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[2012] NSWSC 260
Supreme Court of NSW
2012-09-11
Original judgment source is linked above.
INTRODUCTION 1This was a consolidated hearing of two disciplinary proceedings against the Respondent commenced by the Law Society. Proceedings numbered 092017 were commenced by the Application filed on 15 July 2009. At the hearing on 11 September, 2012, the Tribunal granted leave to the Applicant to rely on the Amended Application filed that day. 2The proceedings numbered 122019 were commenced by an Application filed on 17 August 2012. 3In both Applications the Applicant seeks that the name of the Respondent be removed from the Roll of Local Lawyers. The Applicant also seeks costs. 4On 11 September 2012 at the start of the hearing the Respondent was represented by counsel and an instructing solicitor. Counsel raised preliminary applications. One was an argument that because the Respondent had been prosecuted, convicted, sentenced to imprisonment and served his time for conduct comprising some of the grounds in these proceedings, the Law Society was estopped from relying upon those grounds in these disciplinary proceedings. That objection was subsequently withdrawn. 5The second application was for a stay of these proceedings as, it was agued, they are "an abuse of process" because:
BACKGROUND 11The Respondent was admitted as a Solicitor of the Supreme Court of NSW on 5 December 1969. The conduct, the subject of most of the grounds in the first application is misappropriation of trust funds and other conduct in relation to trust money and trust records alleged to have occurred between June 2001 and 27 February 2006 (inclusive). 12In late November 2005 the Respondent was informed that there had been a complaint to the Law Society regarding alleged misappropriation by him of money from a Deceased Estate client. 13On 21 December 2005 the Supreme Court appointed a Receiver and Manager of the Respondent's practice. That day the Law Society suspended the Respondent's practising certificate. 14On 30 December 2005 the Respondent consulted Dr Rowe, a Psychiatrist. The Respondent was admitted to Northside Clinic as an in-patient on 3 January 2006. He was discharged on 18 January 2006. 15The Respondent became aware of the Supreme Court Order in January or February 2006. 16In June 2006 the Respondent's Tabcorp betting facility was suspended. 17On 12 December 2008 the Respondent was arrested by police and charged with 8 counts of fraudulent misappropriation and 3 counts of using false instruments. The Respondent pleaded guilty to the charges in the District Court and was given a custodial sentence by Syme DCJ on 17 December 2009. He was then in prison until September 2010. 18Based upon the conduct of the Respondent the subject of the 11 convictions, in 2010 the Prothonotary of the Supreme Court of NSW initiated proceedings in the Supreme Court seeking to have the name of the Respondent removed from the roll. The Respondent argued that the conduct was attributable to Bipolar Disorder and addictions to alcohol and gambling and that he had since overcome his addictions and with treatment and medication controlled the Bipolar Disorder. On 23 March 2012 the Court made a finding that the conduct was professional misconduct and the Respondent was not a fit and proper person to engage in legal practice at the time of the conduct, but found that it was not satisfied that he was still not a fit and proper person to engage in legal practice and therefore refused to order his name be removed from the roll. 19Investigations by the Law Society had by then given rise to extensive other allegations of professional misconduct by the Respondent in the period 2001 to 2005 inclusive resulting in commencement of the proceedings in file 092017 in the Legal Services Division of the Tribunal in July 2009. 20The Law Society also took proceedings in the Legal Services Division of the Tribunal against the Respondent's wife, who worked with him in his office. In those proceedings the Law Society alleged misappropriation of trust money by her. The Respondent gave evidence for his wife in the hearing of those proceedings. His evidence was that it was he who misappropriated that money; not his wife. 21In Application 122019 by the Law Society against the Respondent filed 17 August the grounds alleged are mainly about false or misleading evidence given by the Respondent, or submissions made by him, in proceedings in the District Court, the Supreme Court, In the Tribunal hearing of the application against his wife and in these proceedings.
THE GROUNDS 22Some of the Grounds originally relied upon in the Application of 15 July 2009 were not pressed at the hearing. The following are the general descriptions of Grounds still relied upon in the amended application filed 11 September 2012: Misappropriations of Trust monies; Breaches of Section 254 of the Legal Profession Act 2004; Breaches of Section 257 of the Legal Profession Act 2004; Breaches of Section 260 of the Legal Profession Act 2004; Breaches of Section 264 of the Legal Profession Act 2004; Wilful breaches of Section 62 of the Legal Profession Act 1987; Breach of orders made by the Supreme Court on 21 December 2005; Borrowing from clients in breach of Rule 12 of the Revised Professional Conduct and Practice Rules; Making false entries in the official trust account cash book and/or trust ledger; and Intermingling trust monies with monies belonging to him and other persons. 23In his Reply filed 30 April 2012 the Respondent did not dispute any of the particulars of the grounds in the Application filed 15 July 2009, which include particulars of all of the grounds relied upon in the application of filed 11 September 2012. 24The Grounds alleged in Application 122019 filed 17 August 2012 are as follows: 1.Misleading the District Court in the matter of R v Christopher Ronald Fitzsimons District Court of NSW matter number 2009/11/0787 ["The District Court proceedings"]; 2.Misleading the Supreme Court in the matter of Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons Supreme Court of NSW matter number 265686/2010 reported at [2012] NSWSC 260 ["the Prothonotary's proceedings"]; 3.Swearing an affidavit on 28 January 2012 in the matter of Council of the Law Society of New South Wales v Maria Angela Fitzsimons Administrative Decisions Tribunal Legal Services Division matter number 090218 ["M A Fitzsimons proceedings"] which the Lawyer knew or ought to have known was false; 4.Swearing an affidavit on 27 May 2012 in the M A Fitzsimons proceedings which the Lawyer knew or ought to have known was false; 5.Misleading or attempting to mislead the Administrative Decisions Tribunal in evidence given under oath in the M A Fitzsimons proceedings on 24 April 2012; 6.Swearing an affidavit on 13 June 2012 in the matter of Council of the Law Society of New South Wales v Christopher Ronald Fitzsimons Administrative Decisions Tribunal Legal Services Division matter number 090217 ["C R Fitzsimons proceedings"] which the Lawyer knew or ought to have known was false; 7.Swearing an affidavit made on 17 February 2006 in the matter of The Law Society of New South Wales v Christopher Ronald Fitzsimons Supreme Court Proceedings matter number 16024 of 2005 ["the Receivership Proceedings"] which the Lawyer knew or ought to have known was false. 25In his Reply filed on the day of the hearing (11 September 2012) to the application filed 17 August 2012 the Respondent admitted or did not dispute most of the particulars of the grounds in the Application.
THE EVIDENCE 26The evidence comprised: A1)Affidavit filed 9 July 2009 of Raymond John Collins, Solicitor and Manager of the Professional Standards Department of the Law Society of NSW. A2)Affidavit filed 7 July 2009 of Leo Gore, Trust Account Inspector. A3)Affidavit filed 1 July 2009 of Jean Sayer A4)Affidavit filed 17 August 2012 of Anne-Maree Foord A5)Affidavit filed 24 May 2012 of Murray Raymond Hamer A6)Affidavit filed 8 June 2012 of Sastia Pesic (pages 539 - 543 of cross-examination bundle) A7)Affidavit filed 17 July 2012 of Adam Gelfe (pages 544-5 of cross-examination bundle) A8)Affidavit filed 10 July 2012 Anne Marie Siddon (pages 652 - 653 of cross-examination bundle) A9)A9.1 page 40 of cross-examination bundle - affidavit of the Respondent of 17 February 2006 paras 3, 9 and 12 A9.2pages 230 - 233 of cross-examination bundle - affidavit of the Respondent of 27 January 2011 - paras 3, 4 and 19 A9.3pages 362 - 370 of cross-examination bundle - affidavit of the Respondent of 28 January 2012- paras 2, 7, 19, 20, 23, 28 and first of 38 A9.4pages 514 - 519 of cross-examination bundle- affidavit of the Respondent of 27 May 2012 - paras 5, 8, 17, 18 and 24 A9.5pages 566 - 569 of cross-examination bundle - affidavit of the Respondent of 13 June 2012- first sentence para 2, 6, 10, 13 A9.6pages 639 - 640 of cross-examination bundle -- affidavit of the Respondent of 11 July 2011 para 2 A9.7Page 483 - 506 of Transcript of examination-in-chief of Respondent at ADT hearing on 24 April 2012 (Page 142 line 30 to 145 line 28 Page 146 -line 15 to Page 164 line 22.) R1)Affidavit of Respondent of 29 October 2010 - pages 599 - 600 of cross-examination bundle; R2)Affidavit of Respondent sworn 13 June 2012 R3)Affidavit of Respondent sworn 27 January 2011 R4)Affidavit of Respondent sworn 11 May 2011 - also annexing Dr Carrie's report - pages 601 - 614 of cross-examination bundle R5)Affidavit of Respondent sworn 25 May 2011 - pages 615 - 626 of cross-examination bundle R6)Affidavit of Respondent sworn 11 July 2011 - pages 639 - 640 of cross-examination bundle - annexing Dr Westmore's report R7)Affidavit of Respondent worn 29 August 2011 - pages 642 - 645 of cross-examination bundle R8)Judgment of Syme DCJ of 17 December 2009 R9)Supreme Court Judgment of Adams J of 23 March 2012 R10)Second Supreme Court Judgment of Adams J re whether to impose condition on any practising certificate of the Respondent.
STATUTORY PROVISIONS RELIED UPON BY THE APPLICANT 27Sections 61 and 62 of the Legal Profession Act 1987 ("the 1987 Act") applied at all material times prior to 1 October 2005 and provided: 61 Money received by solicitor on behalf of another (1) A solicitor who, in the course of practising as a solicitor in this State, receives money on behalf of another person: (a) must pay the money, within the time prescribed by the regulations, into a general Trust Account in New South Wales at an approved financial institution and must hold the money in accordance with the regulations relating to trust money, or (b) if the person on whose behalf the money is received directs that it be paid or delivered to a third party free of the solicitor's control, must ensure that the money is paid or delivered: (i) before the end of the next working day or, if that is not practicable, as soon as practicable after the next working day, or (ii) no later than the day allowed by the solicitor's authority or instructions (if that day is later than the day allowed under subparagraph (i)), or (c) if the person on whose behalf the money is received directs that it be paid otherwise than into a general Trust Account or to a third party, must pay the money as directed and (if the money is to be held under the direct or indirect control of the solicitor) must hold the money in accordance with the regulations relating to controlled money. (2) In any of those three cases, the solicitor must hold the money exclusively for, and must disburse the money in accordance with the directions of, the person on whose behalf it is held. (3) This section: (a) does not prevent a solicitor from depositing money with the Law Society in compliance with section 64, but this section continues to apply to any money so deposited that is repaid to the solicitor, and (b) does not prevent a solicitor from withdrawing or receiving, from trust money or controlled money: (i) reimbursement for disbursements paid by the solicitor, or ii) money for disbursements to be paid by the solicitor, or iii) money due, or to accrue due, to the solicitor for costs, so long as the procedure prescribed by the regulations is followed, and (c) does not affect any enforceable lien or claim that a solicitor has to any money, and (d) does not prevent a solicitor from exercising a general retaining lien for unpaid costs and disbursements in respect of money in a Trust Account or a controlled money account (other than money received subject to an express direction by the client with respect to the purposes for which the money is to be applied), and (e) does not prevent a solicitor from holding, or disposing of, a cheque or other negotiable instrument payable to a third party if the solicitor does so on behalf of a client and in accordance with directions given by the client, and (f) does not affect an authority that a solicitor has and that, apart from this section, is irrevocable. (4) A lien referred to in subsection (3) (d): (a) may not be exercised for an amount in excess of the sum of the costs and disbursements unpaid, and (b) may not be exercised unless the solicitor has delivered a bill of costs and disbursements to the client on whose behalf the money is held. (5) Money received by a solicitor on behalf of another person: (a)is not available for payment to a creditor of the solicitor, and (b) is not liable to be taken in execution of any judgment, order or other process of any court or tribunal at the instance of a creditor of the solicitor, unless the creditor is the person on whose behalf the money is held by the solicitor. (6) If a Crown Solicitor's Trust Account is established as prescribed by the regulations, this section applies to money received by the Crown Solicitor from a person for whom, or a body for which, the Crown Solicitor acts. (7) If a Trust Account kept by a solicitor is, as authorised by or under the regulations, operated on by a person other than the solicitor, section 53 of the Trustee Act 1925 does not apply to the person in relation to the operation on the Trust Account. (8) It is professional misconduct for a solicitor to wilfully contravene subsection (1) or (2). (9) In this section: "approved financial institution" means a bank, building society or credit union that has an agreement with the trustees of the Public Purpose Fund relating to the payment of interest on general Trust Accounts (as referred to in section 69E). "controlled money" means money required to be dealt with in accordance with subsection (1) (c) that, while under the direct or indirect control of the solicitor by whom or on whose behalf it is received, is for the time being held otherwise than in a general Trust Account at an approved financial institution. "trust money" means money required to be dealt with in accordance with subsection (1) (a). (10) A reference in subsection (1) to a third party does not include a reference to an associate of a solicitor. 62 Keeping of accounts (1) A solicitor shall keep: (a) in the case of trust money (within the meaning of section 61)-accounting records, or (b) in the case of money other than trust money-such accounting records or other records (if any) as may be required by the regulations, that disclose at all times the true position in relation to money received by the solicitor on behalf of another person. (2) The accounting records referred to in subsection (1) shall be kept in a manner that enables them to be conveniently and properly audited. (3) Without limiting the generality of subsection (2), the accounting records referred to in subsection (1) shall, if the regulations so require, be kept in such manner as the regulations prescribe. (4) A wilful contravention of subsection (1), (2) or (3) is professional misconduct. 28Section 178A of the Crimes Act 1900 (NSW) provided at the time of the 8 alleged misappropriations by the Respondent to which the Respondent pleaded guilty and for which he was convicted and sentenced by the District Court on 17 December 2009: 178A Fraudulent misappropriation of moneys collected or received Whosoever having collected or received any money or valuable security upon terms requiring him or her to deliver or account for or pay to any person the whole or any part of: (a) such money or valuable security or the proceeds thereof, or (b) any balance of such money, valuable security, or proceeds thereof after any authorised deductions or payments have been made thereout, fraudulently misappropriates to his or her own use or the use of any other person or fraudulently omits to account for or pay the whole or any part of such money, valuable security, or proceeds, or the whole or any part of such balance in violation of the terms on which he or she collected or received such money or valuable security, shall be liable to imprisonment for seven years. For the purposes of this section any such money, valuable security, or proceeds thereof, or any balance thereout shall be deemed to be the property of the person who authorised the collection or receipt of tile money or valuable security or from whom the money or valuable security was received notwithstanding that the accused may have been authorised to make any deduction thereout on his or her own behalf, or any payment thereout to another person, or to mix such money, valuable security, or proceeds thereof, or such balance with his or her own moneys. 29Section 300 of the Crimes Act 1900 NSW provided at the time of the 3 offences under the section to which the Respondent pleaded guilty and was sentenced by the District Court on 17 December 2009: 300 Making or using false instruments (1) A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person: a) to accept the instrument as genuine, and (b) because of that acceptance, to do or not do some act to that other person's, or to another person's, prejudice. is liable to imprisonment for 10 years. (2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person: (a) to accept the instrument as genuine, and (b) because of that acceptance, to do or not do some act to that other person's, or to another person's, prejudice, is liable to imprisonment for 10 years. 30The relevant provisions of the Legal Profession Act 2004 ("the 2004 Act") have applied on and since 1 October 2005. Section 254 of the Legal Profession Act 2004 provides: 254 Certain trust money to be deposited in general Trust Account (1) Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general Trust Account of the practice unless: (a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or (b) the money is controlled money, or (c) the money is transit money, or (d) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person. Maximum penalty: 100 penalty units. (2) Subject to section 258A, a law practice that has received money that is the subject of a written direction mentioned in subsection (1) (a) must deal with the money in accordance with the direction: (a) within the period (if any) specified in the direction, or (b) subject to paragraph (a), as soon as practicable after it is received. Maximum penalty: 100 penalty units. (3) The law practice must keep a written direction mentioned in subsection (1) (a) for the period prescribed by the regulations. Maximum penalty: 50 penalty units. (5) A person is an "appropriate person" for the purposes of this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money. 31Section 257 of the Legal Profession Act 2004 provides: 257 Transit money (1) Subject to section 258A, a law practice that has received transit money must pay or deliver the money as required by the instructions relating to the money: (a) within the period (if any) specified in the instructions, or (b) subject to paragraph (a), as soon as practicable after it is received. Maximum penalty: 50 penalty units. (2) The law practice must account for the money as required by the regulations. Maximum penalty: 50 penalty units. 32Section 260 of the Legal Profession Act 2004 provides: 260 Intermixing money (1) A law practice must not, otherwise than as permitted by subsection (2), mix trust money with other money. Maximum penalty: 100 penalty units. (2) A law practice is permitted to mix trust money with other money to the extent only that is authorised by the Law Society Council and in accordance with any conditions imposed by the Law Society Council in relation to the authorisation. 33Section 264 of the Legal Profession Act 2004 provides: 264 Keeping trust records (1) A law practice must keep in permanent form trust records in relation to trust money received by the practice. Maximum penalty: 100 penalty units. (2) The law practice must keep the trust records: (a) in accordance with the regulations, and (b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person, and (c) in a way that enables the trust records to be conveniently and properly investigated or externally examined, and (d) for a period determined in accordance with the regulations. Maximum penalty: 100 penalty units. 34Subrule 12.1 of the Revised Professional Conduct and Practice Rules 1995 provides: 12.1A practitioner must not borrow any money, nor assist an associate to borrow any money from a person: 12.1.1 who is currently a client of the practitioner, or the practitioner's firm; 12.1.2 for whom the practitioner or the practitioner's firm has provided legal services, and who has indicated continuing reliance upon the advice of the practitioner, or the practitioner's firm in relation to the investment of money; or 12.1.3 who has sought from the practitioner, or the practitioner's firm, advice in respect of the investment of any money, or the management of the person's financial affairs.
UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT 35The relevant provisions of the Legal Profession Act 2004 defining these concepts are as follows: 496Unsatisfactory professional conduct For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 497Professional misconduct (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. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 498Conduct capable of being unsatisfactory professional conduct or professional misconduct (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, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (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.
ALLEGATIONS PROVED IN RESPECT OF GROUNDS IN AMENDED APPLICATION 092017 36All of the particulars in the Grounds set out in the Amended Application 092017 were originally set out in the Application commencing those proceedings. That document was filed with the Tribunal in July 2009. The Respondent did not file any Reply to that Application and the particulars in it until 30 April 2012. That Reply did not deny or admit the particulars set out in relation to the various grounds. He did not admit even the facts in relation to the 8 counts of misappropriation and 3 counts of making and using false instruments to which he pleaded guilty in the District Court and was convicted and sentenced to 9 months imprisonment on 17 December, 2009 with 12 months parole. 37In relation to the allegations that were the subject of the Criminal Proceedings in the District Court the Respondent claimed in his Reply there was an estoppel that prevented the Law Society from proceedings those grounds because they were the subject of criminal charges brought against the Respondent under the Crimes Act (NSW). 38In relation to the remaining matters, the Respondent said: "The Respondent does not deny the facts and particulars set out in the Application and cannot comment upon or dispute them in any meaningful way as he has little or no recollection of the files and clients concerned." He then relies upon a diagnosis of suffering from Bi-polar Effective Disorder. 39Ground 1: In June 2001 the Respondent misappropriated $130,000.00 of funds he held in trust for the Battye Estate. The file for the matter is missing. On 26 June 2001 the Respondent drew a cheque for $130,000.00 against trust funds held on behalf of the Estate and used those funds to purchase a bank cheque payable to the Commonwealth Bank. He deposited the bank cheque the same day into a joint account of the Respondent and his wife at the Commonwealth Bank at Chatswood ("the joint account"). 40The payment was falsely recorded in the trust ledger as a distribution to a beneficiary. 41Ground 2: On 14 August 2001 the Respondent misappropriated $80,000.00 of trust funds he held on behalf of the Battye Estate by drawing a cheque against the funds held in the trust account of his law practice (the "official trust account") for that amount and then depositing the cheque in the "joint account". 42The payment was falsely recorded in the trust ledger as a distribution to a beneficiary. 43Ground 3: On 18 October 2001 the Respondent misappropriated $20,000.00 of trust funds held on behalf of the Battye Estate by drawing a cheque for that amount against the trust account and depositing those funds in the joint account. 44The payment was falsely recorded in the trust ledger as a distribution to a beneficiary. 45Ground 4: On 18 February 2002 the Respondent misappropriated $50,295.00 from trust funds he held on behalf of the Keg Estate. He drew a cheque on the official trust account and deposited that cheque the same day into a cash management account in his name with the Commonwealth Bank. On 4 March 2002 the funds from the account with interest amounted to $51,412.67. He withdrew that amount and closed the account. He falsely detailed in the trust ledger "Commonwealth Bank payment to client's A/c - B/Cheque". The solicitor failed to account to the executor of the Estate for the amount of $51.312.67 that he misappropriated. This was a misappropriation for which the Respondent was prosecuted. He pleaded guilty and was sentenced on 17 December 2009. 46Ground 5: The Respondent wilfully breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the Keg Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client. 47Ground 6: The Respondent intermingled the trust moneys of Keg Estate with moneys belonging to him and other persons. 48Ground 7: Between 10 May 2002 and 1 June 2002 the Respondent misappropriated a total of $286,931.48 from the Estate of the Late M I Nettelbeck. He received the proceeds of a bank account ($3,798.59) on behalf of the Executrix. Those funds were trust funds. He wrote to the Executrix and told her he would hold the funds pending further instructions as to the method and time for payment to the beneficiaries. Instead, on 12 April 2002, he deposited those funds into the joint account. The whole of those funds was subsequently used by him and his wife by 26 April 2002. He misappropriated the trust monies of $3,798.59. 49Ground 8: The Respondent wilfully breached Section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the Nettelbeck Estate trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the Estate. 50Ground 9: The Respondent intermingled the trust moneys of the Estate with moneys belonging to him and his wife. 51Ground 10: On 13 May 2002 the Executrix, who was purchasing a property owned by the Estate and whose company was also the mortgagee of the property, provided the Respondent with a cheque for $111,351.00, which the Respondent had told her was the amount required for her to contribute (with other trust funds already held to which she was entitled) in order to acquire the property. Those funds were trust moneys. The Respondent did not deposit them to any trust account. He misappropriated them to an investment account in the joint names of himself and his wife at the Commonwealth Bank at Martin Place ("the direct investment account"). This and the misappropriation of $171,781.99 from the same Estate comprised one of the misappropriation charges to which the Respondent pleaded guilty in the District Court, was convicted and sentenced. 52Ground 11: The Respondent wilfully breached section 62 of the 1987 Act by failing prior to 1 October 2005 to keep accounting records in relation to the client's trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client. 53Ground 12: The Respondent intermingled the client's trust moneys with moneys belonging to him and his wife. 54Ground 13: For settlement of the sale of the property, the Respondent directed the drawing of a Trust Account cheque for $171,781.99 against trust funds in the estate of the father of the executrix (to which the executrix was beneficially entitled) payable to the Commonwealth Bank of Australia. On 10 May 2002 he deposited that into the joint investment account. The funds in the investment account were dissipated mainly by Netbank transfers to other accounts kept by the Respondent and his wife. The investment account was overdrawn by 6 August 2002. The Respondent misappropriated the $171,781.99. This and the preceding ground comprised one of the misappropriation charges to which the Respondent pleaded guilty in the District Court, was convicted and sentenced. 55Ground 14: The Respondent again wilfully breached section 62 of the Act by failing to keep accounting records in relation to the client's trust money received and disbursed by him that at all times disclosed the true position in relation to the trust money he received on behalf of the client. 56Ground 15: The Respondent intermingled the trust moneys of the client with moneys of him and his wife. 57Ground 16: On 29 July 2003 the Respondent made false entries in the trust account records to the effect that:
APPLICATION 092017 - PROFESSIONAL MISCONDUCT 198The 3 grounds of borrowing from clients are occasions where despite prohibition of such transactions by his profession, he placed his own financial interests in conflict with those of the client and preferred his own interests. In at least one of those matters he also deceived the client in various ways and acted fraudulently. Each time there was a substantial failure to maintain a reasonable standard of diligence in relation to his client's interests. 199Diligence in relation to the interests of clients involves persistent care for the client's interests. The other 88 grounds alleged by the applicant that were found proved involve a pattern of fraudulent and dishonest conduct over a period of 5 years. Each of the grounds proved involve a substantial failure of the Respondent to maintain a standard of reasonable competence and diligence. His conduct involving substantial failure to maintain a standard of reasonable competence and diligence was consistent over that period of 5 years from 2001 to 2006. Subject to the issues raised by the Respondent in his defence, each of the grounds proved constitutes professional misconduct.
ALLEGATIONS PROVED IN RESPECT OF GROUNDS IN APPLICATION 122019 200The Grounds alleged in Application 122019 and the respective findings are as follows.
Misleading the District Court in the matter of R v Christopher Ronald Fitzsimons District Court of NSW matter number 2009/11/0787 ["the District Court Proceedings"] 201The Respondent made the following assertions to the District Court: 201.1"He had made repayment in full, or arrangements to repay in full, all of the moneys outstanding". This was untrue and the Respondent knew it was untrue. He knew at the time that the Commonwealth Bank had paid to the Receiver of his practice $257,373.13 which had been misappropriated from the Estate of Huntington by depositing a cheque payable to his Trust Account into a different account. He knew also that the Fidelity fund had paid out a total of $873,463.64 to persons who had suffered loss as a result of his misappropriation of Trust funds. By his letter of 6 August 2008 to the Secretary of the Law Society he expressed regret "other than the Bank, the creditors will receive nothing." 201.1 "Arrangements are in hand by the sale of property for the full repayment of those funds." The Respondent knew this was false because there would be no funds available from the sale of any properties after discharge of secured mortgage debt. By his letter of 6 August 2008 to the Secretary of the Law Society he stated: "I last paid a mortgage instalment to the Bank in mid-2006. The Bank commenced proceedings for possession in mid-2007, with ... Judgment being entered in 2008 ... It is easy to see that the chances of there being a surplus on the sale are zero." 201.2 He and his family: "Had not without considerable difficulty repaid or made arrangements to repay the full amount of the property misappropriated by selling all of their property." The Respondent knew this was false. He knew that he and his family had not repaid any part of the property misappropriated. He did not sell any assets to pay restitution. He did not make any arrangements to repay any part of the funds misappropriated and he did not repay any amount. 201.3 He had: "sold all of [my] property", and his "financial debt will shortly be repaid in full". This was untrue and he knew it was untrue. He had not himself sold any property. He had not repaid any part of the funds misappropriated. 202The submissions 201.1 to 201.3 made by the Respondent to the Judge Syme in the District Court were untrue and misleading and the Respondent knew they were. By making those false submissions in his favour at the sentencing hearing, the lawyer attempted to mislead the Court. 203On 17 December 2009, Judge Syme sentenced the Respondent and handed down her Reasons. At pages 2-3 of the Reasons she stated: "At the time of sentencing the consequences have been ameliorated by repayment in full, or arrangements to repay in full, of all of the moneys outstanding. I note at the outset and in considering the total criminality of the offences, the total amount of moneys which were misappropriated over a period of some 4 or 5 years was $708,000.00. As at today there is about $260,00 [sic] outstanding I am told, but have heard evidence and I accept that arrangements are in hand by the sale of property for the full repayment of those funds. In fact, I note that mortgages and charges have been entered against property to ensure the repayment in full occurs. This is a significant consideration ... " 204At page 8 she stated: "Remorse can be a significant mitigating factor, but only if the offender has provided evidence that he has accepted responsibility for his actions and where appropriate, made reparation for the damage and acknowledge [sic] any injury or loss ... to support his expression or [sic] remorse, the offender and his family have not without considerable difficulty repaid or made arrangements to repay the full amount of the property misappropriated by selling all of their property. This is a significant factor that should not be underestimated ... "He has sold all of his property and his family has assisted. His financial debt will shortly be repaid in full ... This is an expression of remorse that is supported by action and in this Court is refreshing. It is a significant feature that will count significantly in relation to my assessment of his criminality, remorse and prospects of rehabilitation." 205Judge Syme was mislead by the false submissions of the Respondent. The Respondent mislead the District Court. 206The Respondent's conduct described misleading the District Court would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and amounts to professional misconduct.
Misleading the Supreme Court in the matter of Prothonotary of the Supreme Court of New South Wales v Christopher Ronald Fitzsimons Supreme Court of NSW matter number 265686/2010 reported at [2012] NSWSC 260 ["the Prothonotary's proceedings"]; 207In the proceedings before the Supreme Court on the Application of the Prothonotary for the Respondent's name to be removed from the roll, the Respondent swore an Affidavit of 27 January 2011 which he relied upon in the hearing before Adams J. In paragraph 3 of that Affidavit he swore: "I admit the accuracy of the transcript of the Judgment of Her Honour Judge Syme in the District Court on 17 December 2009 ..." 208In his Judgment Adams J stated: 208.1 at paragraph 20: "It is conceded by the Applicant that I should take into account the views expressed by the learned sentencing Judge when dealing with Mr Fitzsimons." and, 208.2 at Paragraphs 23 and 24: "Her Honour accepted that Mr Fitzsimons had demonstrated general remorse and had made good (with the support of his family) his defalcations by, in effect, selling all their property leaving nothing of any substance .... "These Findings were plainly the basis for ... the very lenient sentence imposed on Mr Fitzsimons." 209By swearing as to the accuracy of the Judgment in the District Court proceedings, knowing that relevant findings were untrue, the Respondent mislead Adams J in the Prothonotary's proceedings. 210The Respondent also swore an Affidavit on 11 July 2011 which he relied upon in the hearing before Adams J. Annexed to that Affidavit was a report of 14 June 2011 of Dr Bruce Westmore. In that report Dr Westmore wrote: 210.1 at page 1: "He [the Respondent] said he is unemployed and has not worked since 2005." 210.2 at page 2: "The sum involved was, he said, approximately $800,000.00, all of which has been repaid. He said repayment came from two sources, from the Commonwealth Bank and four properties which were sold." and, 210.3 at page 2: "The offending behaviour continued from 2002 until 2005. Four or five clients were involved, possibly six or seven, but less than 10 he said." 211All of these propositions were untrue, except that he was presently unemployed. The evidence establishes that the Respondent continued to practice as a solicitor whilst suspended, until at least 10 April 2006. No repayments were made from the sale of any properties. The total of the amounts contributed by the Commonwealth Bank and the Fidelity Fund in compensation for the losses of trust funds misappropriated and not recovered, was $1,130,836.81. None of this has been recovered from the Respondent or his family. 212The misappropriations by the Respondent continued from 2001 until 2006, and included misappropriations from more than 20 different clients. 213When the Respondent swore that affidavit in July 2011 he had previously had been served with the Application of the Law Society in proceedings 092017 listing allegations of misappropriation involving over 20 clients. Those allegations were supported by affidavit evidence of the Receiver, Ms Jean Sayer in her Affidavit dated 1 July 2009 and Exhibit JS1 to that affidavit. Also by a letter dated 2 November 2009 to Mr A Matalani of the Law Society of NSW, the Respondent had forwarded documents subsequent to his receipt of and in response to the Law Society application and supporting evidence. 214The Respondent knew that those propositions in the report of Dr Westmore were false when he swore his Affidavit of 11 July 2011. Reliance on those propositions in the Westmore report was misleading of the Supreme Court. 215The Respondent swore a lengthy Affidavit of 27 January 2011 in the Supreme Court proceedings before Adam J. in that affidavit at paragraph 8: "I mustered the will-power to stop gambling and I did it". 216Also, in an Affidavit sworn by the Respondent on 2 January 2007, proceedings in the Supreme Court of Christopher Ronald Fitzsimons v The Hon Grant McBride, Minister for Liquor, Gaming and Racing, the Respondent swore at paragraph 44: "By June 2006 I had run out of money and had no access to any further funds whatsoever ..." And, at Paragraph 48: "After about June 2006 when I had run out of money and no longer had any credit advance from the company I again 'bottomed out' as I had in late 2002. I could no longer gamble and I had no 'carrot dangling in front of me' in the form of credit. The gambling stopped and then I sought help through Wesley Mission, St Vincent's Hospital and Gamblers Anonymous." 217Annexure E to that same Affidavit is an undated, unsigned statement of the Respondent's daughter, Louisa Danielle Roberts. She states at paragraph 17: "My father's TAB account was closed by them shortly after this discovery as I took control of the bank account to ensure that he had no money to bet with. The TAB responded by closing his account and severing all contact with him." 218She purported that this happened in 2005. 219In circumstances where the character of the Respondent was being tested for the purposes of establishing whether he was fit and proper to remain on the Local Roll, a claim that his gambling addiction was over-come by mustering will-power was misleading. Adams J in his Judgment at paragraph 55 held: "... He [the Respondent] mustered the will-power to stop gambling." 220The conclusion is that the Respondent extensively mislead Adams J. That conduct could reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.
Swearing an affidavit on 28 January 2012 in the matter of Council of the Law Society of New South Wales v Maria Angela Fitzsimons in Administrative Decisions Tribunal Legal Services Division matter number 090218 ["M A Fitzsimons proceedings"] which the Lawyer knew or ought to have known was false; 221Many of the allegations in relation to this Ground are either admitted or not disputed by the Respondent in his Reply filed 11 September 2012. 222Maria Angela Fitzsimons is the wife of the Respondent. In 2009 the Law Society commenced the "M.A. Fitzsimons proceedings". The complaint made against the Respondent's wife arose from reports of the Receiver. The Society alleged, amongst other things, that she misappropriated the sum of $603,097.47 when at the Potts Point branch of the Commonwealth Bank on 2 December 2005 she deposited a cheque properly characterised as trust property into a joint personal account of herself and her husband. 223Final submissions in the Law Society proceedings against the Respondent's wife were completed on 20 July 2012 and Judgment was reserved. We have not been informed of the outcome. 224The Respondent gave evidence in those proceedings on behalf of his wife. He swore an Affidavit of 28 January 2012 and annexed to that Affidavit a copy of the report of Dr Westmore of 14 June 2011. That report, as already found, contained allegations of fact that were false. 225In paragraph 7 of the same Affidavit the Respondent swore: "I misappropriated the sum of $603,097.47 ('the cheque') the subject of this complaint ... I deposited the cheque into the joint account ... at the time I made the deposit on 2 December 2005 I had no trust account and there was no account styled "C.R. Fitzsimons Trust Account" at any bank." 226The Respondent did not mention that he was in Cairns that day and did not say he then flew to Sydney. 227Each element of that statement in paragraph 7 of his affidavit was false and when he swore the affidavit the Respondent knew it was false. The Respondent was not in Sydney on 2 December 2005. Also at the time of the deposit of the cheque he had an unofficial Trust Account styled "Christopher Ronald Fitzsimons Trust Account", Account No. 06214010566431 at the Chatswood branch of the Commonwealth Bank, which he had opened on 15 September 2005, and which was operative on 2 December 2005 at the time of the deposit. That account was closed late on 21 December 2005 after the appointment of the Receiver earlier that day. 228The evidence that the Respondent did not make the deposit and was not in Sydney on 2 December 2005 includes the following documents: 228.1 Page 1 of the cross-examination bundle which is the reservation record in respect of a flight by the Respondent from Sydney to Cairns departing Sydney on 29 November 2005; 228.2 Paragraphs 4 and 14 of the Respondent's Affidavit of 27 May 2012; 228.3 Dr Hugh Morgan's report (at pages 49-52 of the cross-examination bundle) at paragraphs 1.4 to 1.5 reciting that the Respondent had informed him that he went to Cairns In November 2005 and did not return to Sydney until 22 December 2005; 228.4 The bank cheque of 30 November 2005 payable to "C.R. Fitzsimons Trust Account" in the sum of $603,097.47; 228.5 The telephone records from Telstra in respect of the Respondent's mobile telephone service showing that on 1 and 2 December 2005 he made calls from his mobile phone from the Cairns district including calls at 11.16am, 11.18am, and 12.21pm on 2 December 2005. It also shows a phone call from the Respondent's mobile phone to message bank from Saddle Mountain in the Cairns area at 3.04pm on 2 December 2005; 228.6 The deposit slip for the Commonwealth Bank for the bank cheque for $603,097.47 dated 2 December 2005; 228.7 Commonwealth Bank record of deposit of such cheque on 2 December 2005 at the Potts Point branch of the Commonwealth Bank; and 228.8 The respondent's evidence in cross examination on 24 Aril 2012 in the Tribunal proceedings by the Law Society against his wife that it was a time of "madness" and he did not have a very good memory of what he was doing then. 229There is no evidence that anyone else made the call from the Respondent's mobile phone in the Cairns area to his message bank at 3.04 pm on 2 December 2005. 230The Respondent's then solicitors wrote to the investigator, Jean Sayer, on 16 March 2006 and in that letter they said in numbered paragraphs 7 and 8 that the Respondent had gone to Clifton Beach (near Cairns) in Queensland on 29 November 2005, and remained there until 23 December 2005. 231Indeed, annexed to the Respondent's Affidavit of 27 May 2012 is a record of his flights. He was a Qantas Frequent Flyer. He travelled by plane frequently on domestic flights and flew Qantas. The record he produced does not include any flight on 2 December 2005, nor a return flight to Cairns. He seeks to explain that by saying that he cannot recall whether he paid for his ticket by cash, credit or Frequent Flyer points. 232He produced no evidence by way of E ticket, email confirmation of booking, boarding pass or any record or documentation of Qantas evidencing a booking or flight from Cairns to Sydney on 2 December, nor for any return flight from Sydney to Cairns. There is no documentary evidence of him using frequent flyer points for either flight or being awarded points for either flight. 233The only evidence as to available flights to Sydney from Cairns by Qantas, with whom he travels, is Annexure C to his Affidavit. The last flight to Sydney on 2 December 2005 left Cairns at 12.55pm. That was only 34 minutes after he made a short call from Buchan Point to a Sydney number and more than 2 hours before the call from his mobile to his message bank from Saddle Mountain. Both Buchan Point and Saddle Mountain are in Queensland in the Cairns district. 234Even if the Respondent had caught the 12.55pm flight from Cairns, according to Qantas the arrival time for that flight was not until 4.43pm in Sydney. 235The 2nd December 2005 was a Friday. Even if the Potts Point branch of the Commonwealth Bank did not close until 5pm, it is more likely than not that it was not possible for the Respondent to fly to Sydney from Cairns and then travel from Sydney airport to the Potts Point branch of the Commonwealth Bank by 5.00pm to make the deposit. He had about 17 Minutes to disembark, walk to a taxi rank, catch a taxi and travel by taxi from Mascot to Potts Point. 236The proposition that he went to the Bank is even less likely because in paragraph 15 of his affidavit of 27 May 2012 in the same proceedings the Respondent swore that on the way to the Potts Point Branch of the Bank, he went to the Potts Point Post Office, cleared his post office box, found in it a letter enclosing a cheque for $4,000 and deposited that into his office account at the same time that afternoon as he deposited the Cheque for $603,097.47 at the Potts Point Branch of the Bank. 237The Tribunal is comfortably satisfied that the Respondent did not travel by plane to Sydney that day, was not in Sydney that day, did not attend the Commonwealth Bank at Potts Point that day, and did not deposit the cheque for $603,097.47. 238The evidence compels a conclusion that the Respondent's evidence in paragraph 7 of the affidavit was false, that he knew it was false and that he intended by that evidence to mislead the Tribunal in the proceedings against his wife. 239That conduct could reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.
Swearing an affidavit on 27 May 2012 in the M A Fitzsimons proceedings in the Administrative Decisions Tribunal, which the Lawyer knew or ought to have known was false; 240The Respondent swore a further Affidavit on 27 May 2012 in the proceedings against his wife. 241In paragraph 5 he swore: "On Friday, 2 December 2005 I flew from Cairns to Sydney". 242That statement was false. The Respondent knew that he did not fly from Cairns to Sydney on that day. 243In the same Affidavit he says in paragraph 15 that on the afternoon of 2 December 2005 he collected from a Post Office box at Potts Point after his arrival in Sydney a letter enclosing a cheque for $4,000.00 and that he deposited that cheque the same afternoon at the Potts Point branch of the Commonwealth Bank for credit to his Office Account. That Statement was false and he knew it was false. Whilst the Cheque was deposited into the account that day, it was not deposited by the Respondent. 244In that Affidavit he repeated that he was responsible for taking the cheque for $603,097.47 to the Commonwealth Bank at Potts Point on 2 December 2005. That statement was false and the Respondent knew it was false. 245The Respondent's conduct of giving false evidence in that Affidavit would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.
Misleading or attempting to mislead the Administrative Decisions Tribunal in evidence given under oath in the M A Fitzsimons proceedings on 24 April 2012; 246The Respondent admits that he gave evidence in the M A Fitzsimons proceedings to the following effect: 246.1 He flew from Cairns to Sydney on the afternoon of Friday, 2 December 2005; 246.2 After the flight from Cairns landed at Sydney airport on the afternoon of Friday, 2 December 2005, he hired a taxi to the Post Office and collected the cheque for $603,097.47 from his post box at Potts Point Post Office. He then attended the Potts Point Branch of the Commonwealth Bank of Australia where he deposited the cheque into the joint account held by him and his wife; and 246.3 On Monday, 5 December 2005 he flew from Sydney to Cairns. 247All of that evidence was untrue. 248Again there is no record or document produced as evidence of him having flown from Cairns to Sydney on or before 5 December or having flown from Sydney to Cairns on Monday, 5 December 2005 or having booked either such flight. There is no record of him having paid by credit card or otherwise for any fare for such a flight. There is no evidence of him having paid for the flight with frequent flyer points or accumulated frequent flyer points for either such flight. 249By this false evidence to the Tribunal, the Respondent attempted to mislead the Administrative Decisions Tribunal. 250The Tribunal finds that this conduct could reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.
Swearing an affidavit on 13 June 2012 in the matter of Council of the Law Society of New South Wales v Christopher Ronald Fitzsimons Administrative Decisions Tribunal Legal Services Division matter number 090217 ["C R Fitzsimons proceedings"] which the Lawyer knew or ought to have known was false; 251The Respondent swore an Affidavit on 13 June 2012 in the proceedings against him by the Law Society No. 090217. In that Affidavit: 251.1 The Respondent annexed at tabs 1 and 3 the Judgment of Syme DCJ; 251.2 He did not in the Affidavit correct those matters that he knew to be false in the Judgment of Syme DCJ as already particularised in relation to Ground A; 251.3 The Respondent knew when he swore the Affidavit of 13 June 2012 that he had an outstanding liability to the Law Society of $1,335,796.94, as advised per letters of 27 March 2012, 2 April 2012, and 5 April 2012 to him from the Law Society, and also an e-mail of 5 April 2012 from the Law Society; 251.4 The Respondent also annexed at tab 5 to the Affidavit of 13 June 2012, his previous Affidavit of 27 January 2011 in the Prothonotary's proceedings confirming at paragraph 3: "the accuracy of the transcript of the Judgment of Her Honour Judge Syme". He failed to correct those matters which he knew to be false in the Judgment of Syme DCJ as particularised earlier; 251.5 The Respondent annexed to the Affidavit at tab 8 his Affidavit of 11 July 2011 filed in the Prothonotary's proceedings, which included a copy of the report of Dr Bruce Westmore. But in the Affidavit of 13 June 2012 the Respondent failed to correct those matters which he knew to be false in the report of Dr Bruce Westmore, as particularised earlier in these reasons. 252As detailed above, the Affidavit of 13 June 2012 was false. The conduct of the Respondent described would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.
Swearing an affidavit made on 17 February 2006 in the matter of The Law Society of New South Wales v Christopher Ronald Fitzsimons Supreme Court Proceedings matter number 16024 of 2005 ["the Receivership Proceedings"] which the Lawyer knew or ought to have known was false. 253The Respondent swore an Affidavit of 17 February 2006 in the Receivership Proceedings. In that Affidavit the Respondent swore at paragraph 12(h) that the following debt was due by him: "(h)K.M. and D.E. Grubsia [sic] $277,133.01 (Joint borrower with Maria Fitzsimons)" 254On 21 December 2005 a cheque drawn by the Uniting Church in favour of the "Estate of the Late Doris C Huntington" in the sum of $173,585.78 was deposited into the "unofficial Trust Account" operated by the Respondent and styled "Christopher Ronald Fitzsimons Trust Account". This is the same account whose existence was denied by the Respondent under oath in paragraph 7 of his Affidavit of 28 January 2012. 255On 21 December 2005 the Respondent drew a cheque payable to K.M. and D.E. Grubisa in the sum of $173,585.78. The cheque was used by the Respondent to purchase a bank cheque for $173,585.78 in favour of K.M. and D.E. Grubisa which bank cheque was then deposited into the account of the payees. 256The Respondent's sworn statement in paragraph 12(h) of his Affidavit of 17 February 2006 was false because the Respondent had paid an amount of $173,585.78 to Mr & Mrs Grubisa by misappropriating that amount from the Huntington Estate. 257Accordingly, the Respondent's statement in the Affidavit that he still owed K.M. and D.E. Grubisa $277,133.01 was false and the Respondent knew it was false when he swore to its truth in his Affidavit. 258The Respondent's conduct in giving false evidence in the Affidavit could reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency and so amounts to professional misconduct.
THE Respondent'S DEFENCE TO APPLICATION 092017 259In relation to the grounds of misappropriation and other complaints in relation to the Respondent's handling of trust moneys, and also his creation of false documents and borrowing from clients, there were several limbs of the Respondent's defence. 260His counsel unsuccessfully argued that the finding by Justice Adams in the proceedings by the Prothonotary on 23 March 2012 declining to make a declaration that the Respondent is not a fit and proper person to remain on the Local Roll of Lawyers created an estoppel preventing a contrary finding by the Tribunal in the disciplinary proceedings by the Law Society against the Respondent. 261He was also unsuccessful in his argued defence that because the Law Society, although invited, elected not to be involved in the previous proceedings taken by the Prothonotary seeking to have the Respondent removed from the Roll, any subsequent disciplinary proceedings taken by the Law Society against the Respondent were an abuse of process and the Tribunal should order a permanent stay of them. 262The other defence raised by the Respondent in relation to those complaints was framed as follows: "(4)Of the remaining matters listed in paragraph 1 the Respondent does not deny the facts and particulars set out in the Application and cannot comment upon or dispute them in any meaningful way as he has little or no recollection of the files and clients concerned. PARTICULARS In 2006 the Respondent was diagnosed as suffering Bipolar Effective Disorder, a mental illness that he has had since is[sic] late teenage years or early 20's. The Respondent is now aged 66 and is thought to have had the mental illness for about 45 years. This mental illness is incurable but controllable with medication and treatment. The Respondent has been taking prescribed medication since his diagnosis in 2006 and continues to receive medical treatment." 263It is common ground that the Respondent was an inpatient at Northside Clinic from 3-18 January 2006 and during that time was diagnosed with Bipolar Effective Disorder, alcoholism, and gambling addiction. 264In proceedings 092017 the Respondent did not rely on any affidavit evidence by any medical practitioner or other health professional. The only Affidavit filed on his behalf is his Affidavit of 13 June 2012. He refers in that Affidavit to annexures, being medical reports by Dr Paul Trott, Dr J Carne, and Dr S Phillips. 265Dr Trott's report is dated 26 October 2009. He is a Consultant Psychiatrist practising in Queensland. He refers to the Respondent as having had: "Partial treatment responses with various psychotropic medications including the mood stabilizer Lithium Carbonate and the SSR1 antidepressant Fluoextine. However, he would still suffer cyclical major depressive mood swings of a moderate to severe severity as well as in between hypo-manic states. The clinical picture has also been complicated by a gambling addiction. "More recently, Mr Fitzsimons has made some treatment gains through the addition of another mood stabilizer, Quetiapine, a typical antipsychotic complimenting the action of the Lithium carbonate. Despite various dose adjustments to these mood stabilzers Mr Fitzsimmons still experiences a cyclical mood change though of a lesser severity (both in duration and caseness). ... "Given Mr Fitzsimmons longitudinal history of recurrent moderate to severe major depressive episodes and hypermanias as part of a Bipolar Disorder; and especially the impact of these on his occupational capability, as well as his Bipolar illness being susceptible to various stressors in the occupational, inter-personal, and social arenas; it is clinical recommendation that Mr Fitzsimons medically retire from legal practice as a solicitor. That is, Mr Fitzsimons' Bipolar Disorder which is chronic and permanent, as well as there being partial treatment responses, is such that it renders him permanently unfit to practice." 266The report of Dr Trott did not disclose that the doctor had any knowledge or information about the extensive history of dishonest and fraudulent conduct from 2001 to 2006 inclusive. 267There is no explanation as to why such dishonest and fraudulent conduct might occur in that period and not in the previous 32 years when the Respondent was suffering from untreated Bipolar Effective Disorder, practising as a solicitor, but apparently not indulging in such extensive dishonest and fraudulent conduct. 268The report of Dr Carne is extensive. It is dated 9 May 2011. Dr Carne is a Consultant Psychiatrist and Con-joint Senior Lecturer in the Faculty of Medicine at the University of New South Wales. 269The Respondent disclosed to Dr Carne in much greater detail the extent of his gambling problem. He said he had a gambling habit of spending about $50.00 a weekend from time to time until the early 1990's and then started to use a computer program for gambling. He increased his spending on gambling to about $1,000.00 per week. In March 2004 the TAB offered him a $5,000.00 weekly credit facility. With this facility at time he was losing $15,000.00 per week. He told Dr Carne this: "was still funded from his business income". But obviously by 2004 he was already misappropriating substantial funds from clients. 270In late 2004 the TAB organisation offered him a $10,000.00 a week credit line, but he said he rejected it. He said he later also refused a $20,000.00 a week line of credit. In 2005 the TAB gave him a computer to use at his holiday home in Cairns so that he could keep gambling while away. 271The only dishonesty or fraudulent matters that the Respondent told Dr Carne about were those for which he was convicted and sentenced by the District Court. 272He told Dr Carne that he was under psychiatric treatment till December 2006 when his condition: "then deteriorated and he returned to psychiatric treatment with a further admission to hospital. There the diagnosis was confirmed and he was discharged again on treatment. In 2007 he was re-admitted, this time to Cairns Base Hospital for further treatment and subsequently he attended Dr Paul Trott from February 2009 ..." 273He told Dr Carne the offence he committed in 2002 occurred when he was depressed about his unsuccessful new legal partnership. He said he committed no offences in 2003, but was continuing gambling. He said that in 2004, 2005 and 2006 the offences were committed to pay gambling debts. 274Dr Carne said in his report that he had seen the Respondent for treatment sessions on seven occasions in the period 13 October 2010 to 4 May 2011. He said that the Respondent had complied with his treatment recommendations and all his requests for blood tests and had not displayed any psychiatrically significant abnormal mood state. The Respondent told him that he had not been gambling, but had been drinking 1 or 2 standard units of alcohol on some, but not all nights of the week. 275Dr Carne's diagnosis was that the Respondent was suffering from Bipolar Effective Disorders with periods of depression and mood elevation probably long-standing, but the date of on-set was unclear. He said he was also suffering from alcohol abuse/dependence. He said: "Mr Fitzsimons probably suffers from long standing Bipolar Effective Disorder and alcohol abuse/dependence. His behaviour at the time of the offences was probably effected to a significant degree by abnormalities of mood although, because of Mr Fitzsimons poor recall of his mood states during the various periods of offending, it was not possible to draw a direct causal relationship between mood and behaviour." 276He said he did not believe that the Bipolar Effective Disorder could be described as reversible, but it would respond to treatment: "Which, when effective, leads to the abolition of symptoms ..." He said it was difficult to predict whether the Respondent would, with medication, pathology and psychiatric supervision, live a normal life. 277He said for the Respondent to be stable, he required to refrain from gambling, alcohol misuse, comply continually with psychiatric treatment, have ongoing domestic stability and social support, then he would be employable in a legal practice. 278In answer to a question about the likelihood of the Respondent re-offending, Dr Carne said that with the requirements he had detailed in relation to stability, there was a good prognosis and: "in these circumstances, in light of Mr Fitzsimons' remorse, acceptance of responsibility for his offences, and his wish to rehabilitate himself socially and professionally, provided that he remains mentally well, I believe that there is little likelihood of offending." 279It is noted that in terms of social stability and social support, the Respondent and his wife separated in 2006. Dr Carne apparently was not aware of that and he also was not aware of the Respondent's continuing dishonesty in the Court and Tribunal proceedings since the diagnosis of Bipolar Effective Disorder and commencement of Treatment. He also relied upon what he saw as the Respondent's "desire to rehabilitate himself socially and professionally" but the Respondent's conduct since 2006 does not demonstrate any serious commitment to ethical standards. 280Dr Phillips report is dated 10 December 2009. Dr Phillips is a General Practitioner practising at Clifton Beach in Queensland. His report is addressed to the Presiding Judge in the District Court for the sentencing of the Respondent in relation to the criminal charges. It does not relate to the Respondent except that it recites how the Respondent was arrested by the Police for criminal charges when the family were about to travel from Sydney airport to Singapore for a holiday. It relates also that the Respondent's wife suffered depression after that incident and that her progress in terms of her mental health had been slow. He said she still suffers from panic attacks, fear at airports and exacerbated fear when seeing uniformed Police Officers. He said that she: "continues to show high levels of stress, anxiety and depression with hyper-vigilance all of which have been compounded by her recent diagnosis with breast cancer". 281She was diagnosed with breast cancer in June 2009 and underwent two major operations in the Sydney Hospital for breast cancer and reconstruction. She was discharged in November 2009, and returned to Queensland and has been under the care of Dr Phillips since then. She said that the Respondent had agreed to be her carer and had been caring for her 24 hours a day. His opinion was that she would require two further operations, the first on 20 January 2010 and the second at a later date. He anticipated that the Respondent would be needed to care for his wife for the next six months. There is no mention in Dr Phillips' report of the fact that the Respondent and his wife separated in 2006. 282The medical reports relied upon by the Respondent have two important defects. The first is that the information provided by the Respondent to the doctors omits some material facts, such as the full extent of the fraudulent conduct of the Respondent in the period 2001 to 2006, his serious dishonest conduct in relation to subsequent proceedings in Courts and the Administrative Decisions Tribunal subsequently, the separation of the Respondent and his wife in 2006, her stress after his arrest, her serious health problems, and the demands upon him as her carer. 283These problems, without further evidence, place in serious doubt the validity of the diagnosis of Bipolar Effective Disorder. They also refute Dr Carne's opinion that the Respondent would not reoffend and are inconsistent with his opinion that the Respondent might be a fit and proper person to be employed in a legal practice. 284There is another problem about that medical evidence. That is that it does not discuss or explain what connection, if any, there is between the extensive dishonest and fraudulent conduct from 2001 to 2006 inclusive and the condition of Bipolar Effective Disorder. There is no explanation as to why the Respondent for the 32 years from 1969 to 2001 practiced as a solicitor but apparently his then untreated mental illness did not lead to dishonest or fraudulent conduct of the type proved in 2001 to 2006 inclusive. 285And, of course, Dr Trott has indicated his opinion that he believes the Respondent is not suitable to continue to practice as a solicitor and should retire "medically unfit".
THE Respondent'S DEFENCE TO APPLICATION 122019 286The Respondent was an inpatient at Northside Clinic from 3-18 January 2006 receiving psychiatric treatment. Since then according to the Respondent's Affidavit of 27 January 2011, he has ceased taking his medication twice, resulting on the first occasion in him being re-admitted to Northside Clinic from 29 August 2006 to 15 September 2006, and on the second occasion being admitted to Cairns Base Hospital Psychiatric Unit in early September 2007. 287The Respondent was under the care of his psychiatrist, was medicated, abstained from alcohol and gambling, and was well on 17 February 2006 when he swore his Affidavit of that date, on 17 December 2009 when he made those submissions in the District Court before Syme DCJ, on 11 July 2011 when he swore his Affidavit of that date in the Supreme Court proceedings by the Prothonotary, on 28 January 2012 when he swore his Affidavit in the proceedings in the Administrative Decisions Tribunal involving his wife, on 24 April 2012 when he gave oral evidence in the Administrative Decisions Tribunal in the proceedings against his wife, on 27 May 2012 when he swore his Affidavit of that date in the same proceedings, and on 13 June 2012 when he swore his Affidavit of that date in these proceedings. 288The professional misconduct alleged in Application 122019 all occurred at times when there is no evidence attributing it in any way to his Bipolar Effective Disorder, alcoholism or gambling. 289The Tribunal is comfortably satisfied that the Respondent has intentionally engaged in professional misconduct when his Bipolar Effective Disorder and his alcoholism were controlled and he was not gambling.
CONCLUSIONS 290The Tribunal is comfortably satisfied that the Respondent has between 2001 and 2012 (inclusive) repeatedly engaged in dishonest and fraudulent conduct. That is a period of about 11 years. The Tribunal does not accept that this dishonesty is attributable to a mental illness, alcoholism or a gambling addiction. His conduct the subject of application 122019 involves knowingly giving false evidence to courts and tribunals. 291In the period 2001 to 2012 the Respondent has engaged in extensive incidents of professional misconduct. Those incidents have all involved dishonesty and those in 2001 to 2006 have mostly involved fraud. 292The Tribunal finds that the Respondent is either unwilling or unable to fulfil his duty to a client, a court or tribunal and to fellow members of the profession to act with honesty and integrity. 293The Respondent is not a person of sufficient honesty and integrity to engage in legal practice. 294The evidence well establishes that the Respondent is not a fit and proper person to engage in legal practice and his name should be removed from the Roll.
COSTS 295Subsection 566(1) of the Legal Profession Act 2004 provides: (1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. 296There is no evidence of any exceptional circumstance supporting any other order than an order that the Respondent pay the Applicant's costs.
ORDERS 297The Orders of the Tribunal therefore were:
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: 10 April 2013
Council of the Law Society of NSW
Fitzsimons