Ex parte Lenehan [1948] HCA 45

[16]

There is some suggestion that the appellant's bank account was at that date overdrawn to a greater extent than £250, but, whether that was so or not, he did not pay to his aunt any part of the amount of £410 19s. 8d. It is not shown that his account was in truth overdrawn more than £250, and on the assumption that it was not so overdrawn he must afterwards have drawn, presumably for his own purposes, the difference, i.e. £160 19s. 8d. for which he ought to have accounted to his aunt at the time when the mortgage was paid off. His aunt had, it seems, no banking account on which cheques could be drawn, and the appellant says that her moneys, or some of them, went through his account. It does not appear that he ever paid his aunt the £410 or any part of it, nor does it appear what were his subsequent relations with his aunt, who is now dead. What does appear is that some time afterwards, at a date which Elliott fixes as 13th May 1929, Sarah Lenehan had some communication or conversation with him from which it seemed that she thought he had not repaid the loan she had made to him. He produced afterwards a letter from her undated requesting payment which he ascribed to that date, but the appellant says that it is the letter he wrote for his aunt to sign before the loan was paid off. That is not improbable, and in any case Elliott's statements deserve little or no credit. The appellant said that his aunt's memory was poor and that in the presence of his brother and sister he reminded her of her visit to the bank. She recalled the facts and said she would tell Elliott. In an affidavit the appellant spoke of his aunt guaranteeing his account, an inaccuracy to which some exception has been taken. It is an inaccuracy to which it seems hard to attach any significance, and one which has no point. For Sarah Lenehan had made her property, the second mortgage, which was worth £400, liable for the appellant's bank account up to £250 and for any purpose of explanation, mitigation or excuse on the part of the appellant, it is quite immaterial whether she had also incurred a personal liability to the bank.

[20]

(c) When the appellant left Elliott's employment and joined V. J. Brady the latter arranged to pay the appellant, in addition to salary, one-third of the costs from clients brought to Brady by the appellant. As to one client, an insurance company, the appellant was to receive a higher proportion after the costs reached a certain amount. The appellant received costs and made disbursements and as it seems handled moneys, at all events from the clients he brought, as if he were a principal. When in February 1931 the appellant left Brady's employment an account was made up and agreed between them which made the appellant Brady's debtor in the sum of £97 14s. 3d. The account is not easy to understand. One column consists of amounts received in respect of matters connected with the insurance company. They total £96 16s. 2d. From that the appellant's one-third, or £32 5s. 4d. is deducted, leaving £64 10s. 10d. The second column, headed "ordinary," consists of three items amounting to £31 14s. 8d. The third column is headed "disbursements" and consists of items, with the name of the client or matter, producing a total of £16 8s. 3d. These three totals are added together, the first being called "costs due," the second "ordinary" and the third "disbursements." The resulting total of £112 13s. 9d. is called "joint statement commission owing" and from it salary and other items are deducted, leaving the amount of £97 14s. 3d. owing to Brady by the appellant. The appellant says that further costs were to come in his third of which would have resulted in the reduction of the liability but that his father-in-law, whose aid apparently was invoked, thought it better to settle the matter and to pay the above amount. Brady, in enclosing the account to the appellant's father-in-law, said that certain amounts were outstanding and, when he received them, due allowance would be made of any amounts due to the appellant. It is difficult to understand why the disbursements should be added and not be deducted unless the appellant had received the amount of them from the client as reimbursement notwithstanding that he had disbursed them from his employer's moneys. This may be assumed to be the case, and it is a fact counting, and somewhat heavily, against the appellant. The appellant's version in 1934 and 1937 was that the whole matter was one of ordinary accounting at the end of his service for moneys coming into his hands and that it involved no charge of dishonesty or impropriety. He said that he left Brady's employment because, owing to the depression and the falling off of work, Brady found that he could no longer afford to employ him at the salary and on the terms arranged. Brady in an affidavit filed in 1934 in support of Elliott's application to be restored to the roll attacked the appellant and said that he dismissed him for misappropriation, which he admitted. This is entirely denied by the appellant. Brady had given the appellant a credential which said that owing to a re-arrangement of his staff in 1931, he was compelled to dispense with the appellant's services. It is apparent that caution must be exercised in using against the appellant what Brady said in reference to him and in support of Elliott; and counsel for the Law Institute did not suggest that great reliance should be placed upon his statements.

[34]

The heads of that department, which is a large one and involves the handling and disposal of trust funds and other moneys, have in succession expressed highly favourable opinions of his work and character. These opinions are confirmed by an affidavit of a solicitor, Mr. Young, of the firm of Primrose, Young & Primrose, who before he joined that firm was associated with him in the Bank. The appellant joined the Australian Military Forces in 1935 and on the outbreak of war in September 1939 he went into camp. In August 1940 he obtained a commission in the second A.I.F. and was engaged upon war service until 24th April 1946, when he rejoined the Bank. His rank is now that of major. He served in the Middle East from 1940 until his return to Australia in 1943 after the battle of El Alamein. He served as a regimental officer and afterwards as a staff captain. In March 1944 he was sent to London where he held various appointments on the staff of the Australian Headquarters. He was afterwards attached to 21st Army Group as a liaison officer and saw service in Europe. Later still he was attached to the Supreme Headquarters Allied Expeditionary Force. He produces highly commendatory certificates from a number of commanders under whom he served. When the appellant's application was referred to the Council of the Incorporated Law Institute with a view of obtaining their observations upon it, the council expressed the view that while he was deserving of commendation for his distinguished war service, yet in view of his past conduct in the profession his war service did not appear to have been of such a nature as necessarily to afford a guide as to whether he is a fit and proper person to be admitted as a solicitor and to have the care and custody of trust moneys. This led to the filing of an affidavit by the appellant that made it plain that during various parts of his war service the responsibility of handling, paying out and administering considerable funds had rested upon him, regimental funds, petty cash, unit fortnightly pay and much besides.

Ex parte Lenehan [1948] HCA 45 - HCA 1948 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)