1. The respondent's local practising certificate is cancelled, effective from 12 November 2012.
2. The respondent is disqualified from being granted a local practising certificate for a period of one year from the effective date of cancellation.
3. A future grant of a local practising certificate to the respondent will be subject to:
   • (a) The respondent undertaking, at his own expense, a further education course for legal practitioners in the conduct of trust accounts as approved by the applicant in the six months before the respondent applies to the Legal Services Board for a local practising certificate; and
   • (b) The respondent providing to the applicant and to the Legal Services Board evidence of his completion of the proposed course to the satisfaction of the applicant and the Legal Services Board.
4. By consent
   • (a) The respondent is to pay the applicant his costs fixed by the Tribunal in the amount of $35,000 by way of successive quarterly payments of $8,750 by the fourth of the relevant month commencing on 4 January 2013.
   • (b) In the event that payment of any instalment is not made by the due date then the whole amount minus any payment received shall become due and payable forthwith.

1. This proceeding is constituted by three applications by the Legal Services Commissioner ('the Commissioner') seeking orders against Robert Vincent Booth ('Mr Booth'). The applications were allocated Tribunal file numbers J26/2011, J27/2011 and J52/2011. In all, 15 charges were brought. All have been dealt with together. The allegations and charges are set out below.
2. On 4 October 2011, Mr Booth appeared on his own behalf, admitted the facts as alleged in J26/2011 and J52/2011, pleaded guilty as charged and was found guilty. Later in the hearing, he admitted the facts as alleged in J27/2011, pleaded guilty as charged and was found guilty. The hearing was adjourned to enable Mr Booth to prepare for a disposition hearing.
3. Later Mr Booth sought to resile from admissions and applied to change his plea. This was later amended to apply to matters J27 and J52 of 2011. the application was heard on 9 July 2012 and by order made on 15 August 2012 the application as refused. Reasons are appended to the order made on 15 August 2012.
4. The disposition hearing took place on 4 October 2012, Mr Booth was represented by Counsel.
5. I now set out the facts as alleged and the charges.

1. Mr Wiebes died on 16 August 2007. Under Mr Wiebes' Will made 20 June 2007, Ms Egerton was the sole executrix and sole beneficiary of his Estate ("the Estate").
2. By letter dated 15 October 2007 the Respondent wrote to Ms Egerton providing details of a cost agreement and confirming that he would act for her.
3. The Respondent obtained a grant of probate in respect of Mr Wiebes' Estate on 5 November 2007.
4. One of the assets of the Estate was a property situated at 11 Blacks Camp Road, Sommerville, Victoria ("the property"). The registered joint proprietors of the property were Mr Wiebes and Alyson May Wiebes, husband and wife.
5. Mrs Wiebes had predeceased Mr Wiebes and had died intestate. The Respondent did not have instructions to act in respect of Mrs Wiebes' Estate.
6. On or about 28 November 2007 the Respondent lodged an application, dated 16 November 2007, with the Titles Office to transfer the property to Ms Egerton.
7. By letter dated 13 December 2007 the Registrar of Titles wrote to the Respondent enclosing a "Dealing Refusal Advice" requesting amendments to the application of, amongst other things, to include the date of death of Mrs Wiebes.
8. The Respondent undertook no remedial action to progress the transfer of the property to Ms Egerton after receiving the Dealing Refusal Advice and did not undertake the necessary action to obtain the information required by the Registrar of Titles.
9. On or about 5 January 2009 Ms Egerton attended the firm and requested further action to finalise the Estate, including her proposal to sell the property.
10. On 6 March 2009 Ms Egerton telephoned the firm because the property had not been transferred to her and left several messages for the Respondent to respond. She also stated that she would pick up the relevant files for the Estate.
11. On 6 March 2009 Lardners Solicitors, new solicitors acting for Ms Egerton, wrote to the firm requesting details as to the status of the administration of the Estate.
12. On 17 March 2009 Lardners Solicitors wrote to the firm requesting a response to its previous correspondence dated 6 March 2009.
13. The Respondent finally transferred the file for the Estate to Lardners solicitors on 12 June 2009, under cover of letter dated 5 June 2009.

Professional misconduct within the meaning of section 4.4.3 and/or section 4.4.4(a) of the Act in that contrary to rule 1.2 of the Professional Conduct and Practice Rules 2005, between on or about 13 December 2007 and on or about 6 March 2009 you failed to use your best endeavours to finalise the administration of the Estate of Adrian John Mary Wiebes as soon as reasonably possible.

1. Relevantly, from 1 July 2006 to 30 June 2008 the Respondent held a local practising certificate pursuant to the definition in s 1.2.1 of the Act.
2. On 30 June 2008 the Respondent lodged an application for renewal of his 2008/2009 practising certificate (2008/2009 Application) pursuant to Part 2.4 of the Act with the LIV.
3. The note attached to the Respondent's 2008/2009 Application, inter alia, made disclosures pursuant to items 12 and 13 being:
   1. a fine by the Melbourne Magistrates' Court on 17 October 2006 for failing to lodge taxation returns; and
   2. a suspended sentence of six months on 15 November 2007 for failing to comply with orders to file tax returns.
4. At no time prior to 30 June 2008 did the Respondent notify the LIV or the Board of the tax offences committed by him or provide a written statement explaining why despite the show cause event, as defined in s 1.2.1 of the Act, he was a fit and proper person to hold a local practising certificate as required pursuant to section 2.4.27(2) of the Act.
5. By operation of s 2.4.5(3) of the Act, the Respondent's 2007/2008 practising certificate remained in force from 1 July 2008 until the application for renewal referred to in paragraph 15 above as finally determined.
6. On or about 11 November 2008 a letter was sent to the Respondent from the LIV at his address for serve as recorded on the register held by the Board and as contained in his 2008/2009 Application.
7. Further to paragraphs 15 and 18 above, on or about 11 November 2008 the LIV inter alia acknowledged receipt of the Respondent's 2008/2009 Application and pursuant to s 2.4.40 of the Act requested further information including a copy of the court orders made.
8. Pursuant to s 7.2.1 of the Act, a notice or other document may be served on:
   1. a local legal practitioner, by sending it by post to the practitioner or lawyer at his address for service appearing on the register;
   2. a law practice by sending it by post to the practice at its usual or last known business address.
9. In the circumstances referred to in paragraphs 6 to 8 above and pursuant to the operation of s 7.2.4 of the Act, the Respondent was deemed to have received the letter dated 11 November 2008 two business days after the day on which the letter was posted, being on or about 13 November 2008.
10. On about 17 December 2008 the LIV sent a further letter to the Respondent by post and email, inter alia requesting a response to its letter dated 11 November 2008 and stating that his application for renewal of his practising certificate cannot be determined until the further information is received.
11. In the circumstances referred to in paragraphs 21 and 23 above and pursuant to the operation of section 7.2.4 of the Act, the Respondent was deemed to have received the letter dated 17 December 2008 two business days after the day on which the letter was posted, being on or about 19 December 2008.
12. The Respondent did not reply to the written request for information referred to in paragraphs 18 and 23.
13. On or about 6 March 2009 the LIV, as delegate of the Board pursuant to section 2.4.7(2)(b) and section 2.4.4 of the Act, determined to refuse the Respondent's 2008/2009 Application and on the same day an Information Notice was sent to the Respondent at his registered address for service, inter alia informing the Respondent that his practising certificate for the year commencing 1 July 2008 to 30 June 2009 was refused.
14. In the circumstances referred to in paragraphs 24 and (16?) above and pursuant to the operation of section 7.2.4 of the Act, the Respondent was deemed to have received the Information Notice dated 6 March 2009 two business days after the day on which the letter was posted, being on or about 10 March 2009.
15. In late April 2009 Mario Appiah, an investigator appointed by the LIV, visited the Respondent and advised him that his 2008/2009 Application had been refused and that he did not currently have a practising certificate.
16. On about 30 April 2009 the Respondent lodged an application for renewal of his 2009/2010 practising certificate (2009/2010 Renewal) pursuant to Part 2.4 of the Act with the LIV.
17. Notwithstanding the decision to refuse the Respondent's practising certificate on about 6 March 2009 referred to in paragraph 26 above, the Respondent continued to practice law and provide legal services thereafter according to the particulars.

1. On or about 14 April 2009 money was received from Booths from Satchwells real estate agent in the amount of $111,000.00 into the trust account ledge 90035 on behalf of Mr WNW Jack, being the payment of deposit moneys in respect of the sale of property lot 2, 125 Hendersons Road, Bittern.
2. On or about 24 April 2009 a transfer by Booths in the amount of $111,000 on behalf of Mr WNW Jack in respect of the sale of lot 2, 125 Hendersons Road, Bittern from matter number 90035 to matter number 90039 and on the same day via trust cheque number 2432, $1,890 was disbursed to Devers, barristers' clerk, for counsel's fees and via trust cheque number 2433, $2,860 to Booths for legal fees.

1. On or about 18 May 2009 L Cooper real estate agent sent a letter to Booths being an account sales regarding the sale of property 5 Brandary Place, Hastings and the deposit received less disbursements and enclosing a cheque.

1. On or about 22 May 2009 money was received from L Cooper real estate agent in the amount of $23,400.00 into the trust account ledger 90051 on behalf of Ms TE Lewis, being the balance of deposit moneys in respect of the sale of property 5 Brandary Place, Hastings and on the same day via trust cheque number 2478 $10,094.02 was disbursed to the Commonwealth Bank.
2. Further on or about 22 May 2009 the Respondent forwarded a letter to his client Ms T. Lewis on Booths letterhead advising inter alia of final settlement in respect of the sale of 5 Brandary Place, Hastings and enclosing a statement of adjustments and a memorandum of his costs and disbursements.
3. On or about 25 May 2009 via cheque number 2482, $10,367.67 of money was disbursed to the client from trust account ledger 90051 held on behalf of Ms TE Lewis and on the same day via trust cheque number 2483, $851.29 was disbursed to Booths for legal fees

1. On or about 14 May 2009 the Board sent the Respondent a letter at his address for service as recorded on the register maintained by the Board and contained in his 2009/2010 Renewal, inter alia acknowledging receipt of his 2009/2010 practising certificate application for renewal referred to in paragraph 16 above, and requesting Notification of a New Law Practice, given Booths was recorded in the Board's register as having ceased practice.
2. On 25 May 2009 Helen Hartsias from the LIV sent the Respondent a further letter by email inter alia stating that the Respondent's 2009/2010 Renewal could not be processed until he lodged the Notification of a New Law Practice referred to in the prior letter from the Board dated 14 May 2009. The letter also referred to the Information Notice dated 6 March 2009 advising that his previous renewal application was refused.
3. On about 27 May 2009, an investigator appointed by the LIV, visited the Respondent and advised him that his 2008/2009 Application had been refused.
4. On 27 May 2009 the Respondent lodged an Application for grant of a 2009/2010 practising certificate (2009/2010 Application) under protest.
5. On or about 3 June 2009 the Board sent the Respondent a letter at his address for service as recorded on the register maintained by the Board and contained in his 2009/2010 Application, inter alia acknowledging receipt of his 2009/2010 application for grant of a practising certificate referred to in paragraph 33 above, and requesting Notification of a New Law Practice, given his law firm Booths was recorded in the Board's register as having ceased practice.
6. On or about 29 July 2009 Ms Hartsias sent the Respondent an email, inter alia requesting that he provide further information in respect of his 2009/2010 Application, including a copy of the court orders previously requested in November 2009 referred to in paragraph 20 above and confirmation as to whether he had complied with the orders.
7. On or about 30 July 2009 the Respondent sent a facsimile to Ms Hartsias providing the Court orders as requested.
8. On or about 31 July 2009, Ms Hartsias sent the Respondent an email inter alia repeating her other request for information on 29 July 2009, being whether he had complied with the court orders.
9. On or about 2 October 2009 the Respondent responded to Ms Hartsias' request in her email dated 31 July 2009 and inter alia confirmed compliance with the court orders.
10. On or about 16 October 2009 the Board granted the Respondent a local practising certificate as a principal of a law practice and authorised to receive trust money effective from 27 May 2009 to 30 June 2009.
11. Since 27 May 2009 the Respondent has continued practice as a local legal practitioner within the meaning of section 1.2.3(b) of the Act.
12. In the circumstances referred to in paragraphs 14 to 41 above, between 10 March 2009 and 26 May 2009 the Respondent engaged in legal practice in Victoria while he was not an Australian Legal Practitioner as defined in s 1.2.3(a) of the Act.

Professional misconduct within the meaning of section 4.4.4(a) and/or section 4.4.3(1) of the Act by reason of the Respondent engaging in legal practice when he was not an Australian legal practitioner, in contravention of section 2.2.2(1) of the Act in the period between 10 March 2009 and 26 May 2009.

Professional misconduct within the meaning of section 4.4.4(a) and/or section 4.4.3(1) of the Act by reason of the Respondent representing that he was entitled to engage in legal practice when he was not an Australian legal practitioner, in contravention of section 2.2.3(1) of the Act in the period between 10 March 2009 and 26 May 2009.

1. Since at least 2004 the Respondent was the solicitor and legal practitioner responsible for trust account ledger No 30288 for the Estate of Jean Emily (JE) Campbell, deceased.
2. On or about 20 September 2004 the Respondent deposited $35,000 of trust money held on behalf of the Estate of JE Campbell with the National Australia Bank (NAB) in a monthly term deposit accruing interest in the name of Booths Lawyers.
3. On or about 16 June 2005 the Respondent redeemed $25,705.27 of trust money held on behalf of the Estate of JE Campbell, being at that time the balance of the account invested in the NAB monthly term deposit accruing interest.
4. At no time during the period 20 September 2004 to 17 June 2005 did the Respondent create a Register of Investment and Securities in relation to the investment of $35,000 of trust money on behalf of the Estate of JE Campbell.
5. On or about 22 June 2005, without receiving any written direction from the client to do so, the Respondent deposited the $25,705.27 of trust money held on behalf of the Estate of JE Campbell into the trust account for another client, being the Estate of Elsie Mary (EM) McDonald, deceased.
6. The trust account ledger for the Estate of EM McDonald, being trust account No 40204 records inter alia the following information:

1. By paying or transferring moneys from his trust account as set out in paragraphs 3 to 6 above, for another purpose and without the consent or direction of the persons for whom the Respondent held that money on trust the Respondent created a deficiency in his trust account for which he had no reasonable excuse.
2. The Respondent did not notify his auditor of the deficiency in his trust account for the Estate of JE Campbell.
3. On 23 January 2006 the Respondent deposited the sum of $20,000 from ledger account No 50224 being Manager National Bank Common Fund to reduce the deficiency referred to in paragraph 52 above.
4. On 31 October 2006 the Respondent deposited $875.49 from ledger account No 50224 being Manager National Bank Common Fund to reduce the deficiency referred to in paragraph 52 above.
5. On 19 April 2007 during the investigation by Mr Appiah the Respondent created a Register of Investment and Securities for the Estate of JE Campbell in relation to the investment on 20 September 2004 of $35,000 and subsequent interest received and redemption of trust money.
6. The Register of Investment and Securities for the Estate of JE Campbell now records inter alia the following:

1. On 27 June 2007 the Respondent deposited $5,000.00 being part of an office cheque in the amount of $10,803.42 to reduce the deficiency referred to in paragraph 52 above.
2. The trust ledger for the Estate of JE Campbell records inter alia the following information:

Part withdrawal of funds from investment account held by Booths with National Australia Bank

1. There was no information contained in the Respondent's trust ledger or in documentation made available to Mr Appiah to explain why trust moneys invested on behalf of the Estate of JE Campbell were withdrawn from the NAB monthly term deposit interest bearing account or provide a trail to explain why moneys were transferred from the National Bank Common Fund Account no 50224 and not the Estate of EM McDonald per paragraphs 47 and 48 above or by way of an office cheque per paragraph 55 above.
2. There was no information contained in the Respondent's Register of Investment and Securities until it was created on 19 April 2007 per paragraphs 53 and 54 above, nor in the Respondent's trust ledger nor made available to Mr Appiah at the Respondent's office on his inspection to explain the purpose of the subsequent payment and transfers of trust money, including directions in writing from the Estate of JE Campbell.
3. In these circumstances the transactions listed in paragraphs 44 to 48 and 56 could not be explained to Mr Appiah from the records recorded in either the Register of Investment and Securities or the trust ledger.
4. In these circumstances the trust ledger could not be conveniently and properly audited by Mr Appiah.

1. Since about September 2004 the Respondent was the solicitor and legal practitioner responsible for administering trust account No 40204 for the Estate of EM McDonald, deceased.
2. The Respondent is also a nephew of the deceased EM McDonald and appointed an executor of the Estate of EM McDonald pursuant to her Will dated 19 December 2001.
3. On or about 21 April 2005 the Respondent deposited $45,000 of trust money held on behalf of the Estate of EM McDonald with the NAB in a monthly term deposit accruing interest in the name of Booths Lawyers.
4. On or about 25 October 2005 the Respondent redeemed $45,725.24 of trust money held on behalf of the Estate of EM McDonald, being at that time the balance of the account invested in the NAB monthly term deposit accruing interest.
5. At no time during the period 21 April 2005 to 25 October 2005 did the Respondent create a Register of Investment and Securities in relation to the investment of $45,000 of trust money on behalf of the Estate of EM McDonald.
6. On or about 3 November 2005, without receiving any written direction from the client to do so, the Respondent deposited the $45,719.24 of trust money held on behalf of the Estate of EM McDonald into the trust account for another client, being the Estate of WG Peters, deceased.
7. The trust account ledger for the Estate of WG Peters, being trust account No 20196 records inter alia the following information:

1. By paying or transferring moneys from his trust account as set out in paragraphs 64 to 67 above, for another purpose and without the consent or direction in writing of the persons for whom he held that money on trust the Respondent created a deficiency in his trust account for which he had no reasonable excuse.
2. The Respondent did not notify his auditor of the deficiency in his trust account for the Estate of EM McDonald.
3. On 7 December 2005 the Respondent transferred $30,013.97 from ledger account No 50224 being NAB Common Fund to reduce the deficiency referred to in paragraph 24 above.
4. During the investigation by Mr Appiah in 2007 the Respondent created a Register of Investment and Securities for the Estate of EM McDonald in relation to the investment on about 21 April 2005 of $45,000 and subsequent interest received and redemption of trust money.
5. The Register of Investment and Securities for the Estate of EM McDonald now records inter alia the following:

1. On 23 January 2006 as referred to in paragraph 56 above the Respondent deposited the sum of $20,000 from ledger account No 50224 being Manager National Bank Common Fund to the Estate of JE Campbell on behalf of the Estate of EM McDonald.
2. The trust ledger for the Estate of EM McDonald records inter alia the following information:

Booths Law Practice Trust Account payment of funds as requested by LIV being for overpayment of invested funds

1. There was no information contained in the Respondent's trust ledger or in documentation made available to Mr Appiah to explain: why $45,000 of trust moneys invested on behalf of the Estate of EM McDonald were withdrawn from the NAB monthly term deposit interest bearing account; or the receipt of $25,705.27 as repayment of a term deposit on 23 June 2005; or provide a trail to explain why moneys were transferred from the National Bank Common Fund Account no 50224.
2. There was no information contained in the Respondent's Register of Investment and Securities until it was created during 2007 per paragraphs 29 and 30 above, nor in the Respondent's trust ledger nor made available to Mr Appiah at the Respondent's office on his inspection to explain the purpose of the subsequent payment and transfers of trust money, including written directions from the Estate of EM McDonald.
3. In these circumstances the transactions listed in paragraphs 21 to 25 and 32 could not be explained to Mr Appiah from the records recorded in either the Register of Investment and Securities or the trust ledger.
4. In these circumstances the trust ledger could not be conveniently and properly audited by Mr Appiah.

1. Since about 30 December 2002 the Respondent was the solicitor and legal practitioner responsible for administering trust account No 50224, the Manager National Bank Common Fund.
2. Since about 30 December 2002 until it was closed during this investigation, the Respondent opened and maintained an interest bearing account with the NAB entitled "Robert Vincent Booth trading as Booths Lawyers Common Fund trading" with BSB 083-088, account number 55-204-3762.
3. The trust ledger for the Manager National Bank Common Fund records inter alia the following information:

40204 Miss EM McDonald (deceased)/Pro Transfer to estate of mcdonald/funds due

20196 Mr WG Peters (deceased) probate transfer of funds due to you

1. Since at least 2003 the Respondent was the solicitor and legal practitioner responsible for administering trust account No 20196 for the Estate of WG Peters, deceased.
2. The trust ledger for the Estate of WG Peters records inter alia the following information:

1. On about 20 June 2009 the Respondent provided a written authority dated 14 August 2003 by Eric Macklin on behalf of the Estate of WG Peters, authorising him to transfer to the NAB Common Fund $45,000 or such other amount being the entitlement of Peter Trevanna. The Respondent has produced no written authority for the Estate of JE Campbell or the Estate of EM McDonald.
2. In these circumstances, as referred to in paragraphs 5, 9, 10, 14, 24, 28, 32, 37 to 39 and 42 above, it appears that between at least November 2005 and October 2006 the Respondent mixed trust money for his clients Mr W Campbell/Estate of JE Campbell and the Estate of EM McDonald in the one interest bearing account, being the NAB "Robert Vincent Booth trading as Booths Lawyers Common Fund trading", BSB 083-088 and account number 55-204-3762 without any written authority.
3. The trust ledgers for the following accounts record the Respondent as the Solicitor, "Responsible Partner" and "Client Manager":

1. The various trust ledgers set out in paragraph 44 above record transactions between the period 2004 to 2007.
2. In or about February 2007 Mr Appiah began a routine investigation of the trust account and trust records of the Respondent's practice for the purposes of Part 3.3 Division 3 of the 2004 Act. Mr Appiah followed up his concerns and his investigation during March, April and June 2007.
3. For the purposes of the investigation on 11 July 2007 the trust account inspector Mario Appiah wrote to the Respondent setting out the details of his investigations into the Respondent's practice as a legal practitioner and he was asked to provide all relevant documents to support the transactions recorded in his trust and related records by 20 July 2007.
4. Further letters were sent to the Respondent on 31 July 2007 and 5 September 2007 requesting a response to the letter dated 11 July 2007.
5. By 8 October 2007 the Respondent had not responded at all to the letters or produced the information reasonably sought by Mr Appiah.
6. The documents and information requested by Mr Appiah to support the transactions recorded in the Respondent's trust and related records have not been fully produced by the Respondent.

The conduct referred to in paragraphs 1 to 6 constitutes professional misconduct within the meaning of section 4.4.3(1) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice, on or about 22 June 2005 as a legal practitioner the Respondent contravened section 174(3) of the Legal Practice Act 1996 by withdrawing trust money held in an interest bearing account for the Estate of JE Campbell in the sum of $25,705.27 and applying such money for another purpose without the consent or written direction of the persons for whom the Respondent held that money on trust.

The conduct referred to in paragraphs 1 to 8 constitutes professional misconduct within the meaning of section 4.4.3(1) and/or section 4.4.4(a) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice:

(i) between 22 June 2005 and 11 December 2005, having a deficiency in his trust account, the Respondent contravened Rule 32 of the Trust Account Practice Rules by failing to forthwith notify his auditor of the existence of a deficiency in his trust account; and

(ii) between 12 December 2005 and 16 October 2007, having an irregularity in his trust account records, the Respondent contravened section 3.3.22(1) of the Legal Profession Act 2004 by failing to notify the Legal Services Board of an irregularity in his trust account as soon as practicable after becoming aware of the irregularity.

Charge 3 - Failure to keep a Register of Investments and Securities

The conduct referred to in paragraphs 1 to 4 and 9 to 12 constitutes professional misconduct within the meaning of section 4.4.3(1) and/or section 4.4.4(a) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice:

(i) between 20 September 2004 and 11 December 2005, having invested trust moneys, the Respondent contravened Rule 22 of the Trust Account Practice Rules by failing to keep a Register of Investment and Securities recording the investment over which he had or could exercise exclusive control in trust for another person; and

(ii) between 12 December 2005 and on or about 19 April 2007, having invested trust moneys for or on behalf of a client, the Respondent contravened regulation 3.3.30 of the Legal Profession Regulations 2005 by failing to maintain a Register of Investment recording the information required by regulation 3.3.30(3).

The conduct referred to in paragraphs 1 to 10 and 13 constitutes professional misconduct within the meaning of sections 4.4.3 of the Legal Profession Act 2004 in that, in the course of engaging in legal practice between 22 June 2005 and 11 December 2005, the Respondent contravened section 188(1) of the Legal Practice Act 1996 by engaging in a course of conduct which resulted in him having a deficiency in his trust account without reasonable excuse.

Charge 5 - Failure to keep trust account records in a manner that enabled them to be conveniently and properly audited

The conduct referred to in paragraphs 1 to 18 constitutes professional misconduct within the meaning of section 4.4.3(1) and/or section 4.4.4(a) of the Legal Profession Act 2004 in that in the course of engaging in legal practice:

(i) between 20 September 2004 and 11 December 2005 the Respondent engaged in a course of conduct by which he contravened section 182(2) of the Legal Practice Act 1996 by failing to keep his trust account records in relation to the Estate of JE Campbell in a manner which adequately explains each transaction involving trust money and/or in a manner that enables his trust account records to be conveniently and properly audited; and

(ii) between 12 December 2005 and 8 March 2007 the Respondent engaged in a course of conduct by which he contravened section 3.3.25(2)(c) of the Legal Profession Act 2004 by failing to keep his trust account records in relation to the Estate of JE Campbell in a way that enabled the trust records to be conveniently and properly investigated.

The conduct referred to in paragraphs 19 to 25 constitutes professional misconduct within the meaning of section 4.4.3(1) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice between 25 October 2005 and 3 November 2005 as a legal practitioner the Respondent engaged in a course of conduct by which he contravened section 174(3) of the Legal Practice Act 1996 by withdrawing trust money held in an interest bearing account for the Estate of EM McDonald in the sum of $45,719.24 and applying such money for another purpose without the consent or written direction of the persons for whom the Respondent held that money on trust.

The conduct referred to in paragraphs 19 to 28 constitutes misconduct within section 4.4.3(1) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice, between 3 November 2005 and 7 December 2005, having a deficiency in the Respondent's trust account, the Respondent contravened Rule 32 of the Trust Account Practice Rules by failing to forthwith notify his auditor of the existence of a deficiency in his trust account.

Charge 8 - Failure to keep a Register of Investments and Securities

The conduct referred to in paragraphs 19 to 23 and 28 to 30 constitutes professional misconduct within the meaning of section 4.4.3(1) and/or section 4.4.4(a) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice:

(i) between about 22 April 2005 and 11 December 2005, having invested trust moneys, the Respondent contravened Rule 22 of the Trust Account Practice Rules by failing to keep a Register of Investments and Securities recording the investment over which he had or could exercise exclusive control in trust for another person; and

(ii) between about 12 December 2005 and 29 June 2007, having invested trust moneys, the Respondent contravened regulation 3.3.30 of the Legal Profession Regulations 2005 by failing to maintain a Register of Investment and Securities recording the information required by regulation 3.3.30(3).

The conduct referred to in paragraphs 19 to 28 constitutes professional misconduct within the meaning of sections 4.4.3(1) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice, between 3 November 2005 and 23 January 2006, the Respondent contravened section 188(1) of the Legal Practice Act 1996 by engaging in a course of conduct which resulted in him having a deficiency in his trust account without reasonable excuse.

Charge 10 - Failure to keep trust account records in a manner that enables the trust account records to be conveniently and property audited

The conduct referred to in paragraphs 19 to 36 constitutes professional misconduct within the meaning of section 4.4.3(1) and/or section 4.4.4(a) of the Legal Profession Act 2004 in that in the course of engaging in legal practice:

(i) between 21 April 2005 and 11 December 2005 the Respondent engaged in a course of conduct by which he contravened section 182(2) of the Legal Practice Act 1996 by failing to keep his trust account records in relation to the Estate of JE Campbell in a manner which adequately explains each transaction involving trust money and/or in a manner that enables his trust account records to be conveniently and properly audited; and

(ii) between 12 December 2005 and 27 June 2007 the Respondent engaged in a course of conduct by which he contravened section 3.3.25(2) of the Legal Profession Act 2004 by failing to keep his trust account records in relation to the Estate of JE Campbell in a manner which adequately explains each transaction involving trust money and/or in a manner that enables his trust account records to be conveniently and properly investigated.

Charge 11 - Unauthorised deposit of trust money held for more than one person in a common account

The conduct referred to in paragraphs 1, 19, 32 and 37 to 43 constitutes professional misconduct within the meaning of section 4.4.3(1) and/or section 4.4.4(a) of the Legal Profession Act 2004 in that in the course of engaging in legal practice:

(i) between 29 November 2005 and 11 December 2005 the Respondent contravened Rule 45 of the Trust Account Practice Rules by depositing moneys held by him on trust for more than one person in a common interest bearing account without written authority of the persons for whom he held that money on trust; and

(ii) between 12 December 2005 and 31 October 2006 the Respondent contravened section 3.3.14(1) of the Legal Profession Act 2004 by holding trust money deposited in a general trust account which was not exclusively for the person on whose behalf it was received and disbursing the trust money without a direction from the person for whom it was held.

Charge 12 - Failure to respond and produce documents to trust account inspector

The conduct referred to in paragraphs 1, 19. 37, 40 and 44 to 50 constitutes professional misconduct within the meaning of section 4.4.4(a) of the Legal Profession Act 2004 in that, in the course of engaging in legal practice, between 20 July 2007 and 8 October 2007, the Respondent contravened section 3.3.45(1) of the Legal Profession Act 2004 by failing to respond to the letter dated 11 July 2007 and produce to Mr Mario Appiah for the purpose of inspection and copying, accounting and other records of the Respondent's legal practice reasonably requested by him that relate to the clients and/or accounts listed in paragraph 44 without reasonable excuse.

1. It is recognised that disciplinary proceedings are not criminal proceedings. They are primarily concerned with the protection of the public.[1] Dispositions are not intended to be punitive.

1. It is accepted by the Commissioner and by the Tribunal that Mr Booth was not acting dishonestly.

1. Where there is repetition of allegations, it is accepted that no increase in penalty should result.

1. General and specific deterrence are both relevant.[2]

1. Mr Booth by seeking to resile from his pleas of guilty has displayed a lack of remorse.

1. The irregularities in the conduct of his trust account by Mr Booth are sufficiently serious to require the disposition to reassure the public that such conduct is unacceptable.
2. Similarly, the need to hold a practising certificate is a means of regulation of the profession which conveys to the public the need to uphold and maintain professional standards. This in turn bolsters public confidence in the profession. Circumventing this scheme of regulation by failing to renew his practising certificate strikes at the heart of the scheme of regulation.

1. Four references were handed up to the Tribunal on Mr Booth's behalf. They disclose that Mr Booth has been an active member of the Hastings community for some considerable time. His community involvement includes active membership of sporting clubs, eleven years as a Councillor of the Shire of Hastings, including a term as Shire President and lawyer volunteer with the Peninsula Community Legal Centre.

1. After the period of practice without a practising certificate, Mr Booth did apply for, and was granted, a practising certificate.

1. Mr Booth has practised since 1974 and has been the subject of one prior finding of professional misconduct in 2008. Mr Booth was reprimanded in relation to that finding.
2. The Tribunal notes the undertaking given by Mr Booth that irrespective of the Tribunal's disposition, he will not apply for a local practising certificate that authorises the receipt of trust money for a period of four years.

1. Having regard to all of the above, it is considered necessary to cancel Mr Booth's local practising certificate. A period of one year is considered to be a sufficient period in which he may not be issued with a practising certificate. Further, it is considered necessary for Mr Booth to complete a course of instruction concerning the conduct of trust accounts before he may be issued with a practising certificate. These together with Mr Booth's undertaking are considered to be necessary and sufficient to ensure the protection of the public.

[1] Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 at 250-251; Hannebery v Legal Ombudsman [1988] VSCA 142 at [16]

[2] Quinn v Law Institute of Victoria Ltd [2007] VSCA 122 at [27] - [31]