Legal Services Commission v Anderson

Reasons for decision

1. The Legal Services Commissioner (LSC) seeks a finding of professional misconduct against Denis Manning Anderson (the solicitor) and consequential orders.
2. The proceedings follow a complaint by Mr Mark Anderson (no relation to the solicitor), Manager of the Melbourne Cricket Club, that the solicitor in effect, by deception, assumed the identity of a deceased member of the club and thereby took benefits of membership to which he was not entitled.
3. The facts which are not significantly in dispute may be shortly stated.
4. At relevant times the solicitor practised on his own account at Kogarah NSW. His client, Michael Alfred Starkey, was a member of the Melbourne Cricket Club. The rules of the club include "[m]embership cards are not transferrable and may not be used other than by the Member to whom they are issued" (rule 5.1 (d)), "[t]he rights of each Member are personal to that Member and are unable to be transferred to another person" (rule 5.4) and "[a] Member will be deemed to resign from the Club if the Member dies (rule 9.1(c)).
5. On or about 12 September 1997 (not 28 June 2004 as stated in the solicitor's "Answer" filed in these proceedings) Mr Starkey died. There is no evidence as to what transpired in the period between Mr Starkey's death and June 2004 except the partly self-serving statements made in the solicitor's letter to the LSC dated 14 November 2013: The late Mr Michael Alfred Starkey, and his wife Mrs. Denise Starkey, were friends of mine for over thirty (30) years, and also clients of my legal practice. I confirm that I acted as the solicitor for the Estate of Mr. Starkey. I remained in contact with Mrs. Starkey following the death of her husband in 1997 who was then aged 58 years and not eligible to have a Seniors Card. In early 2000s Mrs Starkey approached me to advise that her late husband had expressed a wish to her that upon his passing he wanted me to have the benefit of his membership to the MCC. Mrs Starkey informed me that she had paid the annual fees to the MCC since her husband's death and could not afford to do so in the future. As she was not interested in travelling to Melbourne she told me I could have her late husband's "ticket" provided that I paid the annual fees. I was not aware that the rules of the MCC provided that upon death of a member, the membership rights ceased. I had understood that the deceased was able to assign/gift his ticket. However, in late May 2004 I received a communication dated 24th May 2004 from the MCC ("the communication") advising of a procedure concerning membership cards. Relevantly, the new changes involved the provision of a photograph to be endorsed on the card, so as to confirm the identity of the ticketholder. At the time of receipt of the communication I spoke with Mr. Andrew McNeil who was a qualified electrician and had become a friend of mine. … I showed Mr. McNeil the communication. It was initially my intention not to respond to the it [sic] and to allow the membership to lapse. Mr McNeil suggested to me that he could take my photograph with his camera as I did not have one and he would certify it to enable me to retain the membership. Mr McNeil, subsequently took my photograph and provided the certification. Mr McNeil asked me for my Senior's Card and inserted Mr Starkey's name in place of mine. Also he obtained a copy of Mr Starkey's birth certificate which was in the file in my office archives.