Law Society of New South Wales v Feeney

NCAT Occupational|2018-08-10

Solicitors: Law Society of NSW (Applicant) Ziman and Ziman (Respondent) File Number(s): 2017/00383009

Introduction

The Law Society of New South Wales (the Applicant) has brought an application against the solicitor (the Respondent) seeking the following orders: 1. That the name of Judy Anne Feeney be removed from the roll; 2. That Judy Anne Feeney pay the costs of the Applicant as agreed or assessed; 3. Such other order as the Tribunal deems appropriate.

The Grounds in the Application

We summarise the grounds in the following paragraphs.

Ground 1 - Breach of section 255 of the Legal Profession Act 2004

The law practice acted for vendors of certain real estate known as the Kellyville Project. In November 2013, deposits were paid into the trust account of the law practice totalling $167,990.00. On 5 November 2013, the amount of $329,140.00, which included the above deposits was withdrawn from the trust account and was deposited into an account in the name of EDI Kellyville Pty Ltd. The Respondent was a director and shareholder of that company.
By reason of the above matters, the Respondent has breached s 255(1)(a) and (b) of the LP Act.
Further deposits were received in the respect of the Kellyville Project in respect of the sale of lots 3 and 4. Those deposits each totalling $25,850.00 were part of the amount of $329,140.00 withdrawn from the trust account of the law practice and paid to the account of EDI Kellyville.
The Respondent acted for the vendor of lot 9 in the Kellyville Project and Mango Conveyancing acted for the purchaser. The Respondent was associated with Mango Conveyancing in or around 2013 in that the Respondent practised by reference to or under the name of Mango Conveyancing. The sum of $25,412.50 was received into the trust account of the law practice from the purchasers of lot 9 on 30 September 2013. The trust ledger for this matter records a number of disbursements were paid from the trust account. By reason of these matters, the Respondent has breached s 255(1)(a) and (b) of the LP Act.
On 25 November 2013 the law practice received a deposit of $55,000.00 in respect of lot 10 of the Kellyville Project and that money was paid into the trust account. Certain disbursements were made from that trust account, including a payment of $18,329.00 to EDI Kellyville Pty Ltd. By reason of these matters, the Respondent breached s 255(1)(a) and (b) of the LP Act.
In November 2013 a deposit in respect of lot 15 was received and that amount was included in the amount of $329,140.00 which was withdrawn from the trust account of the law practice and paid into an account in the name of EDI Kellyville Pty Ltd. By reason of these matters, the Respondent has breached s 255(1)(a) and (b) of the LP Act.

Ground 2 - Misappropriation

The deposits paid by purchasers of lots 1, 2, 5, 7, 8, 12, 13, and 15 in the Kellyville Project were to be held in the trust account of the law practice. The Respondent acted for the vendor in respect of those sales and was a director of EDI Kellyville Pty Ltd. By reason of the transactions summarised in the above paragraphs, the Respondent has misappropriated the deposits totalling $238,240.00. In addition, the Respondent misappropriated part of the deposit for lot 9 in the amount of $20,296.65. In addition, the Respondent misappropriated the deposit for lot 10 in the amount of $55,000.00.
In January 2014, the Respondent repaid the amount of $18,550.00 being part of the deposit (less commission) received by the Respondent from the purchasers of lot 15 to the agent.
The Respondent repaid the amount of $19,145.00 being that part of the deposit (less commission) received by the Respondent from the purchasers of lot 13 to the agent on or before 21 March 2014.
The Respondent repaid the amount of $18,550.00 being that part of the deposit (less commission) received by the Respondent from the purchasers of lot 14 to the agent on or before 21 March 2014.
The Respondent repaid the amount of $19,250.00 being that part of the deposit (less commission) received by the Respondent from the purchasers of lot 16 to the agent on or before 21 March 2014.
On 10 February 2014, the Respondent paid $330,317.75 to the agent being for the balance of deposits in respect of lots 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 and 16 in respect of the Kellyville Project.
In summary, the Respondent repaid the amount of $408,812.75.

Ground 3 - Breach of section 255 of the Legal Profession Act 2004

On 23 July 2013, the sum of $4,863.96 was paid to the law practice in respect of matters in which the Respondent acted for Mr Flowers. That payment was not authorised as no costs agreements existed or no direction or authority to draw the amounts making up $4,863.96 existed. By reason of those matters, the Respondent breached s 255(1)(b) of the LP Act.

Ground 4 - Misappropriation

The trust account bank reconciliation as at 31 July 2013 (signed by the Respondent) disclosed overdrawn matters totalling $42,806.57. The Respondent misappropriated $42,806.57 as the overdrawn amount constituted use of the trust money which was not held on trust for the benefit of the client and to which the client was entitled. In addition, the Respondent misappropriated further funds as disclosed in the application (see paragraphs 94 - 156). Between February 2013 and January 2014, the trust account was regularly overdrawn.

Ground 5 - Failure to comply with clause 72 of the Legal Profession Regulation 2005

The reconciliation for each of the months ending 31 August 2013, 30 September 2013 and 31 December 2013 states that the trust bank reconciliation report did not reconcile with the trust trial balance. By reason of the matters pleaded, the Respondent breached cl 72(2) of the LP Regulations.

Ground 6 - Breach of section 264 of the Legal Profession Act 2004

The Respondent acted for a Mr Cochrane and received $750.00 which was deposited into the trust account. The law practice failed to keep a client trust ledger. The Respondent breached s 264 of the LP Act. The law practice acted for the estate of a Ms Peacock and for a Ms Thew as set out in the Application and similarly breached s 264 of the LP Act.

Ground 7 - Failure to comply with clause 61 of the Legal Profession Regulation 2005

Ground 7 concerns a failure to issue a trust account receipt in respect of a deposit of $750.00.

Ground 8 - Failure to comply with clause 68 of the Legal Profession Regulation 2005

There is no record in the law practices' trust account receipts cash book of the receipt of the amount of $750.00 from Mr Cochrane and by reason thereof, the Respondent has breached cl 68 of the LP Regulations.

Ground 9 - Failure to comply with clause 8 of the Legal Profession Regulation 2005

The law practice acted for the estate of a Ms Peacock. The amount of $4,540.90 was paid to the law practice's trust account and deposited to the law practice's office account. The Respondent breached cl 88 of the LP Regulations.

Ground 10 - Misappropriation

The law practice acted on a deceased estate and received into the law practice's trust account the sum of $429,694.15 on behalf of the Estate. The Respondent was instructed to invest the funds in trust in an interest bearing account. In February 2013, the Respondent caused the sum of $139,587.58 to be withdrawn from the trust account and that amount was used toward the purchase of a property by EDI Group Pty Ltd. At the time, the Respondent was a director, secretary and shareholder of EDI Group Pty Ltd. On 26 February 2013, the amount of $353,106.57 was withdrawn from the law practice's trust account and was deposited into a savings account with the Bank of Queensland. Withdrawals were made from that account in favour of the Respondent and entities associated with the Respondent (namely, EDI Group Pty Ltd, EDI Kellyville Pty Ltd and VN Property Solutions Pty Ltd). By reason of these matters, the Respondent misappropriated trust monies, namely the amount of $139,587.58 and other amounts set out in paragraph 235 of the application.

Reply to application for disciplinary findings

The Respondent has filed a reply to the application for disciplinary findings. In Summary, the reply states: 1. Ground 1 - the Respondent admits breaches of s 255 of the LP Act and states that she relied heavily on her then husband who was charged with preparing the contracts for a sale. The Respondent stated that there was "nothing devious in her conduct and the use by EDI Kellyville Pty Ltd of the deposit money was made in an open and unconcealed way. The Respondent had no dishonest motives in anything that she did. She was relying upon the assistance of her then husband and other staff members, including her book keeper Ms Kathy Roebers"; 2. Ground 2 - the Respondent admits that she misappropriated the trust monies but was under the "genuine impression that the purchasers of the lots in question were agreeable to the deposits being used for the purposes of the property development". The Respondent states that she had "given instructions to her ex-husband, also a solicitor, to prepare the contracts to include provision for the use of the deposits and thought that that had been done". The Respondent denies that she had any dishonest intentions with regard to the irregular dealings. All monies lodged by the purchasers were repaid and nobody lost any money"; 3. Ground 3 - the same reply is given as for Ground 1; 4. Ground 4 - the same reply is given as for Ground 2. 5. The Respondent admits breaches as alleged with respect to each of Grounds 5, 6, 7, 8 and 9; 6. With respect to Ground 10, the Respondent admits that she misappropriated trust monies; and 7. In the Reply, the Respondent submitted that the "occurrences with which she is she is charged related to her problems at the time when she was unable to give her full attention to her legal practice. She was suffering the effects of a broken marriage, a terminally ill father (who passed away in August 2015), family disputes, a failed venture into a trucking business and problems with her partner in a property development venture".

Evidence

The Applicant tendered and relied upon the following affidavits: 1. Affidavit of Anne-Marie Foord sworn 18 December 2017 and Exhibit AMF - 1 (Exhibit A); 2. Affidavit of Hugh Charles Thomas sworn 14 December 2017 and Exhibits HCT - 1 to HCT - 7 (Exhibit B); and 3. Affidavit of Ronald Dunlop sworn 14 December 2017 and Exhibit RD - 1 (Exhibit C).
The Respondent made no objection to the above affidavits and did not require to cross-examine any of the deponents.
The Respondent tendered and relied upon the following affidavits: 1. The affidavit of J A Feeney (the Respondent) dated 8 June 2018 (Exhibit 1); 2. The letter of Philip N Argy dated 11 April 2016 (Exhibit 2); 3. The letter of Nick Katris dated 4 April 2018 (Exhibit 3); 4. The letter of Judith Swan dated 3 April 2018 (Exhibit 4); 5. The letter of Dalip Shahani dated 2 April 2018 (Exhibit 5); 6. The letter of Marie Simone dated 2 April 2018 (Exhibit 6); 7. The report of Dr B Westmore dated 22 April 2014 (Exhibit 7); and 8. The report of Dr Rosalie Wilcox dated 28 March 2018 (Exhibit 8).
The Applicant did not object to the tender of the above exhibits and cross-examined only the Respondent and Mr Argy.
Mr Argy's letter (Exhibit 2) stated that he was ready, willing and able to supervise Ms Feeney if the Tribunal sees fit to allow her to resume practise. In cross-examination, Mr Argy stated that he would supervise the Respondent but would not employ her. He envisaged being in contact with her by phone and email and visiting her approximately once per fortnight. He acknowledged that the Respondent should not have a trust account. He indicated a willingness to access the Respondent's office account and to review it.
In cross-examination, the Respondent acknowledged that in respect of the withdrawal of trust funds held by the Respondent for Mr Prasad that she had directed the money in the trust account to be withdrawn and placed into an account with the Bank of Queensland in her name. Further in cross-examination the Respondent said that she had delegated the operation of the trust account to Kathy Roebers who effected the relevant transactions. The Respondent stated that she had undertaken the Law Society's three day trust account course but as yet had not completed the written component of that course.

The Applicant's Submissions

It is necessary to record that the Applicant submitted (and we agree) that the application is made pursuant to the LP Act. Notwithstanding the repeal of that Act from 1 July 2015 by s 167 (a) of the Legal Profession Uniform Law Application Act 2014 (NSW), the transitional provisions contained in the Legal Profession Uniform Law Act means that the LP Act continues to apply to these proceedings. That conclusion was confirmed in Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 at [572] - [574].
The Applicant's submissions may be summarised as follows: 1. Ground 1 - the Respondent admits that the law practice failed to hold trust monies deposited in the trust account exclusively for the person on whose behalf it was received, breaching s 255(1)(a) of the LP Act and she also admits to failing to disburse trust money only in accordance with a direction given by the relevant person, thereby breaching s 255(1)(b) of the LP Act; 2. Ground 2 - the Respondent admits to misappropriating various sums of money (namely $238,240.00, $20,296.65 and $55,000.00). Although the Respondent may have repaid the sums misappropriated, even a temporary use by the Respondent of the deposits amounts to serious and deliberate dishonesty and is the sort of conduct which is antithetical to the trust and confidence which is required by a solicitor with custody of his or her clients' money; 3. Ground 3 - this concerns the sum of $4,863.96 received into the trust account on behalf of a client (Mr Flowers). The Respondent failed to disburse the money only in accordance with a direction given by the relevant person, thereby breaching s 255(1)(b) of the LP Act. The Respondent contended in her affidavit that it was her understanding that the costs agreement with the client provided the requisite authority for the appropriation of the relevant money. However, the Applicant contended that the Respondent's practice was only authorised to transfer money from the trust account for costs, disbursement and expenses upon the sending of a bill of costs; 4. Ground 4 - the Applicant contended that the evidence discloses significant and ongoing misappropriation occurring primarily in connection with corporate entities controlled or associated with the Respondent. By overdrawing the trust ledgers of the matters referred to in the application, the Respondent was appropriating money held on trust by the law practice for other clients; 5. Ground 5 - This concerns the breach by the Respondent of reg 72(2) of the LP Regulations in that the trust bank reconciliation report for the month to 30 September 2013 did not reconcile with the trust trial balance of the same date. Also, the Respondent breached cl 72(3) in that the finalised reconciliation for August 2013 was not prepared until 13 February 2014 and as the date of the appointment of the receiver to the law practice on 5 February 2014, the reconciliation for December 2013 had not be undertaken; 6. Ground 6 - the Applicant makes a number of contentions, namely that the law practice failed to keep a client trust ledger in relation to matter #2724, that the law practice sent a trust account statement in matter #2049 which contained differences from the trust account statement maintained on the file, thereby breaching s 264(2)(b) of the LP Act and in relation to matter #2373, the file maintained by the law practice did not disclose that a trust account statement was prepared or sent to the client or that a trust account ledger was maintained; 7. Ground 7 - concerns a failure by the Respondent to comply with reg 61 of the Regulations (which deals with the receipting of trust money). The Respondent has admitted the breach which concerns the sum of $750.00; 8. Ground 8 - concerns a failure to comply with cl 68 of the Regulations by failing to record receipt of $750 in the trust account's receipt cash book. The allegation concerns the receipt of the amount referred to in Ground 7; 9. Ground 9 - concerns the issue of an invoice for $4,540.00 to the executors of the Peacock estate. The allegation is that the monies which were withdrawn from the trust account occurred before the tax invoice was issued, and therefore there was a breach of cl 88(3)(a)(i) of the LP Regulations; and 10. Ground 10 - the Applicant contends that the Respondent used trust money totalling $138,587.00 withdrawn from the trust account for the purposes of purchasing a boarding house in the name of a company in which the Respondent had an interest. In addition, the Applicant contends that the Respondent misappropriated each of the amounts set out in #235 of the application.
The Applicant further submitted: 1. The matters referred to the Respondent in her Reply do not mitigate the seriousness of her conduct. The breaches of s 255 and the misappropriations were repeated, involved significant sums of money and were primarily connected with the use of trust money for the benefit of either the Respondent personally, or corporate entities controlled by, or associated with her; 2. The Respondent deliberately took money held for other clients in the law practice's trust account and applied it for the benefit of companies in which she was interested; 3. The fact that the Respondent repaid the funds does not absolve her misconduct; 4. The Respondent's contention is that the contracts for the sale of lots at Kellyville were intended to contain a provision by which deposits were to be released for "construction purposes" (par 31, Exhibit 1). Such a clause was not included, and in any event, money was taken from the trust account and was used for other purposes; 5. The Respondent's Reply refers to external stressors bearing upon the Respondent. They included her father's illness, breakdown of marriage and preoccupation with property developments. Evidence of external stressors ordinarily carries little weight in determining the appropriate disciplinary response to proven misconduct especially when it involves dishonesty; 6. The Respondent has failed to demonstrate any appreciation of the gravity of her misconduct and has laid blame on her former husband, the former book keeper of the practice and the project manager of the Kellyville Project; 7. The Respondent does not rely upon any diagnosis of a medical condition to explain the misconduct and there is no evidence that the Respondent was (or is) suffering from a medical condition which affected (or affects) her capacity to appreciate the wrongness of her behaviour; 8. Three character references are provided by referees who are not legally qualified. Only those who have the requisite knowledge of legal practice can properly make an assessment as to whether a person is fit to practice law. The character evidence of the three lay persons ought to be given little weight. The two character references from legal practitioners are from persons who have known the Respondent for a relatively short period (since approximately 2016); 9. An alternative order for suspension, cancellation or directing that a practising certificate not be granted for a specified period are not appropriate orders because at the end of the relevant period, the Respondent will be entitled to practice, but the Tribunal needs to be satisfied that at the end of that period, the Respondent will no longer be unfit to practice.

Respondent's Submissions

The Respondent's submissions may be summarised as follows: 1. Given that the Respondent has readily admitted the grounds set out in the application, what is really in dispute is whether the Tribunal's discretion can be exercised to avail the Respondent either for reconsideration to undergo a period of suspension, or, preferably, to work supervised in a capacity where she does not have access to a trust account; 2. The fact that the Respondent admitted the conduct in her Reply shows a very real insight into the offending conduct by virtue of the admission made by her and the appropriate candour; 3. The Respondent has fully cooperated with the Applicant and has readily made all admissions as were requisite or appropriate; 4. The affidavit of the Respondent (Exhibit 1) acknowledges the defalcations and contains evidence that the funds were repaid within eight weeks of their discovery; 5. The Respondent's practising certificate has been suspended since 9 January 2014 and therefore she has, in effect, sustained a period of suspension of approximately 4.75 years; 6. The fact that the trust money was repaid justifies an amelioration when considered in conjunction with other matters; 7. The Respondent believed that the contracts containing provision enabling the deposits to be transferred from the trust account. The decision in Law Society of NSW v Shehadie [2016] NSWCATOD 46 (which held that the diversion of a deposit into a practice account deprived the purchaser of the usual protections attaching to deposit monies pending completion and constituted professional misconduct) in distinguishable, in that here, the Respondent had a belief that the contracts permitted the transfer of the deposits. The Respondent does not admit to being dishonest; 8. The Respondent has recognised what she has done and has rehabilitated herself; 9. The Respondent's conduct cannot be excused but it is explicable by reference to the then external stressors. Currently, there are no external stressors. Dr Wilcox's recent report is relevant. Mr Argy's offer to supervise the Respondent and his assessment of her character is also relevant: see his letter (Exhibit 2); 10. The Respondent has been suspended for four years and should be shown some leniency. The protection of the public would be satisfied by a recommendation that she has a restricted certificate operating under supervised conditions; and 11. The Respondent does not object to an order for costs.

Decision

We are satisfied that each of the Grounds set out in the application have been proven. We are satisfied that the conduct of the Respondent constitutes professional misconduct both in the sense described in s 497 of the LP Act and in the sense propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. Specifically, in our view, the Respondent's conduct is conduct which justifies a finding that the Respondent is not a fit and proper person to engage in legal practice and, in addition, can be fairly described as conduct which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.
We find that the Respondent is not a fit and proper person to remain on the roll of legal practitioners and that the appropriate orders are those sought by the Applicant. Accordingly, we propose to order that the Respondent's name be removed from the roll. Our reasons are set out in the following paragraphs.
The conduct of the Respondent described in the application occurred over a considerable period and involved substantial sums of money. It involved the misappropriation of trust money and such conduct is antithetical to the trust and confidence which those intrusting money to a solicitor are entitled to expect. In Dupal v The Law Society Of New South Wales [1990] NSWCA 56, Kirby P said that where it is established that a solicitor has misused monies received on behalf of other persons then "Such a finding ordinarily requires removal from the roll".
In addition, a further factor pointing to the seriousness of the Respondent's conduct and her fitness to practise is that the use of the trust money was in part for her own benefit or for the benefit of companies in which she had an interest.
The underlying policy consideration necessitating the removal of a solicitor from the roll lies in the need in disciplinary proceedings of this kind to protect the public. That consideration not only involves the protection of the public against future misconduct by the particular practitioner, but also the need to protect the public from similar kinds of default from other practitioners. In Law Society v Walsh [1997] NSWCA 185 at [40] Beasley JA said: The court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors.
In finding that the Respondent in this case is unfit to practice, we also make it clear that it is our view, given the facts as found, that the Respondent is probably permanently unfit to practice. In Law Society of New South Wales v Mattila (No 2) [2018] NSWCATOD 91 at [16] the Tribunal said: In New South Wales Bar Association v Cummins [2001] NSWCA 284 at [24], Spigleman CJ confirmed the principle which had been adopted by McHugh JA in the unreported decision of Prothonotary of the Supreme Court of NSW v Ritchard (Unreported, Court of Appeal NSW, 31 July 1987), to the following effect: "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."
Although the Respondent readily admitted the conduct, the subject of the application, she did not concede any dishonesty. We are not satisfied that the Respondent was not aware that the use of the trust money was unlawful. The Respondent's explanation that she thought that the contracts permitted the release of the deposit is incomplete in that, she does not assert that the purchasers authorised the release of the deposits to be used for her benefit.
Some money was used for purposes other than the Kellyville Project. Ground 10 concerned misappropriation of money to assist the purchase of a property by a purchaser in which the Respondent had an interest. In our view, the Respondent's willingness to admit her conduct, and her conduct in paying the money back, are not sufficient at this stage to enable us to say that that conduct is "any more than a virtue borne of present necessity and the inevitability of close scrutiny" (to use the phraseology of Handley JA in Dupal).
Whilst we accept that the Respondent's personal circumstances were very stressful, the authorities make it clear that external stressors are not an excuse. In Re Legal Practitioners Act 1989 to 1936; Re Parbury (Supreme Court of New South Wales of Appeal, unreported, 1 May 1989) Kirby P said: Even under great personal stress, legal practitioners are expected at all times to act honestly and honourably. ... No amount of personal stress or sad misfortune can excuse such conduct on the part of a solicitor. Whilst, in human terms, sympathy is invoked to suggest that the appellant has suffered enough from the arrows of fortune, the purpose of this jurisdiction is not, as such, to burden him further with another of life's punishment but to protect the community from practitioners who have shown themselves unfit to enjoy the high privilege of legal practice.
The fact that the Respondent has fully returned all the money misappropriated does not, in our view, lesson the seriousness of her conduct. As the Applicant's submissions state, repayment does not absolve misconduct. As stated in Kumar v Legal Services Commissioner [2015] NSWCA 161 at [65] per Lemming JA, Basten JA and Sackville AJA agreeing: Lest there be any doubt about it, even a temporary use by Mr Kumar of his client's funds without prior approval amounts to serious and deliberate dishonesty. That is precisely the sort of conduct which is antithetical to the trust and confidence which is required by a solicitor with custody of his or her clients' money.
We are not satisfied that the Respondent has shown the level of insight and contrition necessary to persuade us that an order other than removal from the roll would be appropriate. In her Reply, the Respondent stated she relied upon her husband and her book keeper. She does not appear to acknowledge that she retained, notwithstanding that reliance, an obligation to maintain trust money, and the trust account, strictly in accordance with legal and fiduciary obligations. In any event, the misappropriation described in Ground 10 was not said to have been caused by the actions of the husband or the bookkeeper.
We have considered the medical reports of Dr Westmore and Dr Wilcox. Dr Westmore's report is dated in April 2014 and describes the stressors that had been impacting on the Respondent. Dr Wilcox's report is dated in March 2018 and describes the Respondent's mood as "stable" and "taking better care of herself". We are not persuaded that Dr Wilcox's report provides us with sufficient confidence to conclude that the Respondent has rehabilitated herself such that were external stressors to reappear, she would not yield to the temptation of using client money.
We have also considered the references tendered by the Respondent. They too are not sufficient for us to consider that an appropriate order might be a further period of suspension or an order permitting the Respondent to practise under supervision. Whilst Mr Argy's offer to supervise the Respondent reflects admirably on his professionalism, we do not think the public interest would be adequately protected. Notwithstanding Mr Argy's considerable experience as a solicitor, there are, in our view, practical limitations on the nature and extent of the proposed supervision, which means that the level of protection for clients dealing with the Respondent would be inadequate.
A reference was also provided by another legal practitioner, Ms J Swan. We do not think her relationship with the Respondent is of sufficient length or breadth (in the sense of her having a variety of professional dealings with the Respondent) to persuade us not to make the order sought by the Applicant.
Similarly, the reference of the lay referees taken as a whole, are not sufficiently persuasive. In Re Melvey; ex parte Law Society of New South Wales (1966) 85 WN (Pt1) NSW 289 at 298, the Court said: It is one thing to speak well of a man whom a deponent has met in social or business circles, it is another to speak of him as to his professional dealings with trust funds.
In our view, the lay opinions concerning the character of the Respondent do not display sufficient knowledge of the charges or of the obligations imposed upon the Respondent with respect to trust accounts to cause us to doubt the appropriateness of the proposed strike off order.
Accordingly, we will make the order sought by the Applicant. Costs are sought and are not opposed. In any event, they must follow in the absence of exceptional circumstances: see cl 23 of Sch 5 of the Civil and Administrative Tribunal Act 2013.

Orders

The Tribunal having found that the Respondent has engaged in professional misconduct orders that: 1. The name of Judy Anne Feeney be removed from the roll; and 2. Judy Anne Feeney pay the costs of the Applicant as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 19 October 2018

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