In the recent decision of Council of the Law Society of NSW v Nicholls [2012] NSWADT 222, the Tribunal considered the conflicting authorities as to whether a mental element of dishonesty is necessary for a finding of misappropriation in a disciplinary context, as follows: 16. In Law Society of New South Wales v. McCarthy [2003] NSWADT 198 ("McCarthy"), this Tribunal noted that by referring to the charge of misappropriation, the Society "... was seeking to refer to no more than the fact of the payment of the money into the personal account and the subsequent use of the money for purposes other than immediate payment to Counsel. It was not seeking to suggest that the practitioner had engaged in any more heinous conduct (at [21])". 17. In McCarthy, the Solicitor did not operate a trust account. Upon settlement of a client's case he received payment for costs and disbursements that he had incurred on behalf of the client in the sum of $4,200 (the cheque being made payable to him). This included counsel's fees of $3,000. He deposited the cheque into his personal account, but he did not pay Counsel's fees until the following year. The Tribunal held that the Solicitor was guilty of misappropriation, but it did not find that there was dishonesty on his part. 18.In Doherty, Young JA adopted a broader meaning of "misappropriation" and expressed the opinion that misappropriation has 'a wide ambit of meanings'. 19.However, in Brereton, Bell J held that misappropriation meant "the wrongful conversion of or dealing with anything by the person to whom it was entrusted" (see: at [49]). Her Honour held that it followed that "misappropriation" in its ordinary sense involved a mental element and that misappropriation is: "dishonestly misapplying property, including money, held on behalf of another" (see: at [50]). 20."Dishonesty" is not defined in the Act and it therefore necessary to consider its meaning at common law. In this regard, we note that in Brereton, Bell J referred to the decision of the Victorian Court of Appeal in Harle v. Legal Practitioners Liability Committee (2004) 13 ANZ Insurance Cases 61-605 at [29-30], where Chernov JA (Callaway and Buchanan JJA agreeing) held: "It seems clear enough that where, as here, dishonesty is not used in a special sense in relation to statutory offences, it is not a term of art and is to be given its ordinary meaning. It embraces deliberate conduct which is considered to be dishonest by the standard of ordinary decent people or, put another way, the ordinary standards of reasonable and honest people. Whether particular conduct amounts to dishonesty involves the consideration of the mental state - the knowledge, belief or intention - of a person whose conduct is impugned." 21.Considering the decision in Harle, Bell J observed at [53]: "While an allegation of dishonesty requires consideration of the person's mental state, in neither the criminal nor the civil context is it necessary to establish that the person subjectively knew or believed that the actions concerned were dishonest. What must be established is that the person subjectively intended to do the acts which are said to be objectively dishonest by the ordinary standards of reasonable and honest people." 22.In determining whether conduct is dishonest Bell J felt that the proper course to be followed was that explained by Toohey and Gaudron JJ in Peters v. R (1998) [1998] HCA 7: 192 CLR 493 at [504] as follows: "In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so to determine whether on that account the act was dishonest ... if the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people." 23.Bell J considered that the steps to be involved in this formulation were; at [54]: (1)Identify the knowledge, belief or intent which is said to render the acts dishonest; (2)Determine whether the accused (or defendant in the civil context) subjectively had that knowledge, belief or intent; (3)Determine whether, on that account, the acts were objectively dishonest according to the standards of ordinary and decent (that is reasonable and honest) people. 24.This tribunal considered the decision in Brereton in The Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83 (at [226]). Having done so, it held that dishonesty is a necessary element in any charge of misappropriation. However, it was not satisfied on the facts of that case that this had been established. 25.In Simpson the Tribunal considered an allegation of misappropriation where the Solicitor's employees did not attend to the proper payment of disbursements. It held that authorities including McCarthy established that a Solicitor could be guilty of misappropriation as he was ultimately responsible for the payments. However, as the evidence established that the Solicitor had been unaware of relevant aspects of his staff's conduct regarding the payment of disbursements and that he believed that the monies that were deposited into his office account "were quite properly payable in that manner", it concluded that his conduct did not amount to misappropriation. 26.In reaching its conclusion in Simpson, the Tribunal also noted that in Brereton, Bell J adopted the decision in Myers v. Ellman [1940] AC 282 at [288-289] and held that as professional misconduct at common law is conduct which "... would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency ... mere negligence, even of a serious character, will not suffice". Her Honour further observed at [59]: "The state of knowledge, belief or intend associated with being negligent, incompetent and in reckless disregard of professional responsibilities is less than, and does not amount to, dishonesty, and is not sufficient to establish that a lawyer is guilty of misappropriation ..." 27.The Victorian Court of Appeal further considered these issues in Legal Services Commissioner v. Brereton [2011] VSCA 241. Ashley JA (agreeing with Tate JA at [2]) said that he preferred to leave for final decision on another day the question of whether proof of dishonesty is always required when a charge of misappropriation is brought in a professional disciplinary context. 28. In this regard, Tate JA observed: "In my opinion there remains doubt whether at law a legal practitioner can only be guilty of misappropriation if he or she has acted dishonestly". And further at [69]: "With great respect to the Trial Judge, it is unclear whether dishonesty is the necessary element of misappropriation in the common law sense. In my opinion, there is room for doubt whether dishonesty is always an integral element of a charge of misappropriation, within a professional disciplinary context." 29.In reaching this conclusion, Her Honour referred to the decision of the Full Court of the Supreme Court of South Australian in Legal Practitioners Conduct Board v. Jones [2010] SAS CFC 51 (at [12]), which acknowledged the distinction between 'misappropriation' and 'fraudulent misappropriation' in the disciplinary context. She posed the following question: "If an allegation of misappropriation necessarily incorporates dishonesty as an element, what is added by the ostensibly additional element of charging a practitioner with fraudulent misappropriation?" Her Honour also considered the reasoning of Gibbs CJ in Daly v. Sydney Stock Exchange Limited [1986] HCA 25; (1986) 160 CLR 371. That matter involved the alleged defalcation by a stockbroker, in which Gibbs CJ recognised that in the absence of a statutory definition 'a defalcation need not require dishonesty even where the defalcation occurs by means of misappropriation'. Tate JA observed: "This is consistent with the objectives of legislation creating civil norms governing the conduct of legal practitioners, the aim of which is the protection of the public and not the denunciation of the practitioner. That aim is furthered if the threshold for disciplinary action is lower rather than higher, with the penalty for contravention being suitably adjusted depending on the circumstances of the case" at [73]. 30.This analysis of misappropriation, which does not compromise a mental element of dishonesty, is perhaps more consistent with the principle that monies received by a solicitor from or on behalf of a client and which are not intended to become the beneficial property of the solicitor, are subject to fiduciary obligations on the part of the solicitor. 31.In this context, for a Solicitor to apply or disburse trust money inconsistently with the terms under which it was received can be viewed as a fiduciary breach and it is no defence that the client suffered no loss as a result of the breach or that the solicitor acted with bona fides or honestly (see: Riley Solicitors Manual at 35, 055. 10-25; Council of the Queensland Law Society Inc v. Wakeling [2004] QCA 42, Stewart v. Layton (1992) 111 ALR 687). 77The Tribunal rejects the Principal's evidence that he deposited the cheque on 2 December 2005 and that he misappropriated the money. In rejecting his evidence, we agree with Ms Gleeson's submission that the Principal presented as 'a fabulist, was bombastic and a person who is quick to give evidence on matters of which he says that he has no recollection'. We also observed that his presentation as a witness strongly suggested that he regarded his conduct in misappropriating clients' money over a period of time and moving it between various accounts (including an 'unofficial' trust account) as an achievement and that he appeared to be proud of that achievement. He did not appear remorseful or express any remorse for his actions during his oral evidence. 78Based on the evidence before us, we find that the Principal flew from Sydney to Cairns on a flight operated by Virgin Airlines on the afternoon of 29 November 2005. We do not accept his evidence that he returned to Sydney on a Qantas flight on 2 December 2005 and that he proceeded from Sydney Airport to Potts Point Post Office, where he obtained the cheque for $603,000 and then walked to the Commonwealth Bank's Branch at Potts Point and deposited it, thus misappropriating the money. In our view, even if there was evidence that he flew from Cairns to Sydney on the afternoon Qantas flight, and there is none, the evidence indicates that the flight did not arrive in Sydney until 16:35. Taking appropriate notice of the fact that 2 December 2005 was a Friday and that the traffic conditions between Sydney Airport and Potts Point were likely to be heavy during the Friday afternoon peak hour period, we regard it as highly unlikely that the Principal could have completed his asserted movements within sufficient time to enable him to deposit the cheque with the Bank before the branch closed for business. 79Further we regard the evidence of the Keycard withdrawal on 2 December 2005 as being evidence only that a withdrawal was made. There is no evidence that the Principal made it and there is no evidence that otherwise corroborates his allegation. 80Having made those findings, the Tribunal is comfortably satisfied based on the evidence before us that more probably than not it was the Solicitor who completed the deposit slip and deposited the cheque into the joint account on 2 December 2005. 81In this regard, we find that Mr Westwood gave a detailed and credible analysis of the reasons for his opinion and that while the Solicitor questioned his opinion that the specimen handwriting that he attributed to her were written by one person (in relation to a specimen marked F5), he addressed this in his second report dated 17 April 2012. He stated that this matter did not cause him to alter his opinion concerning the authorship of the relevant bank deposit slip as he did not take document F5 into account for that purpose. 82Notwithstanding Mr Walsh's submissions concerning his evidence, the fact remains that ultimately, the Solicitor did not call her own expert witness - Mr Dubedat - to give evidence. Accordingly, Mr Westwood's evidence was not contradicted by any expert evidence. 83While the failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel, the Tribunal notes that there is other evidence that provides a basis on which that unfavourable inference can be drawn. In our view it is appropriate to draw an inference, in accordance with that decision, that Mr Dubedat's evidence would not have assisted the Solicitor's case. 84We are further comfortably satisfied that the Solicitor had the motive and the opportunity to misappropriate the money and we find that the cheque was deposited into the joint account (as per the details contained in the deposit slip) and based on Mr Westwood's evidence, she was the likely author of the deposit slip. 85While the Solicitor asserts a lack of motive on her part based on an assertion that she was not in any financial difficulty at the relevant, as a result of the drawdown facility of $495,000 that was available to the Principal and herself, we note that assertion is inconsistent with the decision to borrow the sum of $277,000 from their daughter and her husband. 86The Solicitor also had the opportunity to misappropriate the money and we note that there is no evidence that she was either absent from Sydney on 2 December 2005 or that there were any signatories to the joint account in addition to herself and the Principal. There is also no evidence before us that supports a finding that the Solicitor's actions of completing the joint account deposit slip and depositing the cheque were accidental and there is no evidence before us that at the relevant time she lacked the capacity to intentionally undertake these acts.

Ground 2 - The Solicitor misled or attempted to mislead the Law Society 87We find that this ground of the Application is established. In so far as her refusal to advise Mr Collins' of the Principal's whereabouts in November 2005, we are comfortably satisfied that she intended to mislead the Law Society and that intention flowed from her perception that Mr Collins' attitude towards her was inappropriate and rude. 88In so far as her subsequent conflicting statements to the Law Society are concerned, we have formed the view that the documentation speaks for itself. We note that the Solicitor ultimately accepted that her statements were misleading, although we note that this acceptance occurred late in the proceedings and only after she had maintained her denials in lengthy cross-examination.

Ground 3: The Solicitor made a false Statutory Declaration 89For the reasons expressed previously in this decision, we find that this ground is also established. For the foregoing reasons, our decision is that the Solicitor is guilty of professional misconduct. A further hearing is therefore required for the purpose of determining whether the orders sought by the Law Society should be made and, if not, what other course of action we should adopt under the relevant provisions (sections 562 and 566) of the LPA 2004. 90For the purpose of fixing a date for this hearing, the matter is set down for further directions on 6 December 2012 at 9.30am.

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: 23 November 2012