(a) make 1 or more of the orders mentioned in subsections (3) to (5); or

(2) The ACAT may find an Australian legal practitioner guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct.

(3) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed from the local roll;

(b) an order that the practitioner's local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

(i) stated conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a stated period; and

(iii) states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;

(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

1. Subsection 3(a) is later referred to in section 431(3) as follows:

_(3) If the ACAT makes an order recommending that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll - _

(a) a copy of the order may be filed in the Supreme Court; and

(b) the Supreme Court may order the removal of the name from the roll.

1. The relationship between section 425(3)(a) and section 431(3) has been discussed in two Full Court of the Supreme Court of the ACT cases: Law Society of the ACT v Powrie [2017] ACTSCFC 4 (Powrie); and, Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 (Bandarage).
2. In Bandarage, the Court, (Murrell CJ, Loukas-Karlsson J and Walmsley AJ) said of the sections:

Section 431(3) of the LPA gives the Court statutory discretion to remove the name of a local lawyer from the local roll if the Tribunal has recommended that the practitioner's name should be removed. Under s 425(3) of the LPA, if the Tribunal finds a practitioner guilty of unprofessional conduct or professional misconduct, the Tribunal may recommend that the practitioner's name be removed.

As stated above at [134] and below at [147], the Court is not bound by the Tribunal's recommendation of removal and is required to form its own independent assessment of whether, given the conduct that has been proven, the practitioner is a fit and proper person to practise law: Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279; Powrie at [87]. [1]

1. In the course of that case, the Court referred to the following paragraph of Powrie (Murrell CJ, Burns and Elkaim JJ):

Although we are bound by the essential factual findings of the ACAT and its characterisation of the practitioner's conduct as professional misconduct, we are not bound to accept the recommendation of the ACAT. We must make our own determination of whether the conduct engaged in by the practitioner warrants the removal of his name from the roll. We have no doubt that the law applicable to this question is the same in these proceedings as it is in proceedings under the inherent jurisdiction of the Court. [2]

When one considers the statutory regime in the LPA as a whole, including the authority given to the ACAT to determine whether conduct constitutes professional misconduct or unsatisfactory professional conduct, and the availability of appeals from such determination, it is impossible to conceive that the legislature intended that this Court, in determining whether to accept and act upon a recommendation of the ACAT that the name of a practitioner be removed from the roll, would engage in a review of those determinations. To construe the relevant provisions of the LPA otherwise would be to effectively grant the practitioner a right of appeal outside the terms of the statute. Such a construction would also negate the very purpose of the provisions, because there would effectively be no difference between the Court considering a recommendation of the ACAT under s 425 of the LPA, and the exercise of its inherent jurisdiction. In the statutory process for disciplining practitioners found in the LPA, the legislature has seen fit to bestow upon the ACAT, and not upon this Court, the authority to make findings of fact and to determine how the facts as found are to be characterised. To construe the LPA as submitted by the practitioner would be to render that conferral of authority nugatory. [3]

1. The Tribunal concludes that it is appropriate when considering whether to make a recommendation of removal under section 425(3)(a) that it make a finding whether a practitioner is a fit and proper person to remain a practitioner. That is because the legislation as interpreted in the decisions referred to, does not preserve that opinion only for the Supreme Court within the disciplinary process. That would be the situation if the application were to be made solely invoking the reserve powers of the Court. The Tribunal is conferred with the jurisdiction to make the recommendation under the disciplinary processes of Chapter 4 of the Act, and the object of the recommendation, on the authorities, necessarily involves a decision as to whether the practitioner is a fit and proper person to practise law in the Territory. The recommendation having been made, it is for the Court to determine whether the practitioner should remain on the roll based on the findings of the tribunal.

1. The applicant contends that the following three orders should be made:[4]

(a) an order recommending that the name of the respondent be removed from the roll pursuant to section 425(3)(a) of the Act;

(b) an order that the respondent's practising certificate be cancelled pursuant to section 425(3)(b) of the Act with the cancellation to take effect immediately upon the appointment of a manager to his law practice; and

(c) an order that the respondent pay the Council's costs pursuant to section 433 of the Act.

1. The authorities establish that the role of the tribunal is a protective one. There are references in the authorities to the sanctity of a solicitor's trust account. An early one was Re a Practitioner [1941] SAStRp 11; [1941] SASR 48 where the Full Court said:

... a practitioner's trust account should be sacred, so that moneys paid into the account should only be paid out to the persons to whom the moneys belonged, or as they directed.

1. This statement was quoted with approval by King CJ in Re a Practitioner (1982) 30 SASR 27 at [30]-[31].
2. Bell J used the same descriptor in Legal Services Commissioner v Rushford [2012] VSC 632; (2012) 38 VR 141 at [39] as follows:

A lawyer's trust account is sacred. Trust monies belong to the client and must be kept and disbursed strictly in accordance with the legal requirements. Failing properly to manage a trust account and deal with trust monies is not just evidence that someone is not a fit and proper person to practise law. It brings the legal profession into disrepute.

1. The basis for the Tribunal recommending the removal of the name of the respondent from the roll is that he is not a fit and proper person to practise again as a practitioner of the Court. A statement to that effect which is often quoted is found in New South Wales Bar Association v Cummins [2001] NSWCA 284 (Cummins). It is a statement by Spigelman CJ with the agreement of Mason P and Handley JA at paragraph [26]:

An order for the involuntary removal of the name of a practitioner from the roll of solicitors is made only because the probability is that the solicitor is permanently unfit to practise. Unless the Court is persuaded that the probability exists, the proper order to make will usually be one of suspension or fine instead of removal.

1. In Dupal v The Law Society of NSW [1990] NSWCA 56 at page 1 (Dupal), Kirby P said that misuse of funds received by a solicitor on behalf of another ordinarily requires removal from the roll. There are many other similar statements. The respondent cited a number of cases which could be regarded as exceptions to the rule by virtue of exceptional or special circumstances. They do not in the view of the Tribunal derogate from the principle stated by Kirby P being the 'ordinary' circumstance.
2. In a recent case involving section 425(3), and section 431(3), Bandarage (Murrell CJ, Loukas-Karlsson J and Walmsley AJ), the Court said at [148]-[149] the following:

Removal from the roll is reserved for the most serious cases of wrong conduct, where the character and conduct of the practitioner is assessed to be inconsistent with the privileges of further practice; suspension may be adequate in those cases where a legal practitioner has fallen below proper standards, but not to the extent that would indicate that the practitioner lacks the necessary attributes of a person entrusted with the responsibilities of legal practice: Barristers' Board v Darveniza [2000] QCA 253.

In general, removal is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration: Cummins at [25]-[27]; Parente at [33]. In Parente at [34], Basten and Meagher JJA indicated that, where a practitioner has manifested a serious character flaw that would justify removal, it is for the practitioner to affirmatively satisfy the court that the unfitness was, or is, of limited duration.

1. The reference to Cummins has already been given, but Parente is reported as Council of the Law Society of New South Wales v Parente [2019] NSWCA 33. In Parente the Court said that reputation was relevant to the purposes of disciplinary powers, which include "to maintain public confidence in the integrity and honesty of the profession".[5]
2. Character as well as reputation is relevant to whether a person is a fit and proper person to practise and is referred to in section 11 of the Act as one of the 'suitability matters'. The relevance of character was referred to by Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408 (Foreman) at page 444. He said that findings of credit may be taken into account when assessing character and likely future conduct.[6]
3. Counsel for the Society had referred to Foreman as supporting his submission that in this case a recommendation for removal not only served a protection of the public, but would also fulfil an educative one of members of the profession.

1. Four proceedings either against or brought by the respondent has been heard by ACT Supreme Court Full Courts headed by a Chief Justice. Of those four proceedings, three have resulted in a finding adverse to the respondent, the exception was a decision in 2005 restoring his name to the roll. In addition, there was a consent determination adverse to the respondent in the ACAT in March 2014 also involving trust account defalcation.
2. The history of that litigation is extensively set out in the affidavit of Robert Reis, the Professional Standards Manager of the ACT Law Society, sworn 18 April 2019 which became Exhibit 2 in the proceedings.
3. It appears from the report of the first Full Court case that the respondent was admitted to practice on 20 January 1975, and at the time of that decision practised as a sole practitioner. In 1983 the Society found irregularities in his trust account. His unrestricted practicing certificate was cancelled by the Society after investigation and proceedings for removal from the roll came before the Full Court (Blackburn CJ, Kelly and Gallop JJ) Re Legal Practitioners Ordinance 1970; Ex parte Law Society of the ACT; Re Giles (1985) 51 ACTR 1). The respondent was represented by senior and junior counsel. On the fourth day of the hearing he submitted to an order that his name be removed from the roll.
4. The following quotation taken from the Court's judgment in the 1985 report of the proceedings, gives some detail of the nature of the respondent's default. It commences at about halfway down page 2 of the report.

The allegations made by the Law Society relate to the conduct and management by the solicitor of his trust account. In respect of the quarter ended 31 March 1983 the solicitor submitted to the Law Society a report dated 7 June 1983 by the solicitor's accountant in which reference was made to debit balances in the solicitor's trust account.

The Law Society then appointed another accountant to examine the records of trust moneys kept by the solicitor pursuant to s.66 of the Legal Practitioners Ordinance 1970 (the Ordinance). That accountant, having made an examination, furnished to the Law Society a report thereof pursuant to s.66(3). The terms of that report revealed a loss or deficiency in the solicitor's trust account of $5,494.41, a failure to account for trust moneys and, inter alia, a number of failures to comply with Part VII of the Ordinance. The solicitor gave some explanations in relation to the matters raised in that report. The Law Society then appointed Miss Jean Sayer, Chartered Accountant, to examine the records of trust moneys kept by the solicitor in respect of the period 1 April 1982 to 21 May 1984, which was a more extended period than the period reported upon by the previous accountant. Miss Sayer's report to the Law Society dated 21 September 1984 stated that, in her opinion, the records of the solicitor had not been kept in such a manner as to enable her to examine them conveniently and properly. She further reported that she was unable to see whether or not moneys had been disbursed in accordance with the direction of the client concerned and that she was unable to establish the true position in respect of the client in a number of matters dealt with in the report. She was also of the opinion that there had been a deficiency of trust moneys over a period as detailed in her report, that there may have been a failure to account for trust moneys in certain matters and that, in her opinion, there had been breaches of ss. 50(1), 51(1), 51(2), 53 and 57 of the Ordinance.

1. In the report, the Court is concerned with matters other than their assessment of the nature of the breach alleged and were content to make the order sought by the Society. However, detail of the default was referred to by the Full Court, (Miles CJ, Kelly and Wilcox JJ) in the report of the first failed application by the respondent for reinstatement in the judgment of 12 October 1988.[7]
2. The Full Court deals with the facts underlying the 1985 decision commencing at page 3 of the report at page 12 of the affidavit. They firstly say that the respondent first ran into difficulties regarding his trust account after he became a sole practitioner. In 1980 when he applied for renewal of his practising certificate the Society's certifying accountant drew his attention to his failure to take out quarterly balances. As a result, the respondent wrote a letter on 30 June 1980 saying:

I assure you that I shall never overlook the due preparation of quarterly statements again.

However, defaults continued. At page 13, the judgment refers to no further trial balances being taken out until May 1983. At pages 18 and 19 two irregularities independent of formal non-compliance were identified.

1. The report of the 1988 application indicates at page 21 that the respondent submitted an affidavit in support of his application. The Court noted that the respondent said that his 'mismanagement' of his trust account was due to four factors about which he was cross examined. The Court said (page 22):

... the thrust of the cross-examination being that, even in this application, the applicant is attempting to mislead the Court by glossing over the facts which caused his disbarment.

1. At page 20 of the report, page 29 of the affidavit, the Court said:

It is an essential attribute of the fitness of a person to practise as a barrister and solicitor of this Court that the Court should be able to accept without reservation any statement of that person made to the Court by that person, upon a matter within his or her knowledge, and whether or not such statement was made upon oath or affirmation. But, of course, the fact that a statement is made on oath or affirmation renders any knowing departure from the truth by the person even more serious. It follows that, in a case where the Court concludes that an applicant for readmission has deliberately placed before the Court false evidence, the application must fail. This we regret to say, is the situation in connection with the present case.

On the following page, the Court said that they were unable to place any confidence upon matters deposed to by him which are unsupported by documentary material.

It followed that the application was dismissed with costs.

1. The respondent made a further application for restoration to the roll of the Court in 1994. The Court gave its decision (Miles CJ, Gallop and Shepherd JJ) on 17 June 1994. The decision is unreported however, a copy of the judgment of Miles CJ is at page 40 of the RR3 affidavit. There are other excerpts of the members of the Court in the reported decision of 2005 in which the respondent made a successful application for readmission.
2. The Court, in summary, took the view that there had been an improvement in his understanding and attitude, but it had been recent. They took the view that it was not yet time for readmission, but acknowledged that it could be possible in the future.
3. The respondent made a successful application in 2005 in December 2005 and was restored to the roll of practitioners. The Court, (Higgins CJ, Connolly and Marshall JJ) had before it an affidavit by the respondent in which he expressed remorse for past actions and said that he had since the last application gained significant insight into the responsibilities of legal practice.
4. At paragraph 16 of the judgment the Court quoted the following excerpt from the respondent's affidavit containing a promise to the Court in the last sentence.

Thankfully, the Law Society has been kind enough to give me the opportunity to occupy a limited role in the local legal community. Through that, I have been able to further reconsider the impact and the stresses that my past transgressions have caused the legal community and the public at large. I am profoundly sorry for the suffering and hardship that my misconduct has caused so many good people. I cannot and will never allow myself to engage in such conduct again.

When I commenced as a clerk for (a two partner Canberra firm), I sincerely believed that I had an adequate grasp of the high sense of duty and responsibility necessary to enable me to properly discharge the duties of a legal practitioner of this Court. However, with the benefit of having had the solemn experience of working with and being supervised by (the partners), I now realise how much more I had to learn with respect to the practical application of those responsibilities in the daily conduct of a legal practice. In particular, one of the most fundamental aspects of the successful practical application of those responsibilities is having the sense to be quick to seek guidance on important issues, such as potential conflicts of interest, from a fellow practitioner.

The respondent told the Court that if readmitted he would continue to work for that firm as an employed solicitor.

1. The Court decided that the respondent should be readmitted to practice. At paragraph 20 of the judgment, their reasons are summarised:

In the present case, the applicant has clearly acted on the recommendations of the earlier Full Court decisions. He has demonstrated a full understanding of the cause of his earlier misconduct and, by obtaining closely supervised employment as a law clerk, has been able to demonstrate over a long period of eight years diligent and proper conduct as an employee of a legal practice, which can give the Court confidence that he will be able to properly conduct himself in future as an employed solicitor. He has, it seems to us, demonstrated the "solid and substantial grounds" that would justify this Court in permitting him again to practice law as an employed solicitor.

1. Unfortunately, it was not to be plain sailing. On 20 February 2014, the Law Society of the ACT filed an amended application for disciplinary action in the tribunal. The Tribunal is not aware of when the initiating process was filed, but the proceedings are numbered 13 of 2013. The judgment is unreported but a copy is at page 38 of Exhibit P2. Some of the conduct complained of appears to have occurred in 2010 and 2011. The application sought orders against one of the partners of the firm and the respondent in relation to alleged trust account unauthorised withdrawals.
2. The parties met in conference and the matter was settled by consent. Both submitted to findings of professional misconduct. The agreement was approved by the tribunal on the same day, 27 March 2014. The respondent was publicly reprimanded, fined, ordered to undertake education in Trust Accounting and ordered to pay 50% of the Society's costs.

1. In his outline of submissions, counsel for the applicant referred to the factual background to the case, the charges, and the tribunal's decision. In relation to the decision of the tribunal, counsel referred particularly to the findings of the tribunal relating to the respondent's credit. Counsel also referred to relevant legal principles relating to penalty. In applying the principles he referred to, Counsel listed a number of matters which he submitted aggravated the seriousness of the respondent's conduct. They included the following:
   • (a) This is the third episode of professional misconduct involving trust money. When he was readmitted before the second finding, he said there would be no repetition of previous conduct.
   • (b) The amount of money was substantial.
   • (c) The respondent had use of the funds between September 2015 to approximately no earlier than May 2016.
   • (d) He effected the transaction contrary to his written representation to his clients leaving them feeling 'surprised' and 'tricked'.
   • (e) The various findings relating to the respondent's credit made in the decision.
   • (f) The respondent was slow to remedy the misappropriation and was dismissive of the client's complaints about the transaction.
   • (g) He had expressed remorse, but did not appear to have any real insight or understanding of his wrongdoing.
2. Counsel conceded that there were some mitigating factors, and he did refer to this episode as not having been part of ongoing misconduct or a pattern of behaviour, but these considerations were of limited effect when compared with the aggravating factors which he had listed.
3. Finally, counsel for the applicant submitted that the respondent's unfitness to practise was permanent. He pointed out the past history of default and the failed promises of better conduct in future in support of that submission.

1. The respondent submits that following the finding of professional misconduct appropriate and sufficient orders include:
   • (a) An order restricting his right to practise to that of an employee with conditions.
   • (b) A public reprimand.
   • (c) A period of suspension from practice.
   • (d) A fine.
   • (e) An order for costs.
2. The respondents' submissions are twofold, firstly that he now acknowledges and understands that he made a serious error of judgment in transferring the trust funds without authority in September 2015, particularly as he had already been subject to disciplinary action for past conduct in 1985 and 2014 regarding trust accounts and secondly that he now has systems in place in his practice such that the trust account problems cannot occur again.
3. The respondent was cross examined on his affidavit and the differences between his admissions now and during the liability hearing. The respondent stated that he should have been more open and forthcoming with information and provided straightforward answers to questions.
4. The respondent acknowledges the two previous disciplinary actions in 1985 and 2014 also relating to trust accounts. On each occasion he stated that he understood the seriousness of his breach and gave an assurance that there would be no further problems.
5. Regarding the systems in place to protect the public from future trust account problems: the respondent stated that he has a senior lawyer assisting him to manage his practice and that he will continue to retain this assistance. He also has systems in place such that he does not deal with trust accounts alone, that there is always another person involved and the process is overseen by the senior lawyer.
6. Counsel for the respondent stated that the affidavit of 6 May 2019 should be read as a whole and when read as a whole, it reflects the insight the respondent has gained into his behaviour regarding the trust accounts and his overall conduct over his career. Counsel stated that given the respondent's genuine understanding, insight and contrition, the appropriate penalty is not to remove his name from the roll but to allow the Law Society to make a decision each year about issuing him with a practicing certificate.

1. Counsel for the applicant dealt in cross examination with a number of topics most of which went to the credit of the respondent. The following is a partial summary of that cross examination.

1. Counsel took the respondent to paragraph 37 of his affidavit of 6 May 2019, Exhibit 3,[8] where the respondent says that by 8 September 2015 (the day before the transaction), that things were developing rapidly and he was aware that if the trust monies were taken under garnishee order, no-one would be paid, including counsel. Counsel took him to page 222 of Exhibit 1, which showed a breakup of the amount transferred to office and then disbursed. The respondent upon being shown those figures agreed that the balance of that amount after payment of $65,000 to counsel, was used to fund his personal and business expenses. The respondent's statement that 'no-one would be paid' is vague but is clear enough to mask that the real use of the funds for the respondent's personal and business expenses which use at least in part continued until at least August 2016. The Tribunal's view is that the respondent's statement in paragraph 37 is misleading.

1. Counsel took the respondent to paragraph 16 of his affidavit of 6 May 2019. In this the respondent says that he had not believed that the tribunal would find his conduct dishonest. He then said that but for charge 3 (the misappropriation charge) he would not have contested the application in the current proceedings.
2. During cross-examination he agreed that he contested the applicant's characterisation of the conduct in charges 1 and 2 as professional misconduct, and also sought an order during the proceedings that the application be stayed permanently on the grounds of excessive delay.
3. At page 19 the following exchange occurred:[9]

Do you accept that the only issue - I withdraw that. Do you accept that it wasn't only charge 3 which you contested in the proceeding?Correct.

1. The Tribunal concludes that the statement by the respondent in his affidavit is inaccurate.

1. The respondent was asked about a statement at paragraph 8(c) of his affidavit of 6 May 2019 in which he says that he has taken steps to change the supports around him to protect against any further breaches happening, by having obtained independent legal representation. He agreed that the legal advice he was speaking about had been obtained since the liability hearing.[10]
2. He went further in paragraph 57(i) of the same affidavit identifying errors in paragraphs 18 and 20 of his affidavit of 20 August 2018. He said that he made the erroneous statements in those paragraphs because he prepared the affidavit himself "without the benefit of objective review".[11]
3. In cross examination, counsel drew his attention to a letter of 8 December 2017 which he wrote to the applicant's solicitors in which he said: "I have now retained Mr Stretton SC to assist me"; and that he would be able to deliver a full brief to Mr Stretton by 11 December 2017. Mr Stretton sent submissions on behalf of the respondent to the professional standards manager on 31 January 2018 and represented him at the liability hearing.
4. At page 24 the following exchange took place.[12]

You have legal representation being provided to you, by Mr Stretton of senior counsel, at all times from December 2017, until the liability hearing in this matter, which concluded in November 2018, is that correct?Yes.

1. The Tribunal concludes that the information provided by the respondent in paragraphs 8(c) and 57(i) is misleading. They convey the meaning that the respondent was unrepresented during a period in which he had engaged Mr Stretton. Objective review was available, and paragraph 8(c) only becomes accurate if the descriptor 'new' is added to qualify 'independent'. The Tribunal regards the information provided as being misleading.

1. Counsel took the respondent to a position paper he had prepared in connection with the proceedings conducted in ACAT in 2014. By way of background he established that in those disciplinary proceedings, the principal of the firm for which the respondent worked was charged with wrongfully withdrawing trust funds at the request of the respondent. He then established that the respondent was charged with requesting that the funds be withdrawn. He established that the respondent had been the recipient of the funds.[13] He also agreed that it was charged against him that he knew or should have known that the payment to him of those funds amounted to a breach by the principal. He agreed to consent orders being made as charged.
2. The respondent prepared and filed a position paper for the Tribunal for the purposes of the penalty hearing on the offences being admitted. That position paper contained an assurance of a trust account practice adhered to by the respondent who had in 2012 established his own practice. The terms of the practice are referred to by counsel in the exchange in cross-examination quoted below. The quote is also at pages 46 and 47 of Exhibit P9.

Then can I ask you to go over the page, Mr Giles, to page 47, and dealing with the first paragraph on that page, Mr Giles, which is a continuation of subparagraph (g), in the last sentence of that paragraph you have said:

Additionally, I have a rigid procedure in place that no funds are to be disbursed from the trust account, under any circumstances, unless they are first specifically authorised, in writing, by the client as well as by me.

That is what you have set out in this position paper, Mr Giles?Yes.

I take it, Mr Giles, that you set that statement out in this position paper because that is something which you wanted the Law Society to take into account, in relation to whether they would consent to orders being made by the tribunal, is that correct?Yes.

And it is something which you wanted the tribunal to take into account in making consent orders, is that correct?Yes.[14]

1. There were further questions about that paragraph of the affidavit and the email by the respondent to the clients at page 53 of Exhibit P9 in which the assurance is repeated but with a qualification. The respondent agreed that if he had taken the assurance that he had given to the Tribunal in the affidavit seriously he would have been mindful of the need to adhere to it in relation to all trust funds.[15] He also agreed that his transaction of 9 September 2015 was incompatible with the assurance he had given the Tribunal.

1. The consideration of penalty in this case presents some unique facets. The respondent now has three findings of professional misconduct recorded over a period of thirty four years. All have been associated with trust accounting transgressions. He made two applications for reinstatement which failed. The first was shown to be without merit but the Court commented on progress in the second which probably paved the way to the successful third application.
2. The successful application to the Court was in December 2005. The offending conduct occurred when he was employed as a solicitor in 2010 and 2011. The conduct occurred with a partner in the firm for which he worked. Consent findings of professional misconduct were made in the Tribunal in 2014. Penalties were imposed, but he retained his entitlement to practise.
3. The conduct in the present proceedings occurred in September 2015, approximately 18 months after the ACAT proceedings in 2014. He had prepared a position paper which has already been referred to which assured the Tribunal that he had a rigid procedure in place so that no funds would be disbursed from trust without being specifically authorised by the client. An assurance of that nature was given to the clients in this case with no observable effect.
4. The default in 2010 and 2011 came after his filing an affidavit in the restoration proceedings in which he assured the Court that he was profoundly sorry for the suffering and hardship that his conduct had caused and would never allow himself to engage in such conduct again. Later in the same affidavit he assures the Court if allowed to practise he would never fall short of the standards expected of a practitioner.
5. The respondent has tendered evidence from two senior, experienced members of the profession whose views the Tribunal respects and accepts.
6. Mr Barnett has been President of the Law Society and an officer of the Society for many years. He has been the principal of a firm comparable in size to that of the respondent. He confirms the proper conduct of the respondent's firm on a day to day basis. He considers the respondent to have good relationships with his clients and is efficient in his dealing with his business. He is supportive of the respondent to the extent that he ventures the opinion that the respondent should be permitted to continue to run his legal practice. If that happened, he would be prepared to continue to supervise the practice.
7. Mr Clapham has also had extensive experience and says that he now acts as a senior consultant to a number of Canberra based firms. He was first appointed as manager of the respondent's firm in October 2016 for twelve months. He has had extensive contact with the respondent and his practice since that time and is satisfied with his work. He says he meets with the respondent on a regular basis in relation to the management of the trust account and provides ongoing support on an informal basis.
8. He is prepared to act as the mentor to the respondent, a position described in an annexure to his affidavit. At paragraph 18 of this affidavit he says that in his opinion there is no discernible risk of harm to his clients or the general public should the respondent be permitted to continue to practice.
9. Mr Senatore is a business consultant who has been engaged to review the business systems and practice management of the respondent's practice. He has done this and prepared a report. He says that he assesses the practice management as low risk because of the controls and systems currently in place. The respondent has engaged him to work with him for 12 months to implement his recommendations.
10. The respondent's case for avoiding a recommendation for removal is based on his insight, contrition and remorse together with his submission that with the professional structure to support him, the chance of future infractions is minimal.
11. The Tribunal recognises that the insight of an offender into his or her offending behaviour is a significant factor in penalty assessment. In its decision the Tribunal rejected the respondent's claim that he had made the transfers under a mistaken belief honestly held. In spite of that finding, in his affidavit of 6 May 2019 after formal matters, the respondent's first statement was that he "made an egregious error of judgement on 9 September 2015". Furthermore, material in his affidavit filed in these proceedings under the headings "Current Proceedings" and "My Conduct" he indicates a willingness to re-litigate many of the issues arising in the liability proceedings.
12. In spite of this demonstrated lack of insight into the Tribunal's findings, he declares in paragraph 7 of the same affidavit that "I did not get it at the hearing of the current proceedings, but I definitely get it now". The Tribunal does not agree. We consider that his insight into the September 2015 transaction is minimal and as a consequence his declarations of remorse although probably genuinely held, must be regarded as transitory, being founded on an imperfect understanding of the basis of his transgression, and are "borne of present necessity and the inevitability of close scrutiny_"_.[16]
13. The Tribunal agrees that one layer of protection for clients and the public would probably be established by the support proposed for future conduct of his practice. However unless, at the centre, the person who is actually and nominally conducting the practice is a fit and proper person to do so, then there can be no confidence that this is the case.
14. The first suitability matter referred to in section 11 of the Act is that a practitioner be of good fame and character. There are many matters of evidence relevant to fitness to practise and fame and character which have been dealt with in the course of now two hearings and the now two decisions that have resulted.
15. The two findings of professional misconduct which precede the finding in this case do not stand alone. Reference has been made to the first application for readmission in which the Court said the respondent had deliberately placed false evidence before the Court. The applicant has drawn attention to promises of improved conduct made by the respondent only to be followed by further misconduct.
16. In the course of the present proceedings, there has been a finding of professional misconduct arising from three charges one of which involved misappropriation. In addition to that, the respondent has provided incorrect information to the Law Society in the course of its investigations resulting in the application for disciplinary action, and to the Tribunal in the material used in the liability hearing. Evidence he gave in the course of the liability hearing has been rejected by the Tribunal. The closing submissions of the applicant at the conclusion of the evidence commenced with a comprehensive examination of the respondent's credit, resulting in a number of findings adverse to the respondent's credit being made by the Tribunal in response to them. Cross examination of the respondent by the applicant's counsel in the recent hearing revealed further material adverse to his credit.
17. An assurance given by the respondent to the Tribunal in 2014 on his second disciplinary hearing, was also given in writing to his clients in this matter. His breach of that assurance by the conduct the subject of these proceedings, left them surprised, feeling tricked and contemplating litigation. His understanding of the significance of this infraction revealed by his cross examination in these proceedings was in the view of the Tribunal shallow and somewhat confused.
18. The view of the Tribunal is that the respondent is not of good fame and character and is not a fit and proper person to remain a practitioner of the Supreme Court of the Australian Capital Territory. It is further satisfied, that condition is likely to be permanent having regard to all the evidence. The Tribunal acting pursuant to section 425(3)(a) of the Act will recommend that his name be removed from the local roll.

Council of the Law Society of the Australian Capital Territory

[4] Applicant's outline of submissions at [4.1]

[7] In the matter of the Legal Practitioners Ordinance and in the matter of the application of Charles Filgate Giles to be admitted as a Barrister and Solicitor unreported ACT Supreme Court 12 October 1988

[8] Transcript of proceedings 3 June 2019 page 13

[9] Transcript of proceedings 3 June 2019 page 19

[10] Transcript of proceedings 3 June 2019 page 22

[11] Transcript of proceedings 3 June 2019 page 22

[12] Transcript of proceedings 3 June 2019 page 24

[13] Transcript of proceedings 3 June 2019 page 26

[14] Transcript of proceedings 3 June 2019 page 27

[15] Transcript of proceedings 3 June 2019 page 35