At the time of the original hearing, the Tribunal recognised that the repeated personal usage by unauthorised borrowings from trust funds by a practitioner would not only be regarded as serious impropriety but usually warrant a referral to the Supreme Court (full bench). However, the Tribunal did not perceive the Committee as putting the complaint on that footing. There was no apparent emphasis of any form of dishonesty or any illegality when the reference was first heard by the Tribunal. The actions were conducted openly and interest on the borrowings was paid.
It was in those circumstances that the Tribunal concluded that the appropriate disposition of the complaint fell just short of a referral to the Supreme Court (full bench). Regrettably, with the benefit of further argument, we are persuaded that we would not be discharging our duty to the public to not refer the matter to the Supreme Court (full bench). In doing so, the Tribunal does wish to record the unfortunate history of the resolution of this complaint from the practitioner's perspective. This relates to both timing (in terms of the unavoidable delay in being able to conclude the matter while there was a hiatus in the legislation) and also in the need for the Tribunal to reconsider the appropriate order to be made.
In all those circumstances, including the apparent absence of precedent in this State of a 'borrowing' type of contravention, the Tribunal would not make a recommendation to the Supreme Court (full bench) that the practitioner be struck off the roll. The Tribunal notes that senior counsel for the Committee did not, in written or oral submissions, request that the referral should include a recommendation that the practitioner be struck off the Roll of Practitioners. Rather, the relief sought was that the matter be referred to the Supreme Court (full bench). Implicitly, a report to the Supreme Court (full bench) is appropriate in those circumstances in which the Tribunal does not consider that the penalties it may impose pursuant to s 187 of the 2003 Act are necessarily adequate or appropriate to deal with the professional misconduct under consideration.
The Tribunal considers that the nature of the contravention warrants a report being transmitted which it will do so by forwarding these reasons. The Tribunal notes that there has been no allegation of illegality or dishonesty in the complaint (although the Committee now raises a notion of 'objective dishonesty') and that no client has suffered a loss of money as a result of the misconduct. In addition, and largely as a result of the focus of the presentation of the complaint and supporting submissions by the Committee a year after the matter had been originally dealt with on the major issue of referring the matter to the Supreme Court (full bench), the Tribunal has concluded that it should, regrettably, re-visit its earlier conclusion on that point and should so refer the matter [71] - [74].