1. The following 107 paragraphs set out the allegations contained in the application for orders. The annexures were included with the application.

1. The Respondent was admitted to practice as a legal practitioner on 1 June 1981 and was an Australian legal practitioner within the meaning of the Act.
2. From 1 June 1981 to 31 October 2013 the Respondent held a practising certificate authorising him to engage in legal practice as a principal and that authorised him to receive trust money.

3.1 Under the Legal Profession Uniform Law (Victoria), the Victorian Legal Services Board (VLSB) maintains an 'Australian Legal Profession Register' where a lawyer's home jurisdiction is Victoria. According to this Register, between 1 November 2013 and 24 February 2016, the Respondent held an employee practising certificate without trust account authorisation.

3.2 On 27 April 2015, the Respondent applied to renew his employee practising certificate without trust account authorisation for the 1 July 2015 to 30 June 2016 practising year.

3.3 The Respondent's application had not been determined by the VLSB until 24 February 2016. Pursuant to Rule 17(2) of the Legal Profession Uniform General Rules 2015, the Respondent's employee practising certificate without trust account authorisation was taken to have continued in force from 1 July 2014 to 24 February 2016.

3.4 On 24 February 2016, the Respondent's application to renew his employee practising certificate without trust account authorisation was refused. The Respondent has not held a practising certificate of any sort since that date.

1. From 1 February 1989 to 10 May 1989, the Respondent was an employee solicitor of Hardys Lawyers.
2. From 10 May 1989 to 31 August 1997, the Respondent was a legal partner of Hardys Lawyers.
3. From 1 September 1997 to 31 October 2013, the Respondent was the sole practitioner of Hardys Lawyers.
4. From 1 November 2013 to 24 February 2016, the Respondent held an employee practising certificate and worked at Hardys Lawyers.

1. In or around June 2010, Hardys Lawyers agreed to act for Debra McDonald (Ms McDonald) in relation to a family law matter.
2. On 9 June 2010, Ms McDonald paid $440.00 into Hardys Lawyers' trust account (the trust account).

Annexure 1: Copy of Hardys Office Receipt dated 9 June 2010.

1. On 15 June 1010, Ms McDonald signed a Legal Services Agreement with Hardys Lawyers in relation to a "Family Law Matter". In that agreement, it was noted (at paragraph 5 (f)) that:

No precise forecast of the amount of work that will need to be done in your matter can be made at this stage.

The firm is authorised to transfer monies held in its trust account on behalf of the client to meet accounts (including interim accounts) rendered to the client by the firm from time-to-time upon said account being rendered to the client.

Annexure 2**:** Copy of Hardys Solicitors Legal Services Agreement (Family Law Matter), dated 15 June 2010.

1. In an undated "Disclosure Statement", which Ms McDonald received with the Legal Services Agreement, it was noted that if the matter was litigated, it was estimated that the costs would be in excess of $20,000.00 (at paragraph 3 (c)).

Annexure 3**:** Copy of undated Hardys Solicitors Disclosure Statement.

1. On 16 June 2010, Hardys Lawyers issued a "Memorandum of costs and disbursements" for $440.00, to:

our professional costs including all telephone attendances upon you, perusal of your instructions, preparation for conference, conference with you and all correspondence forwarded to you, care, skill and attention:-

Annexure 4**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 16 June 2010.

1. On 16 June 2010, Hardys Lawyers issued a "Statement of Account and Notice of Withdrawal of Trust Money" for an amount of $440.00.

Annexure 5**:** Copy of Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 16 June 2010.

1. On 18 June 2010, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $8,800.00, to:

The Memorandum of costs was not signed and did not contain any address of the client.

Annexure 6: Copy of Hardys Lawyers Memorandum of costs and disbursements dated 18 June 2010.

1. On 28 June 2010, a Trust Account Receipt (TA 470430) was completed in relation to $8,800.00 paid by Ms McDonald by EFT for "payment of account" in Matter No 2010 0133.

Annexure 7**:** Copy of Hardys Law Practice Trust Account Receipt (TA 470430) dated 28 June 2010.

1. On 28 June 2010, $8,800.00 was paid from Hardys Lawyers' trust account for Ms McDonald into its office account (the office account) (by cheque 5457). After the transfer to the office account, the balance of monies held on trust for Ms McDonald was zero.

Annexure 8**:** Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 12 October 2010, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No. 2010 0133 for $10,000.00, to interim professional costs for the period 17 June 2010 until 12 October 2010.

Annexure 9**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 12 October 2010.

1. On 12 October 2010, Hardys Lawyers also issued a "Statement of Account and Notice of Withdrawal of Trust Money" noting $8,800.00 was received on 28 June 2010 and recording an outstanding amount of $1,200.00. The Statement of Account dated 12 October 2010 does not record:
   • the Memorandum of costs and disbursements dated 18 June 2010; or
   • that the $8,800.00 received on 28 June 2010 had already been paid into the office account.

Annexure 10**:** Copy of Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 12 October 2010.

1. On 18 October 2010, a Trust Account Receipt (TA 470521) was completed in relation to $3,400.00 paid by Ms McDonald by EFT for "payment of account" in Matter No 2010 0133.

Annexure 11**:** Copy of Hardys Law Practice Trust Account Receipt (TA 470521) dated 18 October 2010.

1. On 21 October 2010, $1,200.00 was paid from Hardys Lawyers' trust account for Ms McDonald to "Hardys" (by cheque 5574). After the transfer to the office account, the balance held on trust for Ms McDonald was $2,200.00.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 21 October 2010, Hardys Lawyers issued a "Memorandum of costs and disbursements" to "Mr Debra McDonald" in relation to File No. 2010 0133 for $9,400.00, to:

The Memorandum of costs was not signed and did not contain any address of the client.

Annexure 12: Copy of Hardys Lawyers Memorandum of costs and disbursements dated 21 October 2010.

1. On 27 October 2010, a Trust Account Receipt (TA 470534) was completed in relation to $7,200.00 paid by Ms McDonald by "transfer", being a "retainer payment" in Matter No 2010 0133.

Annexure 13**:** Copy of Hardys Law Practice Trust Account Receipt (TA 470534) dated 27 October 2010.

1. On 28 October 2010, $9,400.00 was paid from Hardys Lawyers trust account for Ms McDonald into its office account (by cheque 5578). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 10 November 2010, a Trust Account Receipt (TA 470545) was completed in relation to $600.00 paid by Ms McDonald by "Direct Debit" being for "retainer" in Matter No 2010 0133.

Annexure 14**:** Copy of Hardys Law Practice Trust Account Receipt (TA 470545) dated 10 November 2010.

1. On 11 November 2010, $600.00 was paid from Hardys Lawyers' trust account for Ms McDonald into its office account (by cheque 5583). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 16 March 2011, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $10,000.00, to interim professional costs for the period 14 October 2010 to 16 March 2011.

Annexure 15**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 16 March 2011.

1. On 16 March 2011, Hardys Lawyers also issued a "Statement of Account and Notice of Withdrawal of Trust Money", noting that:
   • $1,200.00 was outstanding as at 12 October 2010;
   • amounts were received on 18 and 27 October, and 10 November 2010; and
   • the amount outstanding was "nil".

• the Memorandum of costs and disbursements dated 21 October 2010;
• that $9,400.00 had been paid into the office account on 28 October 2010;
• that $600.00 had been paid on 10 November 2010;
• that $600.00 was paid into the office account on 11 November 2010.

Annexure 16**:** Copy of Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 16 March 2011.

1. On 21 March 2011, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $8,800.00, to:

The Memorandum of costs was not signed and did not contain any address of the client.

Annexure 17: Copy of Hardys Lawyers Memorandum of costs and disbursements dated 21 March 2011.

1. On 29 March 2011, a Trust Account Receipt (TA 671818) was completed in relation to $8,800.00 paid by Ms McDonald by EFT being for "Payment of account" in Matter No 2010 0133.

Annexure 18**:** Copy of Hardys Law Practice Trust Account Receipt (TA 671818) dated 29 March 2011.

1. On 30 March 2011, $8,800.00 was paid from Hardys Lawyers' trust account for Ms McDonald into its office account (by cheque 5666). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 16 May 2011, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $15,200.00, to:

Annexure 19**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 16 May 2011.

1. On 17 May 2011, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $14,000.00, to interim professional costs for the period 17 March 2011 to 16 May 2011.

Annexure 20**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 17 May 2011.

1. On 17 May 2011, Hardys Lawyers also issued a "Statement of Account and Notice of Withdrawal of Trust Money", noting that:
   • $8,800.00 had been received on 29 March 2011; and
   • following the account dated 17 May 2011, the amount outstanding was $5,200.00.

• the Memorandum of costs and disbursements dated 21 March 2011 and 16 May 2011;
• that $8,800 had been paid into the office account on 30 March 2011.

Annexure 21**:** Copy of Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 17 May 2011.

1. On 24 May 2011, a Trust Account Receipt (TA 671855) was completed in relation to $15,200.00 paid by Ms McDonald by EFT being for "On account of costs" in Matter No 2010 0133.

Annexure 22**:** Copy of Trust Account Receipt (TA 671855) dated 24 May 2011.

1. On 24 May 2011, $15,200 was paid from Hardys Lawyers' trust account for Ms McDonald's into its office account (by cheque 5713). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 30 August 2011, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $12,000, to interim professional costs for the period 18 May 2011 to 30 August 2011.

Annexure 23**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 30 August 2011.

1. On 30 August 2011, Hardys Lawyers also issued a "Statement of Account and Notice of Withdrawal of Trust Money", noting that -
   • as at 17 May 2011, $5,200.00 was outstanding;
   • $15,200.00 was received on 24 May 2011; and
   • following the Memorandum of costs and disbursements dated 30 August 2011, the amount outstanding was $2,000.00.

The Statement of Account does not record that $15,200.00 had been paid into the office account on 24 May 2011.

Annexure 24**:** Copy of Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 30 August 2011.

1. On 12 September 2011, a Trust Account Receipt (TA 671916) was completed in relation to $10,000.00 paid by Ms McDonald by EFT, being for "payment of account" in Matter No 2010 0133.

Annexure 25**:** Copy of Hardys Law Practice Trust Account Receipt (TA 671916) dated 12 September 2011.

1. On 13 September 2011, $10,000 was paid from Hardys Lawyers' trust account for Ms McDonald into "HOA", its office account (by cheque 5772). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013

1. On 30 November 2011, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $6,685.89, to interim professional costs for the period 5 September 2011 to 29 November 2011.

Annexure 26**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 30 November 2011.

1. On 30 November 2011, Hardys Lawyers also issued a "Statement of Account and Notice of Withdrawal of Trust Money", noting that -
   • as at 30 August 2011, $2,000.00 was outstanding;
   • $10,000.00 was received on 12 September 2011; and
   • following the Memorandum of costs and disbursements dated 30 August 2011, the balance in trust was $1,314.11.

The Statement of Account dated 30 November 2011 does not record that $10,000.00 had been paid into the office account on 13 September 2011.

Annexure 27**:** Copy of Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 30 November 2011.

1. On 5 January 2012, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $5,500.00, to:

The Memorandum of costs and disbursements was not signed and did not contain any address of the client.

Annexure 28**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 5 January 2012.

1. On 13 January 2012, a Trust Account Receipt (TA 836047) was completed in relation to $5,500.00 paid by Ms McDonald by EFT being for "payment of account" in Matter No 2010 0133.

Annexure 29**:** Copy of Hardys Law Practice Trust Account Receipt (TA 836047) dated 13 January 2012.

1. On 13 January 2012, $5,500.00 was paid from Hardys Lawyers' trust account for Ms McDonald into "HOA", its office account (by cheque 5886). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 23 February 2012, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $6,814.11, to interim professional costs for the period 10 January 2012 to 23 February 2012.

Annexure 30**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 23 February 2012.

1. On 23 February 2012, Hardys Lawyers also issued a "Statement of Account and Notice of Withdrawal of Trust Money", noting that -
   • as at 30 November 2011, $1,314.11 was outstanding;
   • $5,500.00 was received on 13 January 2012;
   • following the Memorandum of costs and disbursements dated 23 February 2012, the amount due and payable was "$NIL".

The Statement of Account dated 23 February 2012 does not record:

• the Memorandum of costs and disbursements dated 5 January 2012; or
• that $5,500.00 had been paid into the office account on 13 January 2012

Annexure 31**:** Copy of Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 23 February 2012.

1. On 9 March 2012, a Trust Account Receipt (TA 836093) was completed in relation to $8,800.00 paid by Ms McDonald by BFT being for "on account of costs" in Matter No 2010 0133.

Annexure 32**:** Copy of Hardys Law Practice Trust Account Receipt dated 9 March 2012.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 12 March 2012, $8,800.00 was paid from Hardys Lawyers' trust account for Ms McDonald into "HOA", its office account (by EFT 21). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter no. 20100133) dated 25 February 2013.

1. On 27 April 2012, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $6,400.00, to:

The Memorandum of costs and disbursements was not signed and did not contain any address of the client.

Annexure 33: Copy of Hardys Lawyers Memorandum of costs and disbursements dated 27 April 2012.

1. On 1 May 2012, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2010 0133 for $12,800.00, to interim professional costs for the period 27 February 2012 to 30 April 2012.

Annexure 34**:** Hardys Lawyers Memorandum of costs and disbursements dated 1 May 2012.

1. On 1 May 2012, Hardys Lawyers also issued a "Statement of Account and Notice of Withdrawal of Trust Money", noting that -
   • on 9 March 2012, $8,800.00 was received; and
   • following the Memorandum of costs and disbursements dated 1 May 2012 for $12,800.00, the amount due and payable was $4,000.00.

The Statement of Account dated 1 May 2012 does not refer to -

• the Memorandum of costs and disbursements dated 27 April 2012; or
• the transfer of $8,800.00 into the office account on 12 March 2012.

Annexure 35**:** Hardys Lawyers Statement of Account and Notice of Withdrawal of Trust Money dated 1 May 2012.

1. On 8 May 2012, a Trust Account Receipt (TA 836143) was completed in relation to $6,400.00 paid by Ms McDonald by EFT being for "payment of account" in Matter No 2010 0133.

Annexure 36**:** Copy of Hardys Law Practice Trust Account Receipt (TA 836143) dated 8 May 2012.

1. On 8 May 2012, $6,400.00 was paid from Hardys Lawyers' trust account for Ms McDonald into "HOA", its office account (by EFT 46). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (matter no. 20100133) dated 25 February 2013.

1. On 19 June 2012, a Trust Account Receipt (TA 829608) was completed in relation to $2,000.00 paid by Ms McDonald by EFT being for "payment of account" in Matter No 2010 0133.

Annexure 37**:** Copy of Hardys Lawyers Trust Account Receipt (TA 829608) dated 19 June 2012.

1. On 21 June 2012, $2,000.00 was paid from Hardys Lawyers' trust account for Ms McDonald into "HOA", its office account (by EFT 81). After the transfer to the office account, the balance held on trust for Ms McDonald was zero.

Annexure 8: Copy of Hardys Trust Transaction Report (for matter: 20100133) dated 25 February 2013.

1. The "Wip Transaction Report" for the matter 2010 0133 and the "Debtors Transaction Report" for the matter 2010 0133 did not include the Memoranda of costs and disbursements of the following dates, being those that included detail of the attendances and work completed:
   • 12 October 2010;
   • 16 March 2011;
   • 17 May 2011;
   • 30 August 2011;
   • 30 November 2011;
   • 23 February 2012; and
   • 1 May 2012.

Annexure 38**:** Copy of Hardys Wip Transaction Report (for matter no. 20100133) dated 27 February 2013.

Annexure 39**:** Copy of Hardys Debtors Transaction Report (for matter no. 20100133) dated 27 February 2013.

1. The "Wip Transaction Report" for the matter 2010 0133 and the "Debtors Transaction Report" for the matter 2010 0133 included the Memoranda of costs and disbursements, of the following dates, those without any or (in the case of the Memoranda of costs and disbursements dated 16 June 2010) with very limited detail of the attendances and which were not signed -
   • 16 June 2010;
   • 18 June 2010;
   • 21 October 2010;
   • 21 March 2011;
   • 16 May 2011;
   • 5 January 2012; and
   • 27 April 2012.

Annexure 38: Copy of Hardys Wip Transaction Report (for matter no. 20100133) dated 27 February 2013.

Annexure 39: Copy of Hardys Debtors Transaction Report (for matter no. 20100133) dated 27 February 2013.

1. In or around May 2011, Hardys Lawyers agreed to act for Graeme and Christine Daffy (Mr and Mrs Daffy) in relation to a dispute with Brenjoel Pty Ltd.
2. On 21 April 2011, Hardys Lawyers issued a "Memorandum of costs and disbursements" in relation to File No 2005 0222, "Re: Sale" for $10,000.00, to:

Our professional costs and charges of and incidental to the matter:

The Memorandum of costs and disbursements dated 21 April 2011 was not signed.

Annexure 40**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 21 April 2011.

1. Mrs Daffy did not receive the Memorandum of costs and disbursements dated 21 April 2011.
2. In May 2011, Mr and Mrs Daffy transferred $10,000 to Hardys Lawyers' bank account in relation to the dispute with Brenjoel Pty Ltd as follows -

1. $4,000.00 on 2 May 2011; 2. $4,000.00 on 3 May 2011; and

Annexure 41**:** Copy 17-page letter sent from Strongman & Crouch solicitors to the Applicant dated 31 October 2013.

1. No trust receipts were issued in relation to any of the payments listed in paragraph 62.
2. On 7 December 2011, Mr and Mrs Daffy wrote a cheque to Hardys Lawyers for $6,000.00 (cheque number 516). No trust account receipt was issued for that payment.

Annexure 42**:** Copy of Hardys Lawyers Statement of Account for Mr and Mrs Daffy (RE: Brenjoel Pty Ltd) dated 26 September 2012.

1. During the preparation of the matter, Mr and Mrs Daffy paid a number of disbursements directly, namely:

1. $338.00 to the Federal Magistrates' Court, on 7 December 2011; 2. $1,700.00 to Greens' List (for Mr J DeBaco), on 1 March; and

1. $1,200.00 to Greens' List (for Mr J DeBaco), on 21 4 May 2012.

Annexure 43**:** Hardys Lawyers File Memo dated 28 September 2012.

Annexure 44**:** Greens List Tax Invoice for Mr. D'Abaco dated 5 March 2012.

1. On 18 July 2012, Hardys Lawyers paid $2,200.00 to Green's List, being the fees of Mr J McKenna.

Annexure 45**:** Copy of Hardys Transaction Reconciliation (for matter no. 20110106) dated 27 February 2013.

Annexure 46**:** Copy of Hardys Trust Transaction Report (for matter no. 20110106) dated 25 February 2013.

1. On 23 August 2012, a Trust Account Receipt (TA 829686) was completed in relation to $18,830.00 paid by "Brenjoel Pty Ltd" by Cheque being for "Settlement" in Matter No 2011 0106.

Annexure 47**:** Trust Account Receipt (TA 829686) dated 23 August 8 May 2012.

1. On 23 August 2012, $8,800.00 was transferred from Hardys Lawyers' trust account for Mr and Mrs Daffy into "HOA", the office account (by EFT 134).

Annexure 45: Copy of Hardys Transaction Reconciliation (for matter no. 20110106) dated 27 February 2013.

Annexure 46: Copy of Hardys Trust Transaction Report (for matter no. 20110106) dated 25 February 2013.

1. On 24 September 2012, $2,043.93 was transferred from Hardys Lawyers' trust account for Mr and Mrs Daffy into "HOA", the office account (by EFT 152).

Annexure 45: Copy of Hardys Transaction Reconciliation (for matter no. 20110106) dated 27 February 2013.

Annexure 46: Copy of Hardys Trust Transaction Report (for matter no. 20110106) dated 25 February 2013.

1. On 25 September 2012, a "Memorandum of costs and disbursements" in relation to File No. 2011 0106 for $22,000.00, to professional costs for the period 19 April 2011 to 1 August 2012 was prepared. It included significant detail about each of the attendances to which it related.

Annexure 48**:** Copy of Hardys Lawyers Memorandum of costs and disbursements dated 25 September 2015.

1. On 25 September 2012, a list of "Disbursements" was drafted, including the following items:

1. Barristers Fee (20/6/11) Joseph D'abaco: $2,000.00; 2. Company search (18/8/11): $17.93;

1. Federal Magistrates' Court (23/8/11): $363.60; and 2. Barristers Fee (25/8/11) Joseph D'abaco: $2,400.

Annexure 49**:** Copy of Hardys Lawyers List of Disbursements for Mr G & Mrs C Daffy dated 25 September 2012.

1. On 26 September 2012, Hardys Lawyers issued a Statement of Account covering the period 2 May 2011 to 23 August 2012 in relation to File 2011 0106. The Statement of Account does not refer to the Memorandum of costs and disbursements dated 21 April 2012.

Annexure 42: Copy of Hardys Lawyers Statement of Account for Mr and Mrs Daffy (RE: Brenjoel Pty Ltd) dated 26 September 2012

1. On 25 September 2012, Hardys Lawyers wrote to Mr and Mrs Daffy, enclosing various documents including:

1. the memorandum of costs and disbursements dated 25 September 2012; 2. the document containing a list of disbursements, totalling $4,843.93 (in relation to Matter No 2011 0106);

1. the statement of account dated 26 September 2012; and

Annexure 50**:** Copy of letter sent from Hardys Lawyers to Mr and Mrs Daffy dated 25 September 2012.

1. On 1 October 2012, Mr and Mrs Daffy wrote to the Respondent asking to have the costs reviewed by the Taxing Master, and for a copy of two documents.

Annexure 51**:** Copy of email sent from Mr and Mrs Daffy to the Respondent dated 1 October 2012.

1. The Respondent did not reply to that request or provide the documents requested in Mr and Mrs Daffy's email of 1 October 2012.

1. In early 2011, Loretta Hornsby (Ms Hornsby) engaged the Respondent to act on her behalf in relation to a property dispute with her daughter.
2. The Respondent advised Ms Hornsby orally that the total costs for the matter would be $20,000.00.
3. Ms Hornsby did not receive any written retainer agreement at that time, or at any time during the retainer.
4. The Respondent requested that Ms Hornsby place $10,000.00 in trust by way of a retainer.
5. On 13 April 2011, Ms Hornsby paid $10,000.00 to Hardys Lawyers.

Annexure 52**:** Copies of National Australia Bank cheque butts in the amounts of $10,000.00 (cheque no. 000281) and $5,500.00 (cheque no. 000310).

Annexure 53**:** Copy of bank statement for the National Australia Bank National Retirement Account of Ms Hornsby for the period 16 February 2011 to 29 July 2011.

1. The Respondent did not provide Ms Hornsby with any receipt or any invoice in relation to the $10,000.00 she paid on 13 April 2011.
2. No work was undertaken by the Respondent on behalf of Ms Hornsby between May 2011 and October 2011.
3. The Respondent had no further communication with Ms Hornsby until October 2011, when a writ was received from her daughter.
4. On 2 April 2012, the County Court made Orders in Chambers based on signed minutes of consent orders in relation to the proceedings commenced on the writ. Ms Hornsby was not provided with a copy of the Orders made by the Court.
5. On 16 March 2012, Ms Hornsby paid $5,500.00 to Hardys Lawyers into its trust account.

Annexure 52: Copies of National Australia Bank cheque butts in the amounts of $10,000.00 (cheque no. 000281) and $5,500.00 (cheque no. 000310).

Annexure 54**:** Copy of bank statement for the National Australia Bank National Retirement Account of Ms Hornsby for the period 1 February 2012 to 31 July 2012.

1. The Respondent did not provide Ms Hornsby with any receipt or any invoice in relation to the $5,500.00 she paid into its trust account on 16 March 2012.
2. On 11 May 2012, Ms Hornsby paid $10,000.00 to Hardys Lawyers into its trust account.

Annexure 54: Copy of bank statement for the National Australia Bank National Retirement Account of Ms Hornsby for the period 1 February 2012 to 31 July 2012.

Annexure 55**:** Copy of National Australia Bank cheque butt in the amount of $10,000.00 (cheque no. 000314) dated 11 May 2012.

1. The Respondent did not provide Ms Hornsby with any receipt or any invoice in relation to the $10,000.00 she paid on 11 May 2012.
2. Prior to 6 June 2012, Hardys Lawyers drafted an Affidavit of Documents for Ms Hornsby. Ms Hornsby collated the documents and totalled the amounts for inclusion in her Affidavit of Documents herself.
3. On 11 June 2012, Ms Hornsby paid $10,000.00 to Hardys Lawyers into its trust account.

Annexure 54: Copy of bank statement for the National Australia Bank National Retirement Account of Ms Hornsby for the period 1 February 2012 to 31 July 2012.

Annexure 56**:** Copy of National Australia Bank cheque butt in the amount of $10,000.00 (cheque no. 000316) dated 11 June 2012.

1. The Respondent did not provide Ms Hornsby with any receipt or any invoice in relation to the $10,000.00 she paid into its trust account.
2. On 25 June 2012, Ms Hornsby wrote to the Respondent requesting a "detailed invoice outlining [the Respondent's] charges to date and a receipt for the $35,000.00" she had already paid.

Annexure 57**:** Copy of letter sent from Ms Hornsby to the Respondent dated 25 June 2012.

1. The Respondent did not provide Ms Hornsby with any detailed invoice or receipt as requested in her letter dated 25 June 2012.
2. On 6 August 2012, Ms Hornsby wrote to the Respondent and advised that she was terminating the Respondent's retainer. In that letter, Ms Hornsby also requested a tax invoice, a trust account statement and an itemised account.

Annexure 58**:** Copy of letter sent from Ms Hornsby to the Respondent dated 6 August 2012.

1. The Respondent did not provide Ms Hornsby with any tax invoice, trust account statement or itemised account as requested in her letter dated 6 August 2012.

1. On 12 November 2012, Ms Grancourt (a former employee of Hardys Lawyers) made a complaint about the Respondent's conduct to the Applicant in relation to five different clients, including Ms McDonald and Mr and Mrs Daffy (the Grancourt Complaint).

Annexure 59**:** Copy of Mr Grancourt's complaint to the Applicant dated 28 November 2012.

1. In February 2013, the Law Institute of Victoria (the LIV) conducted a trust inspection at Hardys Lawyers. On 21 March 2013 the LIV published its Investigation Report to Law Practice.

Annexure 60**:** Copy Law Institute of Victoria Investigation Report into Hardys, dated 21 March 2013.

1. On 30 April 2013, the Respondent provided his response to the LIV's Investigation Report dated 21 March 2013.

Annexure 61**:** Copy letter from the Respondent to the LIV dated 30 April 2013.

1. On 26 August 2013, the Grancourt Complaint, together with a large number of documents that had been collected by the Applicant, was published to the Respondent.

Annexure 62**:** Copy letter from the Applicant to the Respondent dated 29 August 2013 (and attachments).

1. On 31 October 2013, Strongman & Crouch Solicitors acting on behalf of the Respondent replied to the allegations in the Grancourt complaint in two letters: the first 17 pages long, the second 3 pages long.

Annexure 41: Copy 17-page letter sent from Strongman & Crouch solicitors to the Applicant dated 31 October 2013.

Annexure 63**:** Copy 3-page letter sent from Strongman & Crouch solicitors to the Applicant dated 31 October 2013.

1. On 26 March 2013, Ms Hornsby made a complaint about the Respondent's conduct to the Applicant (the Hornsby Complaint). Ms Hornsby asserted that she had not received any tax invoices or costs disclosure from the Respondent or Hardys Lawyers.

Annexure 64**:** Copy of Ms Hornsby's complaint to the Applicant dated 26 March 2013.

1. On 10 May 2013, the Hornsby Complaint was published to the Respondent.

Annexure 65**:** Copy of letter sent from the Applicant to the Respondent dated 10 May 2013.

1. On 20 June 2013, the Respondent replied to the Hornsby Complaint and provided -
   1. four unsigned invoices which the Respondent said related to the monies paid by Ms Hornsby (the unsigned invoices), for the following amounts:
      1. dated 7 April 2011 for $10,000.00;
      2. dated 9 March 2012 for $5,500.00;
      3. dated 11 May 2012 for $10,000.00;
      4. dated 6 June 2012 for $10,000.00; and
   2. a copy of Hardys Lawyers' standard costs agreement, which was not signed or addressed.

Annexure 66**:** Copy of letter sent from the Respondent to the Applicant dated 20 June 2013.

1. On 7 February 2014, the Applicant wrote to the Respondent requesting a copy of the signed costs agreement and any trust Transaction Report and any other accounting reports that disclose the monies received from Ms Hornsby, including any receipts for payment.

Annexure 67**:** Copy of letter sent from the Applicant to the Respondent dated 7 February 2014.

1. On 27 March 2014, Strongman & Crouch replied to the Applicant's letter of 7 February 2014 on behalf of the Respondent, and again, enclosed a copy of the unsigned invoices. The response also indicated that the Respondent could not provide a copy of a signed costs agreement because he believed it was on the correspondence file that had been "mislaid". The Respondent did not provide any other documents, including accounting reports and receipts.

Annexure 68**:** Copy of letter sent from Strongman & Crouch solicitors to the Applicant dated 27 March 2014.

1. On 16 April 2015, the Applicant wrote to the Respondent and offered the Respondent a final opportunity to put forward any further material and submissions prior to the Applicant's office making a decision pursuant to section 4.4.13 of the Act, in relation to his representation of Ms McDonald, Mr and Mrs Daffy and Ms Hornsby (the Murray letter).

Annexure 69**:** Copy of letter sent from the Applicant to the Respondent dated 16 April 2015.

1. On 15 July 2015, Terrence O'Brien (Mr O'Brien), representing the Respondent, wrote to the Applicant in response to the Murray letter.

Annexure 70**:** Copy of letter sent from the Respondent to the Applicant dated 15 July 2015.

1. Charges 1, 4, 7 and 12 are charges of misconduct at common law.

Misconduct in a professional capacity, often described as misconduct at common law, has been defined consistently for many years as conduct in a professional capacity which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where the definition was formulated in a case involving a medical practitioner; Re a Solicitor: ex parte The Law Society [1912] 1 KB 302 where the definition was adopted in a case involving a solicitor; Myers v Elman [1940] AC 282 where the definition was approved by the House of Lords and Grahame v AG of Fiji [1936] 2 All ER 992 where the definition was approved by the Privy Council; and Re a Solicitor [1960] VicRp 96; [1960] VR 617 where the definition was applied in Victoria.

1. The balance of the charges are charges of statutory misconduct.

CHARGES IN RELATION TO THE RESPONDENT'S REPRESENTATION OF MS MCDONALD

1. Professional misconduct within the meaning of section 4.4.3(1) of the Act, in that the respondent created, or caused to be created, Memoranda of costs and disbursements bearing the following dates, each of which was false:

1. 21 March 2011, 2. 16 May 2011, 3. 5 January 2012, and 4. 27 April 2012,

which is conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful, and thereby constitutes misconduct at common law.

The particulars relied upon are those set out in paragraphs [14], [21], [28], [31], [42] and [49] above.

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that by transferring or causing the transfer of funds from the trust account to the office account on 28 June 2010, 28 October 2010, 30 March 2011, 13 January 2012, 12 March 2012 and 8 May 2012 the respondent:
   1. caused those funds to be transferred not in accordance with a direction of Ms McDonald in breach of section 3.3.14 of the Act; and
   2. caused or created deficiencies in the trust account of Ms McDonald in breach of section 3.3.21 of the Act.

The particulars relied upon are those set out in paragraphs [16], [23], [30], [48] and [53] above.

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that on or about 21 June 2012, the respondent created a deficiency of $4,400 in the trust account of Ms McDonald because:
   1. the total value of the work conducted for Ms McDonald was $72,640.00 (as set out in the detailed bills); and
   2. Ms McDonald paid a total of $77,140.00,

The particulars relied upon are those set out in paragraphs [9], [15], [17], [19], [22], [24], [26], [29], [32], [34], [36], [38], [40], [43], [45], [47], [50], [52] and [54] above.

CHARGES IN RELATION TO THE RESPONDENT'S REPRESENTATION OF MR AND MRS DAFFY

1. Professional misconduct within the meaning of section 4.4.3(1) of the Act, in that the respondent created or was responsible for creating the Memorandum of costs and disbursements dated 21 April 2011 which was false, which is conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable and thereby constitutes misconduct at common law.

The particulars relied upon are those set out in paragraphs [60] and [61] above.

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that by transferring or causing the transfer of funds from the trust account to the office account on 2 May 2011, 3 May 2011 and 5 May 2011 the respondent:
   1. caused those funds to be transferred not in accordance with a direction of Mr and Mrs Daffy in breach of section 3.3.14 of the Act; and
   2. caused or created deficiencies in the trust account of Mr and Mrs Daffy in breach of section 3.3.21 of the Act.

The particulars relied upon are those set out in paragraphs [61] - [63] above.

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that on or around 7 December 2011, the respondent failed to deposit $6,000.00, being trust monies, into the trust account and thereby created a deficit in the trust account in breach of section 3.3.21 of the Act.

The particulars relied upon are those set out in paragraph [64] above.

1. Professional misconduct within the meaning of section 4.4.3(1) of the Act, in that during the course of an investigation into the respondent's professional conduct, on or about 31 October 2013 the respondent asserted to the Applicant that the Memorandum of costs and disbursements dated 21 April 2011 "was signed and sent to [Mr and Mrs Daffy]", which assertion is false and was intended to mislead, which is:
   1. in breach of your common law duty of honesty and candour to the Applicant; and
   2. conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful, and

The particulars relied upon are those set out in paragraph [101] above.

CHARGES IN RELATION TO THE RESPONDENT'S REPRESENTATION OF MS HORNSBY

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that in or around April 2011, or as soon as practicable thereafter, or at all, the respondent failed to provide a costs disclosure statement to Ms Hornsby as required by sections 3.4.9 and 3.4.11 of the Act.

The particulars relied upon are those set out in paragraphs [77] - [79] and [106] above.

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act in that, on or about 13 May 2011, 16 March 2012, 11 May 2012 and 11 June 2012, the respondent failed to make out trust receipts for the trust money deposited by Ms Hornsby in contravention of Regulation 3.3.9 of the Legal Profession Regulations 2005.

The particulars relied upon are those set out in paragraphs [81], [82], [86] - [89], [91] and [92] above.

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that by transferring or causing the transfer of funds from the trust account to the office account on 7 April 2011, 9 March 2012, 11 May 2012 and 6 June 2012, the respondent:
   1. caused those funds to be transferred not in accordance with a direction of Ms Hornsby in breach of section 3.3.14 of the Act; and
   2. caused or created deficiencies in the trust account of Ms Hornsby in breach of section 3.3.21 of the Act.

The particulars relied upon are those set out in paragraphs [81], [82], [86] - [89], [91] - [93] and [104] - [106] above.

1. You are guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act, in that you failed to comply with Ms Hornsby's requests on 25 June 2012 and 6 August 2012 for an itemised bill within 21 days, or at all, in breach of section 3.4.36 of the Act.

The particulars relied upon are those set out in paragraphs [93] - [96] above.

1. Professional misconduct within the meaning of section 4.4.3(1) of the Act, in that the respondent created, or caused to be created, Memoranda of costs and disbursements bearing the following dates, each of which was false or intended to mislead:

1. conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful, and

The particulars relied upon are those set out in paragraph [104] above.

1. Professional misconduct within the meaning of section 4.4.4(a) of the Act, in that the respondent failed to comply within a reasonable time, or any time, with the Applicant's request on 7 February 2014 for account reports in relation to Ms Hornsby, which failure was in breach of section 4.4.11 of the Act.

The particulars relied upon are those set out in paragraphs [105] and [106] above.

Respondent represented by Mr T. Grundy (by telephone)

1. The directions hearings involved, inter alia, the question of Mr Hession's health. Hearing dates were adjourned and orders made that medical certificate(s) would be required if further adjournments were to be granted.

1. On 3 March 2016, an email was received by the Tribunal from Mr Terence Grundy, an Australian Legal Practitioner, who advised:

1. In the email, Mr Grundy requested an adjournment of the hearing scheduled for 29 March 2016 on the grounds of Mr Hession's ill health. Attached to the email was a copy of a letter dated 26 February 2016 from Dr P. Brian Gamboni, who was said to be Mr Hession's medical practitioner. It appears that Dr Gamboni is a general medical practitioner. The letter reads as follows:

Robert Hession is suffering from Leukaemia and heart failure and is unfit to attend court for the next 12 months.

1. On 10 March 2016, Senior Member Smithers, in chambers, made the following observations and orders:

This report is not a sufficient basis for Mr Hession's matter to be put off for such a long period.

The respondent has previously been made aware that information in sufficient detail as to his health condition and prognosis is required to be provided. It has been suggested Mr Hession is very ill, and that there is no concern about the protection of the public in this case. But the Tribunal requires information which verifies this.

For the matter to be adjourned, the Tribunal requires a more detailed medical report from a specialist doctor, which provides a proper and sufficient basis on which the Tribunal would be justified in adjourning this matter further, for a particular period.

Alternatively, the Tribunal could hear evidence from Dr Gamboni in person, or an appropriate specialist.

1. The matter remains listed for a two day hearing commencing on 29 March 2016 at 55 King Street Melbourne.
2. Order 2 of 19 February 2016 remains in place.
3. If the respondent wishes to have this matter adjourned on the grounds of ill health, he is required to file and serve by 4 pm on 18 March 2016, further medical certificate(s) which provide proper and sufficient information as to Mr Hession's medical situation, so that this matter can be listed for hearing on the first date when it is anticipated the respondent may be able to provide instructions and appear.
4. Liberty to apply.
5. No further medical material or evidence was received by the Tribunal. A letter from Mr Grundy, dated 23 March 2016, advised the Tribunal that he had received the following instructions from Mr Hession:

That he was 'unable' to obtain medical certificates despite receiving regular and ongoing treatment from several practitioners.

1. Mr Grundy further advised that Mr Hession would not be appearing at the Tribunal for the hearing and that he, Mr Grundy, had no further instructions to appear. Mr Grundy confirmed that Mr Hession would not be represented at the hearing either by Mr Grundy's firm or counsel.
2. No explanation was given as to why Mr Hession or his legal representative were unable to obtain medical certificates or why Mr Hession would not be represented at the hearing. The Tribunal was left with no more medical information beyond the note from Dr Gamboni, which in the view of the Tribunal both as constituted by Senior Member Smithers on 10 March 2016 and as presently constituted by myself was manifestly inadequate for the purpose of justifying adjournment. The Commissioner pressed for the hearing to proceed. The Tribunal was left with no alternative other than to proceed with the hearing.

1. The matter proceeded to hearing on 29 March 2016, 11 April 2016 and 18 July 2016 with no appearance by or on behalf of Mr Hession.
2. On 29 March 2016, leave was granted for the applicant to amend the application for orders and the applicant was ordered to file and serve the amended application.
3. On 11 April 2016 evidence was received from Debra McDonald, Christine Daffy and Loretta Hornsby and charge 12 was amended with an order that the applicant was to serve the amended charge and an order that if the respondent wished to be heard in relation to the amended charge, he was to notify the Tribunal. No notification was received.
4. On 18 July 2016, a further hearing took place in order to afford Mr Hession the opportunity to be heard in relation to the amended charge. There was no appearance by or on behalf of Mr Hession.
5. Throughout, Mr Grundy has forwarded orders and notices to Mr Hession and has kept the Tribunal informed of his actions.
6. Mr Hession was given every opportunity to provide medical evidence as to his state of health but provided nothing other than Dr Gambino's short letter. The Tribunal was left with no alternative than to proceed with hearing the matter.
7. Having not received any evidence by or on behalf of the respondent, I have taken into account material provided by the respondent to the applicant during the course of the applicant's investigation.

1. Charge 1 alleges the creation of certain false bills.

Charge 2 relates to the transfer of funds on the basis of those false bills.

Charge 3 alleges a defalcation in the trust account. I accept the contents of Ms McDonald's affidavit as evidence of the matters contained therein. 2. An affidavit affirmed by Debra McDonald on 24 November 2015 was adopted by Ms McDonald when she gave evidence to the Tribunal on 11 April 2016. Ms McDonald was a client of the respondent. I accept the contents of Ms McDonald's affidavit as evidence of the matters contained therein. 3. The false bills are bills which were are unsigned and which were never given to the client. Their sole purpose was to seek to justify the transfer of funds from Mr Hession's trust account to his office account so that he may have access to the funds prior to work being carried out and proper bills delivered to his client. 4. No allegation is made by the applicant that Ms McDonald was overcharged for work done on her behalf. During her retainer of the respondent, Ms McDonald paid, by instalments, a total of $77,140.00. Payments were paid into trust and Ms McDonald was issued with trust account receipts. Detailed bills, set out in paragraph 56 of the application, reflecting work done, were sent to Ms McDonald. The false bills are bills which were unsigned and which were never given to the client. Their sole purpose was to seek to justify the transfer of funds from Mr Hession's trust account to his office account so that he may have access to the funds prior to work being carried out and proper bills delivered to his client.

1. A further series of bills is set out in paragraph 57 of the allegations.
2. Ms McDonald's evidence is that she has no recollection of receiving, nor has she been able to locate copies in her personal records, of the following documents (quoting from her affidavit):

34.1 an unsigned Memorandum of Costs and Disbursements dated 18 June 2010 for $8,800 with my name, but without my address;

34.2 an unsigned Memorandum of Costs and Disbursements dated 21 October 2010 for $9,400 with my name, but without any address;

34.3 an unsigned Memorandum of Costs and Disbursements dated 21 March 2011 for $8,800 with my name, but without my address;

34.4 an unsigned Memorandum of Costs and Disbursements dated 16 May 2011 for $15,200 with my name, with my name and address;

34.5 an unsigned Memorandum of Costs and Disbursements dated 5 January 2012 for $5,500.00 with my name, but without my address; and

34.6 an unsigned Memorandum of Costs and Disbursements dated 27 April 2012 for $6,400.00 with my name, but without my address.

1. I am satisfied that the detailed bills cover the work done on behalf of Ms McDonald. The unsigned bills are another matter. Apart from not being signed and not containing (with one exception) Ms McDonald's address, I am satisfied that they were not reviewed by Ms McDonald. They contain no details of work done or any disbursements and they are not otherwise reflected in any statement provided to Ms McDonald. Most tellingly, they are dated shortly before dates on which Ms McDonald made instalment payments which were paid into the respondent's trust account.
2. The standard of proof of misconduct is the normal civil standard of a balance of probabilities, but it is necessary to take into account matters of the kind mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The following passages from Briginshaw's Case are relevant:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality." (@ 361.)

"The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." (@ 362.)

1. I am satisfied to the standard required by Bringinshaw that each of the unsigned Memoranda of Costs and Disbursements referred to was false and that the creation of these documents is conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful and thereby constitutes misconduct at common law.
2. Charge 1 is proved and the respondent is found guilty of misconduct at common law.

1. I am satisfied from the documents accompanying the application that funds were transferred from the respondent's trust account on the basis of the unsigned bills and that such transfers were premature and without basis either for work having been done or by instruction from Ms McDonald. The unsigned bills were no more than an attempt to cover the payment from trust of funds received from Ms McDonald shortly after instalments were received from her.
2. I find that the early transfer of funds from the respondent's trust account on the basis of the unsigned bills, caused those funds to be transferred not in accordance with a direction of Ms McDonald in breach of section 3.3.14 of the Act and caused or created deficiencies in the trust account of Ms McDonald in breach of section 3.3.21 of the Act.
3. I further find that this constitutes professional misconduct within the meaning of section 4.4.4(a) of the Act.
4. Charge 2 is proved and the respondent is found guilty of professional misconduct.

1. I am satisfied that Ms McDonald paid $77,140.00 and that the signed bills come to a total of $72,640.00. Having found that the unsigned bills are false and do not reflect work done, there remains a deficiency in the trust account of $4,400.00. Having regard to the circumstances, this must be regarded as a defalcation.
2. Charge 3 is proved and the respondent is found guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act.

1. Charge 4 alleges the creation of certain false bills.

Charge 5 relates to the transfer of funds from the trust account to the office account without proper authority.

Charge 6 alleges a defalcation in the trust account. 2. An affidavit affirmed by Christine Mary Daffy on 26 November 2015 was adopted by Ms Daffy when she gave evidence to the Tribunal on 11 April 2016. Ms Daffy and her husband (the Daffys) were clients of the respondent. 3. On 2 May 2011 the Daffys paid $4,000 to the respondent following a request from the respondent to pay $10,000.00 on account of work to be done for them. On 3 May 2011 the Daffys paid a further $4,000.00. On 5 May 2011 the Daffys paid a further $2,000.00. Trust account receipts were not provided in relation to these payments.

On 8 December 2011 the Daffys made a further payment to the respondent in the sum of $6,000.00 believing it to be held in trust for work to be done. This payment was made at the request of the respondent. The Daffys received no receipt.

1. The Daffys also paid a Federal Magistrates' Court fee of $338.00 directly and provided two cheques payable to Greens List for counsel's fees to the respondent. These cheques were for $1,700.00 and $1,200.00.
2. On or around 25 September 2012 the Daffys received a letter from the respondent enclosing a memorandum of professional costs and charges, a statement of account and a trust account cheque in the sum of $28,126.07.
3. The Daffys questioned several aspects of the matter including costs but did not receive a response.

1. Ms Daffy was subsequently shown a number of documents by representatives of the applicant including an unsigned memorandum of costs and disbursements from Handy's Lawyers dated 21 April 2011 and a statement of disbursements form Handy's Lawyers dated 25 September 2012 stating that she had incurred a total of $4,843.93 disbursements. Ms Daffy's evidence is that she has no recollection of having received or seen these documents nor does she have any of them in her personal records.
2. It should be noted that the retainer of the respondent by the Daffys commenced some time in late April 2011 and that between 2 May 2011 and 5 May 2011, they had paid a total of $10,000 to the respondent pursuant to a request by the respondent to pay that sum. The request was made on or around 1 May 2011.
3. I am satisfied that the unsigned memorandum dated 21 April 2011 is false as it preceded the respondent's request for $10,000 on account, was dated at around the time of commencement of the retainer, was not signed, contained a different file number to a number on other documents contained no details of any work done, was not received by the Daffys and was not referred to in the statement of account received by the Daffys. Further the signed memorandum appears to include all work from the taking of instructions to finalisation.
4. I am satisfied that the unsigned memorandum dated 21 April 2011 was false and that creation of this document is conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful and thereby constitutes misconduct at common law.
5. Charge 4 is proved and the respondent is found guilty of misconduct at common law.

1. I am satisfied by the documents accompanying the application that funds were transferred from the respondent's trust account on the basis of the unsigned bill and that such transfers were premature and without basis either of work being done or by instruction from the Daffys. The unsigned bill was no more than an attempt to cover the payments from trust of funds received from the Daffys shortly after instalments were received from them.
2. I find that the early transfer of funds from the respondent's trust account on the basis of the unsigned bill caused those funds to be transferred not in accordance with a direction of the Daffys in breach of section 3.3.14 of the Act and caused or created deficiencies in the trust account of the Daffys in breach of section 3.3.21 of the Act.
3. I further find that this constitutes professional misconduct within the meaning of section 4.4.4(a) of the Act.
4. Charge 5 is proved and the respondent is found guilty of professional misconduct.

1. As previously stated, Ms Daffy's evidence was that on 8 December 2011 the Daffys made a payment of $6,000.00 to the respondent believing it to be held on trust for work to be done. This payment was made at the request of the respondent. No receipt was given.
2. Documents accompanying the application disclose no evidence that the $6,000.00 was paid into trust and no evidence of any basis for it to have been paid into the office account. Disbursements at the time were less than $6,000.00.
3. I am satisfied that on or around 7 December 2011 the respondent failed to deposit $6,000.00, being trust monies, into the trust account and thereby created a deficit in the trust account in breach of section 3.3.21 of the Act.
4. I further find that this constitutes professional misconduct within the meaning of section 4.4.4(a) of the Act.
5. Charge 6 is proved and the respondent is found guilty of professional misconduct.

1. During the course of the investigation by the applicant the respondent's responses to various allegations were given as an annexure to a letter dated 31 October 2013 to the applicant from Messrs Strongman & Crouch who were acting for the respondent at the time.
2. In respect to the allegation that concerned the $10,000.00 paid by the Daffys in May 2011, the respondent asserted that the invoice for $10,000.00 was signed and given to the clients. This does not accord with the evidence of Ms Daffy.
3. I am satisfied that the respondent's assertion to the applicant is false and that it follows that it was intended to mislead the applicant.
4. I am satisfied that such a false and misleading statement was made in breach of the respondent's common law duty of honesty and candour to the applicant and that it is conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful, and thereby constitutes misconduct at common law.
5. Charge 7 is proved and the respondent is found guilty of misconduct at common law.

Charges 8, 9, 10, 11, 12 and 13 'The Hornsby Charges'

1. Charge 8 alleges a failure to provide costs disclosure.

Charge 9 alleges failures to provide trust receipts.

Charge 10 alleges the failure to maintain monies in trust, resulting in deficiencies.

Charge 11 alleges a failure to provide an itemised bill within 21 days of the request.

Charge 12 alleges that during the course of the applicants' investigation the respondent created or caused to be created certain false documents.

Charge 13 alleges that during the course of the applicants' investigation the respondent failed to comply with a request pursuant to section 4.4.11 of the Act within a reasonable time.

1. An affidavit affirmed by Loretta Hazel Hornsby on 24 November 2015 was adopted by Ms Hornsby when she gave evidence to the Tribunal on 11 April 2016. Her evidence may be summarised as follows:
2. In early 2011 Ms Hornsby consulted and engaged the respondent in relation to a property dispute. At the time the respondent advised Ms Hornsby that he anticipated that the total costs for the matter would be approximately $20,000.00. At the request of the respondent, Ms Hornsby paid the sum of $10,000.00 to be held on trust. She received no receipt, any form of invoice or written acknowledgement for the payment.
3. Ms Hornsby received no written costs disclosure or agreement or any form of written retainer at the time of the retainer or at any time thereafter.
4. On 16 March 2012, Ms Hornsby paid a further $5,000.00 to the respondent.
5. On 11 May 2012, Ms Hornsby paid a further $10,000.00 to the respondent. This payment was pursuant to a request via telephone from the respondent.
6. In June 2012 Ms Hornsby attended a meeting with the respondent at which time the respondent pressed Ms Hornsby for a further payment of $10,000.00. On 11 June 2012, Ms Hornsby made a payment of $10,000 to the respondent.
7. Ms Hornsby received no receipts or accounts in relation to the payments made in March, May and June 2012.
8. She had by then paid a total of $35,000.00 to the respondent.
9. On 25 June 2012, Ms Hornsby wrote to the respondent requesting a detailed invoice setting out all fees and charges received to date. She also requested receipts for money paid.
10. Ms Hornsby did not receive the detailed invoice, or any invoice, and did not receive any receipts.
11. At some time prior to 2 August 2012 the respondent contacted Ms Hornsby by telephone and requested that she place a further $55,000 in trust.
12. On 2 August 2012, Ms Hornsby, in company with her son, Paul Newling, attended at the respondent's office to discuss the matter. Ms Hornsby requested that the respondent confirm his required costs in writing which he said he would do.
13. On 3 August 2012 Ms Hornsby received a letter from the respondent requesting that she place $55,000.00 in trust.
14. Ms Hornsby subsequently retained other legal representation and on 6 August 2012 wrote to the respondent advising that the retainer was terminated. In the letter Ms Hornsby requested a tax invoice, trust account statement and an itemised account covering her matter. She also requested that her files be made available for collection.
15. Subsequently, Ms Hornsby attended at the respondent's office to collect her files. Neither at this time nor at any time subsequently was she provided with any tax invoice, trust account statement or itemised account.

1. On the basis of Ms Hornsby's evidence I am satisfied that in or around April 2011, or as soon as practicable thereafter, or at all, the respondent failed to provide a costs disclosure to Ms Hornsby as required by sections 3.4.9 and 3.4.11 of the Act.
2. I am further satisfied that such failure constitutes professional misconduct within the meaning of section 4.4.4(a) of the Act.
3. Charge 8 is proved and the respondent is found guilty of professional misconduct.

1. On the basis of Ms Hornsby's evidence I am satisfied that on or about 13 May 2011, 16 March 2012, 11 May 2012 and 11 June 2012 the respondent failed to make out trust receipts for the trust money deposited by Ms Hornsby in contravention of Regulation 3.3.9 of the Legal Profession Regulations 2005.
2. I am further satisfied that such failures constitute professional misconduct within the meaning of section 4.4.4(a) of the Act.
3. Charge 9 is proved and the respondent is found guilty of professional misconduct.

1. I am satisfied from the documents accompanying the application that funds were transferred from the respondent's trust account to the office account on 7 April 2011, 9 March 2012, 11 May 2012 and 6 June 2012. I am further satisfied that these transfers were not in accordance with directions of Ms Hornsby and they were consequently in breach of section 3.3.14 of the Act.
2. I am further satisfied that these transfers created deficiencies in the trust account of Ms Hornsby in breach of section 3.3.21 of the Act.
3. Such breaches constitute professional misconduct within the meaning of section 4.4.4(a) of the Act.
4. Charge 10 is proved and the respondent is found guilty of professional misconduct.

1. On the basis of Ms Hornsby's evidence, I am satisfied that the respondent failed to comply with Ms Hornsby's requests on 25 June 2012 and 6 August 2012 for an itemised bill within 21 days, or at all, in breach of section 3.4.36 of the Act.
2. I am satisfied that such failures constitute professional misconduct within the meaning of section 4.4.4(a) of the Act.
3. Charge 11 is proved and the respondent is found guilty of professional misconduct.

1. During the course of the applicant's investigation into the complaint made by Ms Hornsby, the respondent replied to the complaint on 20 June 2013 and provided four unsigned invoices which the respondent said related to the monies paid by Ms Hornsby for the following amounts:
   • dated 7 April 2011 for $10,000.00;
   • dated 9 March 2012 for $5,500.00;
   • dated 11 May 2012 for $10,000.00; and
   • dated 9 June 2012 for $10,000.00.
2. On the basis of Ms Hornsby's evidence, I am satisfied that these documents were not received by Ms Hornsby. I am further satisfied that the respondent created, or caused to be created these unsigned memoranda of costs and disbursements as set out above each of which was false or intended to mislead.
3. I am satisfied that the creation of these documents is conduct that lawyers of good repute and competency would regard as dishonourable and disgraceful, and thereby constitutes misconduct at common law.
4. Charge 12 is proved and the respondent is found guilty of misconduct at common law.

1. On 7 February 2014, the applicant wrote to the respondent requesting a copy of the signed costs agreement and any trust Transaction Report and any other accounting reports that disclose the monies received from Ms Hornsby, including any receipts for payment.
2. On 27 March 2014, Strongman & Crouch replied to the applicant's letter of 7 February 2014 on behalf of the Respondent, and again, enclosed a copy of the unsigned invoices. The response also indicated that the respondent could not provide a copy of a signed costs agreement because he believed it was on the correspondence file that had been "mislaid". The respondent did not provide any other documents, including accounting reports and receipts.
3. On 16 April 2015, the applicant wrote to the respondent and offered the respondent a final opportunity to put forward any further material and submissions prior to the applicant's office making a decision pursuant to section 4.4.13 of the Act, in relation to his representation of Ms McDonald, Mr and Mrs Daffy and Ms Hornsby.
4. On 15 July 2015, Terrence O'Brien, representing the respondent, wrote to the applicant in response to the Murray letter.
5. The documents requested by the applicant were not provided.
6. I find that the respondent failed to comply within a reasonable time, or at any time, with the applicant's request on 7 February 2014 for account reports in relation to Ms Hornsby, which failure was in breach of section 4.4.11 of the Act.
7. I further find that such breach constitutes professional misconduct within the meaning of section 4.4.4(a) of the Act.
8. Charge 13 is proved and the respondent is found guilty of professional misconduct.

1. The principal registrar is directed to schedule a further hearing for the purpose of hearing submissions as to disposition. Allow one day.