RAPHAEL v THE LAW SOCIETY OF NEW SOUTH WALES

Court of Appeal (NSW)|1991-09-23|Before: Mahoney JA

This is an application in respect of the practice of Mr David Keith Louis Raphael. Proceedings have been brought against Mr Raphael by the Law Society and the Disciplinary Tribunal has made orders to the effect that Mr Raphael be struck off the register of solicitors. Mr Raphael has appealed to this Court against the orders made.

The orders were made on 5 September 1991. The appeal papers have not yet been prepared but no doubt they can be prepared if necessary with expedition. The application is for a stay of the effect of the orders pending the determination of the appeal to this Court.

It is not necessary for me to attempt to detail all the relevant circumstances. The nature of the complaints made against Mr Raphael were detailed before the court by Mr Conti QC, who appeared for him on the present application.

I put the matter briefly, and therefore to some extent inaccurately, when I indicate that until approximately 1985 the solicitor's practice was conducted upon a basis which was, as subsequently was found by the Disciplinary Tribunal, quite unsatisfactory. It was unsatisfactory, I am informed, for a number of reasons.

These reasons related to the manner in which the trust account was kept and, it was alleged, the intermingling of the solicitor's moneys with those of his client. It was said that certificates in relation to the trust account had wrongly been given by the solicitor, that is, that they were not accurate to an extent which would involve a breach of the relevant legislation.

The solicitor brought the matter to the attention of the Law Society in or about 1985. There was an application to the court for the appointment of a receiver of the solicitor's practice. Ultimately that application did not succeed. In March 1989 or thereabouts the application was determined. The complaint upon the basis of which the present orders were made was not made until June 1990. The solicitor continued to carry on his practice between the date on which he notified the Law Society of the need for it to investigate the position - I put that matter generally - and the present time.

The Disciplinary Tribunal has, as the court is informed by Mr Lindsay for the Law Society, taken the view that the breaches involved were serious breaches and that the solicitor could no longer be allowed to continue in practice.

It is not in issue but that the appeal which has been brought is a bona fide appeal and I shall act upon the basis that there is the appropriate possibility that it may succeed.

The question to be determined by a court in considering the stay of an order striking the solicitor from the roll of solicitors pending a bona fide appeal was considered by this Court in Cahill v The Law Society (Court of Appeal, 17 December 1987, unreported).

There were between that case and the present differences in the facts but the principles upon which the court should act were there referred to. It is not necessary for me to recapitulate them. The principal matter to which I think in the present case regard should be had is the need to protect the public against the solicitor's defaults or inactions in the carrying on of his practice pending the determination of the appeal.

It is obvious that, he having carried on practice since 1985 or thereabouts and having continued to carry on practice to the present time without, as I understand, any specific defaults, it would be a serious step to allow the order of the Disciplinary Tribunal to operate (upon the expiration of the temporary stay given by it) so as to bring his practice to an end. If he should succeed upon the appeal, very serious damage would, of course, be suffered by him and those connected with him if the court took such a course.

I think, notwithstanding what Mr Lindsay has said, that it is appropriate that some appropriate stay be given. However, as I indicated during the hearing of the application, I am concerned to ensure that there is some kind of supervision pending the hearing of the appeal so as to ensure that, as far as may be, there will be no further defaults or omissions, particularly defaults or omissions which might damage the clients or other members of the public.

Counsel for Mr Raphael has now proffered an undertaking. The undertaking is in the following form: that the claimant will engage Messrs Priestley and Morris, Chartered Accountants, to undertake a monthly audit of the claimant's practice and report thereon to the opponent; and that the claimant will take all steps within his capacity to expedite the hearing of the appeal.

I think that undertakings of this kind, if they be carried out, will at least provide some basic safeguard of those who should be safeguarded against possible defaults or inactions by the solicitor. If such undertakings are given and carried out, I think that it is appropriate to make an order granting the stay in question.

In the circumstances, therefore, noting the undertakings which have been given, I will order that the orders made by the Disciplinary Tribunal on 5 September 1991 be stayed up to and including the date of determination of the present appeal or further order of the court.

I will make an order for expedition of the appeal. Having regard to the undertakings, which I have read out, by Mr Raphael to do whatever he can to have the appeal expedited, I w.ill not detail the steps to be taken in the preparation of the appeal papers. If there is any problem in relation to the matter, an application may be made to a single judge in this Court.

I order the appeal be expedited. I order that the orders made on 5 September 1991 be stayed until the hearing of the appeal or further order. The costs of this application will be costs of the appeal and any exhibits which were tendered in the present application may be returned.

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Judgment (17 paragraphs)

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