RADIN v THE LAW SOCIETY OF NEW SOUTH WALES

Court of Appeal (NSW)|1997-05-14|Before: Mason P, Spender AJ, Priestley JA, Meagher JA, Handley JA

SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL

Mason P, PRIESTLEY JA and MEAGHER JA 23 April, 14 May 1997

In proceedings in the Legal Profession Disciplinary Tribunal, the appellant was found guilty of professional misconduct and his name was ordered to be removed from the Roll of solicitors. The proceedings arose out of several complaints made to the Law Society concerning the appellant's practice as a solicitor, including the handling of trust monies.

ON APPEAL, the appellant challenged the trial judge's findings on several of the complaints to the Law Society. He conceded that it was appropriate he should have been struck off but sought to mitigate the seriousness of the findings of Spender AJ concerning the breaches of ss61,62 Legal Profession Act 1987 in the event that he may seek to be readmitted in the future.

The trial judge had not erred in making adverse findings against the appellant related to the various grounds of complaint challenged on appeal. The seriousness of the misconduct revealed in the unchallenged findings (concerning breaches of ss61,62 Legal Profession Act 1987) remains undiminished, and even if these breaches stood alone, they would merit removal from the Roll.

Discussion of procedure to protect appellant's right (if readmission sought) to challenge certain findings of Spender AJ which Court of Appeal did not find it necessary to address.

Mason P, Priestley JA and Meagher JA. In 1982 the appellant was admitted to the Roll of Solicitors and issued with a Practising Certificate. He commenced practice as a sole practitioner. On 11 September 1992 a receiver was appointed to the appellant's practice by the Law Society. Pursuant to s 135 of the Legal Profession Act 1987 ('the Act') the Law Society complained to the Legal Profession Disciplinary Tribunal, contending that the appellant was guilty of professional misconduct. Following a lengthy hearing in late 1993 the Tribunal issued its determination and orders on 23 December 1993. It was ordered that the appellant's name be removed from the Roll of Solicitors and that the appellant pay the costs of the Law Society of the proceedings before the Tribunal.

The appellant appealed to the Supreme Court pursuant to s 164 of the Legal Profession Act 1987. Initially the proceedings were assigned to the Court ofAppeal (see Supreme Court Act s 48(1)(a)(viii) and (2)(g)). On 6 June 1994 the appellant informed Handley JA that he proposed to exercise the right conferred by s 164(4) of the Act to conduct the appeal as a new hearing on fresh evidence. (The appellant had not given evidence before the Tribunal.) In view of this indication and the estimate that the appeal would last five days, Handley JA, after consulting with the other judges of the Court, made an order on 17 June 1994 remitting the proceedings to the Common Law Division for determination by trial of the whole of the proceedings (see Supreme Court Act, s 51(4)).

The proceedings were heard by Spender AJ over many days (well in excess of the five day estimate) spanning between August 1994 and March 1995. The Law Society accepted that it bore the forensic burden in the appeal 'by way of a new hearing' under s 164. In a reserved judgment given on 4 August 1995 Spender AJ dismissed the appeal with costs. The appellant appeals from those orders to this Court.

The case made by the Law Society against the appellant was set out in two complaints. The first was dated 22 May 1992. It incorporates three reports of Geoffrey Selwyn Lewis, a solicitor who was appointed by the Council of the Law Society to investigate the affairs of the appellant. The complaint and Mr Lewis" three reports run to over 1,900 pages. A supplementary complaint was adopted by the Council of the Law Society on 6 May 1993. That complaintincorporates a report by Ms Jean Sayer of 6 April 1996 which covers some 160 pages.

Breaches of ss 122 and 273 of the Workers Compensation Act 1987.

Failure properly to account to clients and to keep accounts as required by the Legal Profession (Trust Accounts and Controlled Money) Regulation, 1988.

Failure properly or adequately to communicate with clients, their solicitors, or the Law Society.

Undue delay in handing over files and rendering accounts.

Breach of the Damages (Infants and Persons of Unsound Mind) Act,

Breaches of s 61 of the Legal Profession Act, 1987.

Breaches of s 62 of the Legal Profession Act, 1987.

The solicitor, in his applications for renewal of his practising certificate for the years 1990-91, 1991-92 and 1992-93, falsely declared that, in the year since his last application for a practising certificate, he had not received, held or disbursed trust money or controlled money on behalf of any other person.

Several of the grounds of complaint contained subgrounds involving separate incidents.

By an amendment allowed by Spender AJ, a thirteenth ground was added which related to loans purportedly made to an employee, Martin Konda, and how they were recorded in the appellant's trust ledger before Spender AJ.

Spender AJ was not satisfied that Ground 2 or that parts or sub-grounds of Grounds | and 3 were made out. Ground 12 was not pressed. His Honour found that the remaining grounds or sub-grounds were established and that the order removing the appellant's name from the Roll of Solicitors remained the correct disposition of the appeal before him.

In his Notice of Appeal, the appellant challenged most but not all of the adverse findings made by Spender AJ on particular items of complaint. It was also contended in the Notice of Appeal that the trial judge had erred in taking into account the finding of the Tribunal in

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determining his own findings against the appellant; and that he had erred in finding that the appellant should not remain on the Roll.

The parties had been directed to file written submissions in the Court of Appeal well in advance of the date fixed for hearing. The appellant's submissions were dated 12 November 1996. In them he addressed, sometimes in fairly general terms, those of the grounds of appeal raised in the Notice of Appeal from the orders of Spender AJ which were still being pressed. By this stage in the proceedings the appellant, who had been represented by counsel in the trialbefore Spender AJ, was acting for himself. (Formal notice of ceasing to act was filed by his former solicitor on 3 April 1997.)

The Law Society responded with its submissions dated 1 December 1996. These joined issue with the matters raised in the appellant's submissions. On 18 April 1997 counsel for the Law Society filed a Supplementary Outline of Submissions. It was submitted that some of the matters in respect of which Spender AJ (and the Tribunal) had made adverse findings against the appellant were so overwhelmingly serious that, independently of any other ground of complaint, the only possible order that could have been made was an order striking the solicitor off the Roll. Particular attention was drawn to the findings relevant to grounds of complaint 10 (Breaches of s 61, Legal Profession Act) and 13 (Breach of s 62, Legal Profession Act re Martin Konda).

When the matter came on for hearing the appellant was asked whether he was content, in the first instance, to join issue with the Law Society with respect to grounds of complaint 10 and 13. The appellant was invited to put any argument raised by his Notice of Appeal relevant to those grounds and to the orders that should appropriately be made were the Court of Appeal of the view that Spender AJ had not erred in dealing with those grounds. The appellant indicated that he was content to do this, subject to his position being protected in one respect to which we shall return. Indeed the appellant went significantly further. He stated that he did not challenge the findings of Spender AJ referable to grounds ofcomplaint 10 and 13; that he conceded the gravity of those grounds; and that he conceded that those grounds (standing alone) meant that the order that his name be removed from the rolls had properly been made. Indeed he said that he accepted that it was appropriate that he should remain off the rolls, at least for the present (Appeal transcript p 21). He conceded that:

... at the end of the day the rules were broken, and the appropriate course was taken.' (ibid).

These concessions were made frankly and without reservation, although the appellant addressed argument as to the nature and extent of his 'wilfulness' in the context of his submissions concerning Exhibit 8 to which we shall return.

Spender AJ's findings on these two grounds were expressed as follows:

Ground 10. Breaches of Section 61 of the Legal Profession Act.

The breaches of Mr Radin of section 61 of the Act amount, in my opinion,

to some of the most serious breaches of his professional obligations committed by him. The evidence mainly relied on by the Law Society,

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namely, Ms Sayer's report (which is found in Exhibit "C') and her affidavit of 14 October 1994, is, in my opinion virtually unchallenged. In this area my findings are:

Mr Radin had a legal practice which was expanding at an impressive rate. He was at one time the largest sole practitioner in the State. His general account facilities with the Commonwealth Bank caused no problems until the bank first rejected cheques drawn on the general account.

Matters were then generally repaired; but even so cheques were rejected from time to time as indicated above.

Mr Radin, as matters progressed, was put on clear notice by the Commonwealth Bank that if he did not adhere to his limits cheques would be rejected.

He continued to conduct his practice as he had in the past, and to finance the drawing of cheques on the trust account by transfer of funds from the general account, despite the fact that on an increasing number of occasions as the months progressed (and I direct attention particularly to the period February to September 1992), the bank was dishonouring cheques.

While Mr Radin had put the Law Society on notice that he was experiencing difficulties with the bank, that does not detract from the seriousness of the way in which the trust account was used in the period February to September 1992. There can be no doubt that in this period breaches of section 61 were taking place as a result of the practice deliberately adopted and continued by Mr Radin.

Some of the funds drawn on the trust account were, as the Law Society submitted, funds from which Mr Radin derived a benefit. This emerges from the affidavit and oral evidence of Ms Sayer and her report which establishes the following:

(i) A trust account was kept in the name of Mr Radin's former wife. This was, Ms Sayer said, "virtually an account which has been acknowledged by Mr Radin as his own account." (T201).

(ii) On 10 February 1992 $5,500 was deposited to the trust account from the general account and credited to the trust ledger account of Judith Radin. The cheque was returned on 11 February, redeposited on 13 February, returned on 14 February and redeposited and finally met on presentation on 18 February. On 10 February a trust account cheque was drawn and presented payable to Michael Miceli. Mr Miceli, Mr Radin confirmed in his evidence (T328) was his former wife's solicitors. Costs were due to him as part of an overall settlement between Mr Radin and his wife.

(iii) On 7 April 1992 a general account cheque for $10,000 was deposited to the trust account and credited to Mrs Radin's trust ledger account. The cheque was returned by the bank and redeposited and met on presentation on 10 April. On 8 April a trust account cheque payable to V Radin was debited Mrs Radin's account. V Radin was Mr Radin's mother; the payment was made as part of Mr Radin's family arrangements. (Mr Radin's evidence, T331).

(iv) On 23 April a general account cheque for $10,3994.32 was deposited to the trust account and credited to Mrs Radin's trustledger account. The cheque was returned by the bank and redeposited and met on 30 April 1992. On 23 April a trust account cheque for $10,394.32 payable to the registrar of the District Court in relation to a debt due to ADC Properties was

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met. This was to meet rent for Mr Radin. (Ms Sayer, T202; and see also Mr Radin's evidence, T332).

(v) Mr John Petrovic was an employee of Mr Radin: there was a trust ledger account in his name. On 15 May 1992 a trust account cheque for $6,400 was met by the bank. It was payable to Ms Christine Harvey, Mr Radin's fiancee. The trust ledger account in Mr Petrovic's name was in debit to the amount of $6,500 from 15 May to 22 May 1992.

(vi) In each of these four cases trust funds were used to meet Mr Radin's personal needs. This could and should have been done by drawing on his general account; the inference I draw is that trust funds were used so that Mr Radin could be sure the cheques were met on presentation - something he could not be sure of where his general account was concerned.

(h) In Mr Radin's statement of evidence ... he said he believed that every cheque he drew on his office account and posted to the trust account would be met. That was said by him not in the course of cross-examination, but with all the opportunities, to assess, refine, and qualify which a written statement of evidence gives - especially, if the person making the statement is a lawyer. The evidence to which I have referred satisfied me that this statement was not true, and that Mr Radin knew it to be untrue when he made it. In cross-examination before me Mr Radin contradicted his own earlier, deliberate, statement. I quote:

"Q: During 1992 until the receivership the bank was regularly dishonouring general account cheques paid into your trust account?

"Q: During 1992 did the bank appear to dishonour general account cheques on a random basis, random in the sense that it appeared to bear no relationship to any particular overdraft limit on your account?

A: I think I have already answered that. I do not think there was any relationship to the overdraft limit. Whether it was random or not, I don't know but certainly you could not tell which one would be honoured and which one would not." [emphasis in original]I find that there have been wilful breaches by him of section 61 of the Act. I think it sufficient to confine those wilful breaches to the period February to September 1992, and I do so. In the end result, there was a deficiency in the sum of $54,940.24.

In reaching this conclusion, I reject the elaborate submissions which were made on his behalf as to there being a comfort zone in respect of unpresented cheques. Nor do I think it necessary to go into this submission; the evidence of Ms Sayer demolishes it - so far as any demolition was needed. (T208. 209). The fact of the matter is that the deficiency was there.

Mr Radin paid the sum of $11,355.00 into his trust account on 15 October. To that extent the deficiency was reduced. In an affidavit sworn by Mr Radin on 15 October 1992 he said that he had made arrangements to receive funds in the sum of $43,585.24 and that these would be paid into the trust account to clear the remaining debit. This was never done.'

Ground 13: The solicitor caused to be made entries in the trust ledger account which purported to record loans to Martin Konda (an employee of the solicitor). Those entries were false and made to conceal the identity of the true recipient of the monies.

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Mr Martin Konda gave evidence. (T184 - 189). He was called in the Law Society's case. He had been employed by Mr Radin in June 1988 and he continued to employed in the practice until the post-receivership period. He said that he had been given a number of cheques over a two or two and half year period. These were trust account cheques made payable to him. They were in varying amounts, $2,000, $10,000, $12,000. The cheques were given to him by either Mr Radin or the accountant, Mr Gopal. He then took them to the Commonwealth Bank at Fairfield, put those cheques into his account, withdrew the same amount in cash and brought it back to the office. Mostly this happened on the same day. When he got back to the office, he would give the cash to Mr Radin or to the accountant. On the occasions when he gave it to Mr Radin, this was because Mr Radin had told him to do that. They were not loans to him and there was never an occasion when, on being given a trust account cheque by Mr Radin, he did not, as soon as practicable give back to Mr Radin the entire cash equivalent of the cheque. There were occasions when some of the cash was paid directly to a Dr Bannister; this was done by Mr Konda on instructions from Mr Radin. From the limited information he had, he understood these were loan monies to DrBannister. On occasions he was asked by Mr Radin to uplift cheques from Dr Bannister and did so. He was asked about Mr Radin's practice of lending money to clients and said that he had been doing this since very early in the piece. There was a time when Mr Radin lent Dr Bannister a sum of $10,000; he understood that sum had not been repaid. With the exceptions of the time when he took some money to Dr Bannister the whole of the funds to which I have referred would go to Mr Radin or to Mr Gopal. Sometimes he was told the reasons, sometimes not; when told, the reasons appeared to have been to assist clients. He was not aware of any other procedure for cashing cheques.

There was in evidence an acknowledgment by Dr Bannister of a debt by him to Mr Radin (Exhibit 14) and he gave evidence (T350-354). He said he had lost his license to practice as a doctor and that he borrowed money from Mr Radin, amongst others. In all he had borrowed around about $70,000 from Mr Radin; some of this amount had been repaid.

Ms Sayer in her affidavit and her report gave these examples of transactions through the trust ledger account styled "Martin Konda re Investments":

(a) On 6 February 1992 deposit of general account cheque for $5,000 into the trust account; trust account cheque payable to Mr Konda met on the same day. (The general account cheque was not met until 14 February 1992).

(b) On 24 April 1992 deposit of general account cheque for $2,500 into the trust account; trust account cheque payable to Mr Konda met on the same day. (The general account cheque was not met until 30 April 1992).

(c) On 11 May 1992 deposit of general account cheque for $7,000 into the trust account; trust account cheque payable to Mr Konda met on the same day. (The general account cheque was not met until 22 May 1992).

(d) On 15 May 1992 deposit of general account cheque for $5,000 into the trust account; trust account cheque payable to Mr Konda met on the same day. (The general account cheque was not met until 22 May 1992).

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Mr Radin was cross-examined about the use of Mr Konda and the trust ledger Mr Konda's name. He admitted there was a trust ledger account in Mr Konda's name headed Martin Konda Investments (T307). He admitted the practice of which Mr Konda had given evidence of. (T308). The cheques were not loans to Mr Konda. It was, Mr Radin said, a means of having a record of where money went and to whom it went. (T309). He agreed that the money was not going to Mr Konda and the explanation given for having cheques made to Mr Konda was because ofthe time factor with the bank in regards to certain loans that he gave to certain people. (T309). This evidence was then given:

"Q: You understand that you cannot draw a trust account cheque payable to cash.

Q: But you understand you cannot draw a trust account cheque payable to cash?

Q: A cheque must be made payable to a specific person or an entity?

Q: You used Mr Konda to procure money in order to advance it to other people?

He conceded he had lent large amounts of money to Dr Bannister and asked why he didn't draw the cheque payable to Dr Bannister he said that he didn't want to have a record of it because he was concerned about the perception of touting. He agreed that he wanted the records not to disclose the fact that he had lent money to Dr Bannister. (T309,310).

"Q: And you put the monies through the Martin Konda trust ledger account so the record would not reveal that they were loans to Dr Bannister?

Q: So, you deliberately embarked on a process of keeping trust account records that displayed a false picture, isn't that right?

A: No, because I had informed Martin Konda what I was doing with the money."

I do not accept the explanation given by Mr Radin for the use he made of Mr Konda. I take one facet of his evidence: to say, on oath, that Mr Konda's account was a means of having a record of where the moneywent is not just obvious nonsense but, in my opinion, untruthful. Mr Radin knew that cash payments could not be made out of a trust account, and adopted a means of circumventing that requirement. In creating a trust account for "Martin Konda Investments' he breached section 62(1) and also, it seems to me, section 62(2). If in essence there is a record in a trust

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account of fictitious transactions then I do not see how those transactions - on their face valid - can be conveniently and properly audited.'

As stated, the appellant accepted the accuracy of these findings, subject to one minor and irrelevant qualification. (He disputed that the trust account for 'Martin Konda Investments' had been created for the purpose of paying Dr Bannister. We do not understand the judge to have held otherwise.)

Standing alone, these findings reveal serious breaches of the solicitor's statutory and professional obligations.

As to the former ground, the breaches of s 61 resulted in a shortfall in the trust account that stood at $54,940 at the date when a receiver was appointed to the appellant's practice on 11 September 1992. However there had been a shortfall of fluctuating amounts for most if not all of 1992. It was the result of a practice whereby the solicitor banked general account cheques to his trust account and drew trust account cheques against such deposits before they were cleared; and in circumstances where these general account cheques were being continually dishonoured by the appellant's bank. The shortfall in the trust account fluctuated depending on the exact quantity of general account cheques which remained dishonoured. The seriousness is heightened by recognition thatnumbers of the cheques drawn from the trust account against dishonoured general account cheques were for the appellant's personal purposes. The appellant gave evidence, which Spender AJ rejected as deliberately untrue, that he believed that every cheque he drew on his office account and deposited to his trust account would be met.

As to the latter ground, the gravamen of the breach was that, in order to circumvent the trust account regulation which prevented the drawing of trust account cheques payable to cash (Clause 11(1) and 11(2)(c) Legal Profession Trust Accounts & Controlled Money Regulation 1988), the appellant drew cheques in favour of an employee, Mr Konda, which were recorded in a trust ledger account entitled 'Martin Konda Investments'. In fact, these were not investments by Mr Konda. Mr Konda, on instructions from the appellant, took the trust account cheques to the bank, cashed them and gave back the cash to the appellant. One of the reasons why this was done was to conceal the fact that the appellant wanted to use such funds to make loans to Dr Roger Bannister. On numbers of occasions such trust account cheques were drawn on the strength of general account cheques which were dishonoured upon presentation. In other words, the appellant was withdrawing funds from his trust account, to which he had no entitlement, to obtain cash with which to make loans.

Without seeking to resile from his acceptance that these findings had been properly made, the appellant argued that some of the sting of the wilfulnessfinding would have been drawn had his Honour appreciated the full effect of Exhibit 8. Exhibit 8 was a 'Supplementary Statement' by the appellant in the form of an unsworn affidavit. In it the appellant responded in detail to an

UAADIN v THE LAW SOCIETY OF NEW SOUTH WALES (Mason P, Priestley JA an@

affidavit of Ms Jean Sayer. (In that affidavit Ms Sayer had annexed a schedule setting out the composition of numerous unpresented cheques, some dating from early 1988, drawn on the appellant's Trust Account but remaining unpresented at the date of the receivership, namely 11 September 1992. The totality of these unrepresented cheques was $87,559.35.) In para 2 of the Supplementary Statement the appellant indicated that he laid claim to a number of these cheques under two bases:

'Tadvanced certain funds directly from my General Account into my Trust Account to meet various payments to cover disbursements.' (He annexed a Schedule listing such cheques.)

'Although not falling in category (1.) above, there are other trust account cheques to which I have always had an entitlement for a variety of reasons which I separately address hereunder, but generally the list of this category of cheques ... [are cheques] the entitlement to which, when written back into the ledger are alternatively the subject of a lien or are due and payable to Radin & Associates General Account.' (Then followed, at paras 3.1 - 3.75, an explanation relating to each specific cheque referred to in para (ii) above.)The transcript of hearing before Spender AJ reveals that the appellant's Supplementary Statement was dealt with as if it were an affidavit. It was read. Particular paragraphs or parts of paragraphs were objected to and rejected (Tr234 - 5, 242-4). The Transcript shows (Tr244) that the Supplementary Statement of the appellant was 'tendered, admitted without objection and marked Exhibit 8'. What appears to have been marked as Exhibit 8 are the annexures to the Statement. The appellant submits that this discloses that the narrative portions of the Statement (being those which were not rejected on various grounds) were not taken into account by the trial judge. We do not think that the transcript or any evidence put before us supports this contention. What appears to have happened is that the judge regarded the narrative portion as an __ affidavit, notwithstanding that it does not appear to have been formally adopted on oath by the appellant.

Eventually it was common ground between the parties to the appeal that the Court should regard the narrative portion of the Supplementary Statement (minus those parts that had been rejected - the rejection not being the subject of a ground of appeal) as material before Spender AJ and therefore before this Court in the appeal by way of rehearing from Spender AJ.

At the end of the day the narrative portion of the Supplementary Statement does little if anything to remove the sting of the admittedly wilful breaches of ss 61 and 62 of the Act. First, it does not address, let alone explain, the fluctuatingshortfall in the Trust Account which, as already indicated, was partly the product of drawings for private

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purposes of the solicitor. Second, even with respect to those parts of the Trust Account to which the Supplementary Statement relates, the material discloses irregularities without mitigating them. In an affidavit sworn 14 October 1994 Ms Sayer explained why the lists of unpresented Trust Account cheques cast no light helpful to the appellant's attempt to mitigate the established wilful breaches. She said (para 13)

The total value of the outstanding cheques did not represent a pool of funds held in the trust account on behalf of Michael Radin. The only sense in which it could be said that there was a pool of funds was that cheques drawn against cheques which were dishonoured creating a deficiency would not reduce the balance in the trust bank account to the extent that it was necessary to draw down on the Statutory Deposit. If the cheques had been presented the balance in the trust bank account would have been reduced by the amount of the cheques.' (3464 vol 16 AB).

Ms Sayer adhered to this position in her oral evidence, and she was not shaken from it. The trial judge was entitled to accept this position, as he did, in the penultimate paragraph of the passage quoted above referrable to his findings on complaint Ground 10.

We would therefore conclude that the seriousness of the misconduct revealed in the unchallenged findings referable to complaint Grounds 10 and 13 remains undiminished.

In all of the circumstances the appellant's concession that it was appropriate that he should have been struck off was correctly and inevitably made. The objectiveof the disciplinary jurisdiction exercised by the Court is the protection of the public. But it is also exercised to ensure that there can be a continuing accreditation of a legal practitioner as a fit and proper person to remain on the Roll and have dealings involving trustworthiness with courts and other solicitors: see Council of the Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444-6 per Mahoney JA. In respect of a solicitor's dealings with clients" funds, Street CJ in Law Society of New South Wales v Jones (Court of Appeal, unreported, 27 July 1978 at p 10) said that: 'reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor'. We respectfully agree.

In Du Pal v The Law Society of New South Wales (Court of Appeal unreported 26 April 1990) Kirby P recorded (at p 3-4) that:

The researches of neither counsel before the Court could produce a single case in which, following a finding of misappropriation of trust funds or wilful contravention of s 41(1) of the [Legal Practitioners Act, 1898] Act, the Court had

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not proceeded to remove the name of the practitioner concerned from the roll of practitioners .... [The] normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll.

(Section 41(1) of the 1898 Act is the predecessor of s 61(1) of the 1987 Act.) Handley JA spoke to similar effect at pp 22-3 of his judgment in the same case.

As previously indicated, the appellant effectively conceded this position. As he was entitled to do, he reserved the possibility that he might seek at some time in the future to be readmitted to his former profession. It was in this context that the question of protecting his position in the future arose. The appellant perceives that, in the context of seeking to establish his fitness, it would be necessary to address each and every one of the established grounds of complaint that led to him being struck off the Roll, initially by the Tribunal on 23 December 1993. Because the appellant maintains his challenge to the adverse findings of Spender AJ on the grounds other than grounds 10 and 13, the appellant is concerned that our dismissal of his appeal to this Court on the more limited bases covered by the foregoing reasons would leave him at a position of disadvantage.

These concerns may be noted, but they do not suggest to us that it is appropriate for us to address this appeal on any broader basis other than indicated above. In the first place, the unchallenged breaches covered by grounds 10 and 13 are the most serious of those raised against the appellant, and would merit removal from the Roll, even if they stood alone.

Secondly, an appeal lies from an order, and not from the reasons upon which it may or may not be based: see eg Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 318. It is an almost daily occurrence for an appeal to be dismissed on grounds narrower than those which theappellant tenders in argument. The reasons for this judicial economy are obvious. There is nothing about the present type of appeal that takes it out of the ordinary case, as a matter of principle.

Thirdly, the appellant's concerns are, in a strict sense, hypothetical. Even if he were to seek readmission at some time in the future, there is the possibility that he may then not feel as aggrieved with the remaining findings by Spender AJ as he now states he is. After all, his Notice of Appeal challenged the very serious findings covered in grounds of complaint 10 and 13, but that challenge was not pressed when the matter came before us for hearing.

Fourthly, the appellant is protected in the sense that his objection to the remaining findings by Spender AJ is a matter of record. In the unlikely event that aspects of those

findings were critical to any future application for readmission, then the appellant's right to press that application, ultimately in this Court, will in the end ensure that he has the capacity to meet the concerns now raised: see Dawson v Law Society of NSW (Court of Appeal, unreported 21 December 1989 per Kirby P, Mahoney & Meagher JJA). We would dismiss the appeal with costs.

Appeal dismissed with costs. Counsel for the appellant: IV PERSON

Counsel for the respondent: J WALES Solicitors for the respondent: THE LAW SOCIETY OF NEW SOUTH WALES

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