Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 (12 March 2004)

Last Updated: 16 March 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 revised - 15/03/2004

FILE NUMBER(S):

40237/03

HEARING DATE(S): 06/02/04

JUDGMENT DATE: 12/03/2004

PARTIES:

Ross Garfield Barwick (Appellant)

Council of the Law Society of New South Wales (Respondent)

JUDGMENT OF: Ipp JA Tobias JA Stein AJA

LOWER COURT JURISDICTION: Administrative Decisions Tribunal Appeal Panel

LOWER COURT FILE NUMBER(S): 029023

LOWER COURT JUDICIAL OFFICER:

COUNSEL:

P Brereton SC (Appellant)

G C Lindsay SC (Respondent)

SOLICITORS:

Eakin McCaffery Cox (Appellant)

R J Collins (Respondent)

CATCHWORDS:

LEGAL PRACTITIONERS - Professional misconduct - Neglect, delay and incompetence in the administration of an estate - Misuse of trust account - Creation of contributory mortgage on title of property of the practitioner's sister as a device to obtain moneys - Money borrowed from clients of the firm of solicitors of which the practitioner was a partner - Misleading conduct towards beneficiary of the estate - Falsified documents placed on file - Misleading statements to the Law Society - Importance of trust moneys - Importance of integrity and candour in giving evidence - Use to be made of practitioner's credibility when testifying in disciplinary proceedings - Findings going outside the charge of misconduct - Importance of trust and confidence which clients place in their solicitors - Mitigating factors not sufficient to allow the practitioner to remain on the Roll - ADMINISTRATIVE LAW - Denial of natural justice by the Tribunal - Where the Tribunal made a finding adverse to the practitioner despite a concession made by the Law Society - Whether failure to give adequate reasons - Whether findings of Tribunal regarding credibility may be taken into account in determining the final order to be made - Findings going outside the charge of misconduct - Whether procedural unfairness means that decisions of the Tribunal and Appeal Panel should be set aside. D

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997, ss 7, 89(5), 112, 113(1), 113(2)(a), 113(2)(b), 114(1) & (2), 119(1), 120(1) & (2)

Legal Profession Act 1987, ss 61(1)(b), 62,167(2), Pt 10 Div 7

Legal Profession Regulation 1987, cl 27(2)

Legal Profession (Trust Accounts and Controlled Money) Regulation 1988, cl 32(1), cl 33

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40237/03

NSWADTAP 029023

IPP JA

TOBIAS JA

STEIN AJA

Friday 12 March 2004

ROSS GARFIELD BARWICK v COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

FACTS

On 1 December 1991, the appellant and another solicitor, Mr Dechnicz, formed a new law firm. They had previously been partners in other law firms. In March 1992, Mr Dechnicz was in severe financial difficulty. The appellant recognised that if Mr Dechnicz were to become bankrupt, their partnership would be dissolved. A scheme was formulated between the appellant and Mr Dechnicz in order to pay Mr Dechnicz's creditors.

The appellant and Mr Dechnicz withdrew $85,000 from the firm's trust account and purportedly lent the moneys to the appellant's sister (Mrs Roberts) on behalf of the clients whose money it was. Mrs Roberts then lent the money to the appellant, which was provided to Mr Dechnicz in order to pay his creditors. The money was never, in reality, paid to Mrs Roberts. Mrs Roberts was used as a means of transferring the trust moneys to Mr Dechnicz.

$38,000 of the $85,000 withdrawn from the trust account came from moneys belonging to the estate of the late Everil May Wilkinson. The appellant was the executor, trustee and solicitor of the estate. The will of the late Mrs Wilkinson did not authorise a loan such as that made to Mrs Roberts. The loan was not authorised by, or brought to the attention of, any beneficiary of the estate. The further $47,000 came from moneys in the firm's trust account belonging to two clients of Mr Dechnicz.

The purported loan to Mrs Roberts was secured by a contributory mortgage against the title to her home at Mosman. The mortgage was shown as being made up of contributions from the three clients whose money was used. The contributory mortgage was a second mortgage, as the home was already subject to a first mortgage in favour of the National Australia Bank.

Under Mrs Wilkinson's will, the $38,000 in question was to be paid to two beneficiaries in equal shares. One of these beneficiaries was Mrs Fulton, who was expecting a payment under the will. When this did not eventuate, she contacted the appellant frequently. When, on 16 February 1993, she was told of the mortgage to Mrs Roberts, she was furious and threatened to report the appellant to the Law Society. On 26 February 1993, the appellant gave Mrs Fulton a cheque for the amount due to her, plus interest. This cheque was taken from the firm's office account.

The Law Society had conducted a trust account inspection on 19 August 1992. Some possible irregularities were discovered. Following these discoveries, there were delays and unsatisfactory responses on the part of the appellant. One matter that was raised by the Law Society was the absence of authority in Mrs Wilkinson's will for the investment in the contributory mortgage. In February 1993, the appellant obtained a general lending authority ("GLA") from Mrs Fulton. However the GLA was dated 24 August 1992, and the appellant represented to Mrs Fulton that the GLA was material to the distribution of moneys from the estate.

In April 1993, the appellant prepared false diary notes, and misleading documents in relation to the contributory mortgage and the Wilkinson estate. The appellant gave instructions to his office manager to "tidy up the file" by placing these documents on the file.

In late 1992 and early 1993, the Law Society wrote to the appellant about both the GLA and the documents placed on the file. The appellant and Mr Dechnicz provided responses to these letters. Further, on 6 March 1997 and 2 May 1997, the appellant filed statutory declarations that contained material regarding the Wilkinson estate.

The Law Society then commenced proceedings in the Administrative Decisions Tribunal ("the Tribunal") in relation to the appellant's conduct. The complaints arose from the neglect, delay and incompetence in the administration of the Wilkinson estate, the creation of the contributory mortgage, the conduct of the appellant in having Mrs Fulton sign the GLA in the circumstances outlined above, and the alleged misleading documents provided to the Law Society in relation to the Wilkinson estate. In this latter regard, it was said that the letters provided by the appellant and Mr Dechnicz in response to the Law Society's letters were false and misleading, and that the material contained in the statutory declarations signed by the appellant was false.

On 29 April 2002 the Tribunal found the appellant guilty of professional misconduct. The Tribunal ordered that the appellant's name be removed from the roll of legal practitioners. The appellant appealed this decision to the Appeal Panel of the Tribunal (the Appeal Panel). The Appeal Panel upheld certain of the appellant's contentions by finding a denial of natural justice by the Tribunal in certain respects. However the Appeal Panel went on to find that the errors it found were not of sufficient significance to upset the decision of the Tribunal. The appeal was therefore dismissed. The decision of the Appeal Panel is challenged in this appeal.

HELD per Ipp JA (Tobias JA and Stein AJA agreeing)

1. Procedural fairness required the Tribunal to inform the appellant at an appropriate time that, notwithstanding a concession made by the Law Society, it was of a mind to make a finding that the appellant falsely represented to Mrs Fulton that the GLA was a condition precedent to her receipt of moneys. The failure to do so amounted to a denial of procedural fairness.

2. From the way in which the hearing before the Tribunal was conducted, it is apparent that the appellant assumed from the Law Society's submissions that it was not necessary for him to deal with ground of misconduct 5(B)(f). The Tribunal said nothing to alert the appellant to the fact that, notwithstanding the Law Society's concession, it might proceed to make findings adverse to the appellant in respect of this ground. The finding that ground 5(B)(f) had been established amounted to a denial of procedural fairness.

3. The appellant's submission that the Tribunal did not give any or adequate reasons for its finding that when the loan was made to Mrs Roberts the appellant was aware that her property was subject to a first mortgage was, in essence, a submission that the reasoning of the Tribunal was faulty. The circumstances are not comparable with Sinha v Health Care Complaints Commission [2001] NSWCA 206.

4. The appellant knew full well that the Tribunal might make findings regarding the appellant's willingness to make full and frank disclosure in the proceedings before the Tribunal. In addition, the appellant knew that in the event of the Tribunal making such findings, the Tribunal was contemplating taking them into account in determining what ultimate order should be made. When a legal practitioner in proceedings such as the present knows that there is a risk of such a finding being made and used by the disciplinary body in determining the final order to be made, and has adequate opportunity to deal with this prospect, there is no lack of procedural fairness where the disciplinary body so acts on the finding. This is the case even though the practitioner may not have been charged with specific misconduct relating to the conduct the subject of the finding. The Tribunal was therefore entitled to take into account, in coming to its ultimate conclusion as to the order that should be made, the findings set out in paragraphs 374-377 of its reasons relating to the appellant's willingness to make full and frank disclosure.

5. Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. Even if it is assumed that that the findings of the Tribunal that were infected with procedural unfairness were not part of the appellant's misconduct, a large number of indiscretions remain. While none of the findings is trivial, the findings of misuse of the trust account for the appellant's own benefit and the findings that the appellant placed false or misleading documents in the Wilkinson estate files are of particular gravity.

6. In falsifying documents and misleading the Law Society regarding the Wilkinson estate, the appellant displayed aspects of his character fundamentally inimical to practise as a legal practitioner. Although there were some mitigating factors, the deliberate use of trust moneys and the deliberate falsification of the files overwhelm these subsequent mitigatory circumstances. In addition, the appellant gave deliberately false evidence, was evasive in his answers, did not make full and frank disclosure, and did not accept his obligation to act honestly and openly in all matters. For these reasons, a properly conducted hearing before the Tribunal (or Appeal Panel) could not possibly have produced a result other than a finding that the appellant is not fit to practise as a legal practitioner. There is therefore no reason that the orders of the Appeal Panel should be disturbed.

ORDER

The appeal is dismissed with costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40237/03

NSWADTAP 029023

IPP JA

TOBIAS JA

STEIN AJA

Friday 12 March 2004

ROSS GARFIELD BARWICK v COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

Judgment

1 IPP JA:

The appellant's challenge to the decision of the Appeal Panel and the task of this Court

2 On 29 April 2002 the Legal Services Division of the Administrative Decisions Tribunal ("the Tribunal") found the appellant guilty of professional misconduct in proceedings instituted by the respondent ("the Law Society") under Pt 10 Div 7 of the Legal Profession Act 1987 and ordered that his name be removed from the roll of legal practitioners. The appellant appealed from that decision to the Appeal Panel of the Administrative Decisions Tribunal ("the Appeal Panel"). The Appeal Panel dismissed his appeal. By this appeal the appellant challenges the Appeal Panel's decision.

3 The appellant accepts that he was guilty of misconduct in many of the respects found by the Tribunal. He contends, however, that in giving its decision the Tribunal committed errors of law falling under three categories, namely, denial of procedural fairness, failure to give adequate reasons for decision, and miscarriage of discretion as to the order made. He contends further that the Appeal Panel, although it upheld certain of his contentions (by finding a denial of natural justice by the Tribunal in one respect and possibly another), wrongly rejected other arguments advanced on his behalf and, importantly, wrongly went on to find that the errors it found were not "of sufficient significance to vitiate the decision [of the Tribunal]".

4 As appears later in these reasons, I have come to the conclusion that the Appeal Panel did err in regard to certain issues. The issues in question concern matters where the Tribunal denied procedural fairness to the appellant. The factual findings infected by lack of procedural fairness cannot stand. But as matters of credibility are involved, this Court is not in a position to make findings in their place. Thus, having determined that the appellant should succeed in certain respects (and that certain findings should be set aside), the critical question arises: should this Court, taking into account the errors of the Tribunal as found by the Appeal Panel and those errors that the Appeal Panel should have found, affirm the decision of the Appeal Panel to remove the appellant's name from the roll of legal practitioners? Or should it, as the appellant submits, remit the matter to the Appeal Panel for rehearing? In answering this question, I shall assume that the appellant is not guilty of misconduct in respect of those matters where the Appeal Panel found that the Tribunal erred and in respect of those where I consider that the Appeal Panel erred.

5 Accordingly, in these reasons I shall deal firstly with the appellant's contentions as to the particular errors made by the Appeal Panel and then go on to consider what I have described as "the critical question". Before embarking on this exercise, however, I shall set out the procedural background to this appeal.

The legislative pathway to this Court

6 The decision of the Tribunal was an "original decision" as defined by s 7 of the Administrative Decisions Tribunal Act 1997. Accordingly, that decision, by s 112 of that Act, was an "appealable decision" and by s 113(1) an appeal against an appealable decision lay from the Tribunal to the Appeal Panel. By s 113(2)(a) such an appeal might be made on any question of law and by s 113(2)(b) (with the leave of the Appeal Panel), the appeal might extend to a review of the merits of the appealable decision.

7 By s 114(1), the Appeal Panel was required to determine the appeal restricted to questions of law and had power to "make such orders as it thinks appropriate in light of its decision". By s 114(2), the powers of the Appeal Panel included affirming or setting aside the decision of the Tribunal, remitting the case for it to be decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, or making an order in substitution of the order made by the Tribunal.

8 Section 119(1) of the Act provides that a party to proceedings before an Appeal Panel may appeal to the Supreme Court on a question of law against any decision of the Appeal Panel. Section 120(1) provides that the Supreme Court may make such orders as it thinks appropriate in light of its decision. Section 120(2) provides that the orders that may be made by the Supreme Court on appeal include (but are not limited to) an order affirming or setting aside the decision of the Appeal Panel and an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence).

Summary of events giving rise to the grounds of professional misconduct

9 On 1 December 1991, the appellant and another solicitor, Mr Dechnicz, formed a new firm, Barwick, Dechnicz and Boitano. They had previously been partners together in other firms.

10 In March 1992 Mr Dechnicz was in urgent need of money to meet various of his debts that had become due. The appellant appreciated that a failure by Mr Dechnicz to pay his creditors might result in his bankruptcy and the consequential dissolution of the new partnership.

11 The appellant and Mr Dechnicz formulated a simple scheme whereby the necessary money would be found. They withdrew $85,000 from their firm's trust account and (on behalf of their clients whose money it was) purportedly lent it to the appellant's sister, Mrs Roberts. She, in turn, lent it to the appellant. The appellant then provided the $85,000 to Mr Dechnicz who used it to discharge his pressing liabilities.

12 The $85,000 was not paid to Mrs Roberts. The reality was that Mrs Roberts was merely used as a conduit for the transfer of the trust moneys to Mr Dechnicz.

13 $38,000 of the $85,000 withdrawn from the trust account came from moneys belonging to the estate of the late Everil May Wilkinson. Mrs Wilkinson had been secretary to the appellant's father and the appellant was executor and trustee of the estate as well as its solicitor. The will of the late Mrs Wilkinson did not authorise the making of such a loan (as was ostensibly made to Mrs Roberts) and no beneficiary of the estate authorised the loan or was even aware that it was being made.

14 The balance of the $85,000 came from moneys in the firm's trust account that were beneficially owned by two clients of Mr Dechnicz.

15 The purported loan of $85,000 to Mrs Roberts was secured by way of contributory mortgage against the title to her home at Mosman. An epitome of mortgage was created and entered in the firm's register of mortgage. The epitome showed that the mortgage was made up of contributions from the three clients involved.

16 The contributory mortgage itself was a second mortgage, as Mrs Roberts' home was already subject to a first mortgage in favour of the National Australia Bank. The contributory mortgage was not registered and no caveat was registered against Mrs Roberts' property.

17 By Mrs Wilkinson's will, the $38,000 from the Wilkinson estate was to be paid in equal shares to two beneficiaries. One of those beneficiaries was Mrs Fulton. By early 1992 Mrs Fulton was expecting the final instalment due to her. The Appeal Panel noted:

"When that did not occur, not surprisingly she frequently called Mr Barwick's office. It was not until 16 February 1993, according to her, that she first learnt that the $38,000 (of which $19,000 was due to her) had been lent out. She was furious, and after her husband phoned Mr Barwick on 22 February 1993 and threatened to report him to the Law Society, Mr Barwick took steps to find the money. It was, of course, no longer available from the trust account, and the evidence was that he found the money from the firm's office account. He gave Mrs Fulton a cheque for $19,000 plus interest on 26 February 1993."

18 The Law Society had conducted a trust account inspection on 19 August 1992. What were thought to be irregularities were discovered. Delays and unsatisfactory responses on the part of the appellant ensued.

19 One of the matters raised with the appellant by the Law Society inspector was the absence of authority in Mrs Wilkinson's will for the investment on the contributory mortgage. Subsequently, in February 1993, the appellant obtained a general lending authority (the "GLA") from Mrs Fulton in circumstances that were the subject of a ground of misconduct alleged against him.

20 In early April 1993 the appellant gave instructions to his office manager, Mrs Hayward, to "tidy up the file". He prepared false diary notes and asked her to place them on the Wilkinson estate file, together with other documents that were misleading in regard to what had occurred in relation to the contributory mortgage. A transcript of the tape that the appellant dictated to Mrs Hayward when giving her the instructions to do these things was put in evidence before the Tribunal.

21 In the latter part of 1992 and early in 1993 the Law Society wrote to the appellant about these matters. The Tribunal found that "a number of false and misleading statements were made in letters signed variously by Barwick and Dechnicz in response ...".

22 On 6 March 1997 and 2 May 1997 the appellant filed statutory declarations that contained material in regard to the instructions to Mrs Hayward and the Wilkinson estate. The Tribunal found these declarations to be false.

The grounds of professional misconduct alleged

23 The information filed against the appellant before the Tribunal initially alleged seven grounds of professional misconduct but the Law Society withdrew the sixth ground before the hearing. Part of the seventh ground was also omitted. The hearing proceeded on grounds 1 to 5 and ground 7(b).

24 The first four grounds concerned the appellant's dealings with the Wilkinson estate.

25 The first ground alleged that the appellant was "guilty of neglect, delay and incompetence in the administration of the estate of the late Mrs Wilkinson". The particulars to this ground included the following allegations:

(a) The appellant was the sole executor and trustee of the Wilkinson estate.

(b) Probate was granted to the appellant on 10 March 1989. There was no justification for any delay in the administration of the estate.

(c) The appellant was not authorised (by the terms of the will or otherwise) to lend money belonging to the estate on the security of a contributory mortgage or to apply estate assets for his own personal benefit.

(d) On or about 20 March 1992 the appellant, without authority, ostensibly lent $38,000.00 belonging to the estate to his sister Mrs Diane Mavis Roberts for his own personal benefit on the security of a contributory mortgage bearing that date.

(e) The moneys ostensibly lent to Mrs Roberts were on-lent by her to the appellant. He used those moneys to meet a personal obligation he owed to Mr Dechnicz.

(f) The contributory mortgage was never registered or protected by lodgment of a caveat. The land was the subject of a registered mortgage in favour of the National Australia Bank Limited. The contributory mortgage was not stamped until 10 November 1992, following the intervention of a Law Society trust account inspector.

(g) The total amount of the mortgage debt (namely, $85,000.00) was expressed by the mortgage to be repayable on 20 March 1993. Interest was payable under the mortgage at quarterly intervals, the first payment of interest being due on 20 June 1992. Interest was not paid in accordance with the mortgage. In particular, the interest due on 20 June 1992 (before the intervention of the trust account inspector) was not paid when due.

(h) The appellant did not keep Mrs Fulton, a residuary beneficiary named in Mrs Wilkinson's will, fully informed of the progress of and developments in the administration of the estate; nor did he account to her promptly for moneys payable to her from the estate.

(i) The appellant did not obtain Mrs Fulton's consent to or approval of the loan of estate moneys to Mrs Roberts (or his interest as a borrower from Mrs Roberts) before such moneys were so lent.

(j) The appellant failed to disclose the loan to Mrs Fulton until 25 February 1993 or thereabouts when he secured her signature on the GLA (which was dated 24 August 1992) "as a condition of estate moneys being distributed to her on or about 26 February 1993".

(k) The appellant at no time advised Mrs Fulton as to the nature of a contributory mortgage, the details of the mortgage transaction (including the application of the loan moneys), or his personal interest in the proceeds of the mortgage advance.

(l) The appellant did not promptly pay Mrs Fulton the moneys payable to her under the will. Nor did he disclose to her that moneys paid to her were derived, at least in part, from the office account of the firm of which he was a partner.

26 The second ground alleged that the appellant "preferred his own interests over the interests of Mrs Fulton, to whom (as the executor and trustee of the estate of Mrs Wilkinson and a solicitor acting in the administration of the estate) he owed fiduciary obligations". The particulars to this ground included the following allegations:

(a) The appellant applied estate assets for his own personal benefit (via the loan to Mrs Roberts, on-lent to himself).

(b) The appellant failed to protect the interests of the estate by ensuring the provision of proper, authorised security and compliance with the terms upon which interest was payable on the loan to Mrs Roberts and failed to obtain the fully informed consent of Mrs Fulton to his application of the estate moneys.

27 The third ground was that the appellant "misled Mrs Fulton about the application of assets of the estate of the deceased for his own benefit". The particulars alleged under this charge included the following:

"3 ...

(b) The Legal Practitioner misled Mrs Fulton in that:

(i) at a time when Mrs Fulton was to his knowledge concerned about delays in the administration of the estate of the deceased, he failed to disclose to her that estate moneys had been applied (via a loan to Mrs Roberts, on-lent to himself) for his own personal benefit.

(ii) in submitting the `General Lending Authority' dated 24 August 1992 to Mrs Fulton for her signature on 25 February 1993 or thereabouts:

(A) The Legal Practitioner falsely represented to Mrs Fulton that the document related to the release of estate moneys, by way of distribution, to her.

(B) The Legal Practitioner failed to explain to Mrs Fulton that the document purported to be an authority for the investment of estate moneys which he proposed to produce to the Law Society as evidence that she had ratified his loan of estate moneys to his sister, Mrs Roberts.

(C) The Legal Practitioner failed to explain to Mrs Fulton that, notwithstanding the form of clause 1 of the document (which purported to authorise an investment secured by a registered mortgage), estate moneys had been lent on the security of a mortgage which had been neither registered nor protected by caveat.

(D) The Legal Practitioner failed to explain to Mrs Fulton that, notwithstanding the form of clause 8 of the document (which purported to record an understanding that estate moneys would not be lent to the Legal Practitioner, or an associate of the Legal Practitioner, or a borrower in which the Legal Practitioner had a financial interest), estate moneys had been lent to his sister, and on-lent by her to him, for his personal benefit."

28 The fourth ground alleged that the appellant, in providing for Mrs Roberts to borrow moneys from clients of the firm of solicitors of which he was a partner, failed to comply with cl 27(2) of the Legal Profession Regulation 1987, cl 32(1) of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988, s 61(1)(b) of the Legal Profession Act, cl 33 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 and s 62 of the Legal Profession Act 1987.

29 The fifth ground alleged that the appellant "made representations to the Law Society of New South Wales which were misleading and attempted thereby to mislead each of the Law Society and the Legal Services Tribunal". Particular 5(A) to the fifth ground relevantly read:

"...

(c) On or about 12 May 1993, by a letter bearing that date, and written in the course of an investigation leading to the filing of the Information in these proceedings the Legal Practitioner represented to the Law Society that, by her execution of a document entitled `General Lending Authority' and dated 24 August 1992, Mrs Fulton had ratified his conduct on or about the date of that document.

...

(d) These representations were false in that:

(i) The document entitled `General Lending Authority' was executed by Mrs Fulton on or about 25 February 1993, not on 24 August 1992 or thereabouts; and

(ii) Mrs Fulton's execution of the document did not constitute ratification of conduct of the Legal Practitioner, particularly (but not only) as the Legal Practitioner, in obtaining her execution of the document, failed to obtain her fully informed consent to the loan transactions which had been effected by him on or about 20 March 1992."

Particular 5(B)(f) to the fifth ground read:

"(f) By the Statutory Declaration made by him in the same Tribunal proceedings on 2 May 1997 (`the Second Statutory Declaration') the Legal Practitioner made misleading representations to the Law Society in that, by paragraphs 55 and 56 of the Second Statutory Declaration, he represented that he was not aware in the latter part of March 1992 (when discussing with Mrs Roberts and Mr Dechnicz the availability of her Mosman property as security for borrowings by Mr Dechnicz and himself) that the property was subject to a first mortgage. However, the first mortgage (in favour of the National Australia Bank) had been negotiated with the Bank by the Legal Practitioner in or about January 1991 in order to raise moneys for Mrs Roberts when the Legal Practitioner was unable to account to her for moneys due to her from Mundroola Pty Ltd but used by him."

30 The final ground was ground 7(b) which alleged that the appellant "attempted to mislead the trust account inspector ... with respect to the conduct of the Wilkinson estate". The particulars to this ground read:

"(i) The matter of the Wilkinson estate (under reference in the first complaint, above) and the contributory mortgage advance to Roberts had become a matter of interest to the Society's trust account inspector and was the subject of his reports dated 19 August 1992 and was the subject of further enquiry.

(ii) The Legal Practitioner was aware of the delay in the administration of the estate and the concern with the delay expressed by Mrs Fulton, the residual beneficiary, from time to time.

(iii) On or about 5 April 1993, the Legal Practitioner gave instructions to his employee, Motra Hayward, (in the circumstances set forth in the affidavit sworn by her on 1 May 2001 and comprising 39 paragraphs) to place false or misleading documents on the files relating to the Wilkinson estate and the mortgage advance to Roberts in such a manner as to lead an uninformed observer to believe, amongst other things, that certain communications had occurred with Mrs Fulton and that certain efforts had been made to progress the administration of the estate.

The documents included:

(a) Notes of telephone messages to Mrs Fulton explaining continuing delays

(b) File copy letter to the executor of the Estate of the late Eileen Gertrude Lenehan seeking a copy of the death certificate for Eileen Gertrude Lenehan and evidence of death of Kathleen Winifred Lenehan.

(c) Documents dictated by the Legal Practitioner (and reproduced as annexures `MH-1' to `MH-O' of Ms Hayward's affidavit).

(iv) The instructions included placing a copy of the death certificate for Eileen Gertrude Lenehan (to be obtained from the firm's file relating to the Lenehan estate) on the file so as to form part of a sequence of documents implying that an exchange of correspondence with the executor of the estate of the late Eileen Gertrude Lenehan had occurred when it had not, and to cull the Wilkinson estate file of any indication that the Legal Practitioner's firm had previously acted in the Lenehan estate."

The findings of the Tribunal

31 Before the Tribunal, the appellant made several admissions which I shall detail.

32 The appellant admitted the first ground of misconduct, save that he did not admit that the estate assets were used to meet a personal obligation owed by him to Mr Dechnicz. The appellant admitted that the loan to Mrs Roberts was to his personal benefit in that it enabled Mr Dechnicz to discharge his personal debts, but for which the continuance of the partnership with Mr Dechnicz would have been in jeopardy.

33 The qualification referred to in the previous paragraph applied to all other allegations in the grounds of misconduct to the effect that the appellant had lent the $38,000 belonging to the estate to Mrs Roberts for his own personal benefit. The other allegations to that effect were made in the second ground of misconduct (see [26] above) and particulars 3(b)(i) and 3(b)(ii) to the third ground of misconduct.

34 The appellant disputed particular 3(b)(ii)(A) of the third ground of misconduct but accepted (as the Law Society asserted in the course of the hearing before the Tribunal) that he had misled Mrs Fulton by representing to her that the GLA was "material" to the distribution of moneys from the estate. He also accepted that he had failed to explain the true import of the GLA to her.

35 Save to the extent that I have set out, the appellant admitted the second, third, and fourth grounds of misconduct.

36 The appellant admitted the particular 5(A) of the fifth ground of misconduct but disputed particular 5(B)(f).

37 As regards the seventh ground of misconduct, the appellant admitted particular 7(b)(ii) (see [30] above), that he was the author of certain documents, reproduced as annexures to an affidavit by Mrs Hayward (see particular 7(b)(iii) and [30] above, and that he instructed Mrs Hayward to place those documents on the estate file. In regard to the latter admission, the appellant said that the documents were prepared by him from earlier notes on pieces of paper of conversations with Mrs Fulton, and admitted that in the transcription inaccuracies as to dates and contents may have occurred.

38 Further, the appellant made two admissions in regard to ground of misconduct 7(b) in written submissions to the Tribunal. He admitted, firstly, that he gave instructions to Mrs Hayward to place on the estate file a copy of a letter to the executor of the estate of the late Eileen Gertrude Lenehan, which sought a copy of the death certificate for Eileen Gertrude Lenehan and evidence of the death of Kathleen Winifred Lenehan, which letter was false or misleading (see particular 7(b)(iii)(b)). Secondly, he admitted particular 7(b)(iv) (but did not admit the deceptive purpose alleged). These matters were not admitted on the pleadings. Otherwise the appellant disputed the allegations under ground 7(b).

39 Of the allegations disputed by the appellant, the Tribunal found against him in respect of particular 3(b)(ii)(A), particular 5(B) (these remain matters in respect of which the appellant appeals) and ground of misconduct 7(b) (the appellant does not appeal against this finding). The Tribunal found against the appellant in respect of those allegations admitted by him.

The appeal to the Appeal Panel

40 The appellant appealed to the Appeal Panel under s 113(2)(a) and s 113(2)(b) of the Administrative Decisions Tribunal Act. The Appeal Panel had before it the decision of the Tribunal and all the evidence that had been led.

41 In the course of the appeal before the Appeal Panel, the appellant abandoned that part of his appeal based on s 113(2)(b). He thereby abandoned his claim for a "review of the merits" of the Tribunal's decision. He persisted with his appeal under s 113(2)(a), that is, on questions of law.

42 The appellant did not contest the finding that he had engaged in the contributory mortgage transaction for his own benefit (in the sense that but for the contributory mortgage his partnership with Mr Dechnicz would have been in jeopardy), nor did he contest the finding that ground of misconduct 7(b) as alleged had been proved. He challenged all the other findings adverse to him on the other issues that he had disputed before the Tribunal.

43 The Law Society resisted the appeal and disputed the particular grounds raised. In addition, as the Appeal Panel recorded, the Law Society "made a general submission relevant to all points of appeal that even if the Appeal Panel were to find error in that one or more of the points of appeal were made out, it remained necessary for the Panel to satisfy itself that error or errors were of sufficient materiality and significance to have been likely to have affected the order that was made, especially when so many matters of misconduct had been admitted".

44 The Appeal Panel found that the Tribunal had made certain errors.

45 In its findings the Tribunal stated:

"320. We think that throughout the entire period under consideration there was a systematic and deliberate course of conduct by Barwick designed to protract the finalisation of the estate and payment of the final dividend, until such time as his subdivision had been completed and funds became available to him. This finding is relevant to the order that we will make."

The Appeal Panel said in regard to this finding:

"106. The Tribunal, we agree, went too far in stating with certainty that the delay would continue until such time as the sub-division was completed. The Tribunal's (sic) went too far in expressing a conclusion as to the point of time in the future when Mr Barwick would have resolved his financial difficulties.

107. There is an error, but one in our view of minor degree. We deal with the effect of this and other errors on the decision under appeal at the end of these reasons."

The Appeal Panel, later in its reasons, referred to this error as "error (i)".

46 The Tribunal found that the appellant had "deliberately concealed the contributory mortgage from the National Bank". The appellant complained about this finding on the basis that an allegation of deliberate concealment had not formed part of the charge. The Appeal Panel said in regard to this submission:

"We agree that there is no particular or charge alleging deliberate concealment. If this statement is excessive and unnecessary, and amounts to an error of law, it is not a matter to warrant interfering with the decision. We deal with this point further at the end of our reasons."

The Appeal Panel, later in its reasons, referred to this error as "error (ii)".

47 The Appeal Panel went on to say that the Tribunal, by taking into account the finding that the appellant's conduct was designed to delay the payment of the moneys due under the Wilkinson estate "until such time as [the appellant's] subdivision had been completed" constituted an irrelevant consideration. This was because that finding had been made in error by the Tribunal. Later, in its reasons, it referred to this error as "error (iii)".

48 The Appeal Panel summarised its views as regards errors (i), (ii) and (iii) as follows:

"195. As to error (i) and the companion error (iii), we have already expressed the view that this was a minor matter in the overall context of the case. The reference to the ultimate intention of Mr Barwick was not necessitated by the Information. Nonetheless this was not an error of sufficient degree to warrant a conclusion that procedural fairness was denied to Mr Barwick to such a degree that its conclusion that he should be removed from practice might have been different.

196. Our preferred view is that the matter we have referred to under (ii) is, when read in light of the closing submissions of counsel for Mr Barwick, not an error ... . However we consider the alternative view that it is an error, and explain our conclusion that even if it is an error it is not one warranting interference with the Tribunal's decision."

49 The Appeal Panel did not uphold the appellant's other challenges and dismissed the appeal.

The grounds of appeal

50 The grounds of appeal set out in the notice of appeal are several in number. It is convenient to summarise them as follows:

(1) The Appeal Panel should have held that the Tribunal denied the appellant procedural fairness in finding that the appellant had made a false statement to Mrs Fulton as alleged in ground of misconduct 3(b)(ii)(A) (notice of appeal para 3.2)

(2) The Appeal Panel should have held that the Tribunal denied the appellant procedural fairness in finding that the appellant had made a false declaration to the Tribunal as alleged in particular 5(B)(f)) (notice of appeal para 3.1)

(3) The Appeal Panel erred in failing to hold that the Tribunal had not given adequate reasons for finding that the appellant was aware when the loan was made to Mrs Roberts that her property was subject to a mortgage to the National Australia Bank (notice of appeal para 5.1).

(4) The Appeal Panel should have held that the Tribunal had erred in law by taking into account irrelevant considerations, namely:

(a) that the appellant had given false evidence in respect of the falsification of the Wilkinson estate and mortgage files.

(b) that the appellant had deliberately concealed the contributory mortgage from the National Australia Bank.

(c) that the appellant had made false declarations to the Tribunal.

(d) that the appellant's evidence concerning certain file notes was intentionally false.

(Notice of appeal paras 4 and 6.)

(5) The Appeal Panel erred in dismissing the appeal notwithstanding that it found that the Tribunal had committed the errors it had identified; errors (i), (ii) and (iii); moreover, the errors of the Appeal Panel as set out in the other grounds of appeal contributed to it wrongly making an order removing the appellant's name from the role of practitioners (notice of appeal paras 1 and 2).

51 The arguments raised in paras 5.2 and 5.3 of the notice of appeal were not pressed in the appellant's written and oral submissions.

52 In dealing later with the grounds of appeal I shall use the nomenclature set out in [50], that is to say, I shall refer to the grounds that I have set out in summary form in [50] as grounds of appeal (1) to (5) respectively. Although the grounds of appeal as I have summarised them are not in the precise form of the grounds set out in the notice of appeal, they do, I think, encapsulate the propositions the appellant has argued.

The finding of the false representation to Mrs Fulton (ground of appeal (1); notice of appeal para 3.2)

53 The appellant contended that, in finding that he had falsely represented to Mrs Fulton that the GLA was a precondition of the release of estate moneys to her, the Tribunal had denied him natural justice. This submission was based on the way in which the parties dealt with this issue in the hearing before the Tribunal.

54 The relevant particular is 3(b)(ii)(A), namely, that "[the appellant] falsely represented to Mrs Fulton that [the GLA] related to the release of estate moneys, by way of distribution, to her".

55 In the Law Society's written submissions to the Tribunal it stated that particular 3(b)(ii)(A) "is not intended by the Society to convey an allegation that Mr Barwick represented to Mrs Fulton that execution of a General Lending Authority by her was a condition precedent to her receipt of moneys". The Law Society went on to explain that its case in this regard was merely that the GLA "was material to the distribution of moneys to [Mrs Fulton]".

56 In its oral submissions as to particular 3(b)(ii)(A) the Law Society referred only to its written submissions.

57 In his written submissions the appellant noted that he had admitted that he "did not keep Mrs Fulton fully informed of the progress of administration of the estate and in fact misled her by his failure to explain the [GLA]". It was plain that the appellant was arguing this aspect of the case on the basis that he assumed that the Tribunal would go no further than the Law Society's concession on the issue. In my view, this assumption was entirely reasonable and must have been realised by the Tribunal.

58 In these circumstances, procedural fairness required the Tribunal to inform the appellant at an appropriate time that, notwithstanding the concession made by the Law Society, it was of a mind to make a finding that the appellant falsely represented to Mrs Fulton that the GLA was a condition precedent to her receipt of moneys. It failed to do so. In my view this failure amounted to a denial of procedural fairness: cf Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, particularly at 473 to 474. I would uphold this ground of appeal.

59 I note at this stage that there is but a small distinction between the allegation, on the one hand, that the appellant falsely represented to Mrs Fulton that the GLA was a precondition to the release of the estate moneys and, on the other, the appellant's admission that he misled Mrs Fulton by his failure to explain the GLA to her and by representing to her that the GLA was material to the distribution of moneys to her.

The finding that a false declaration had been made: particular 5(B)(f) (ground of appeal (2); notice of appeal para 3.1)

60 In written submissions to the Tribunal, the Law Society referred to the relevant evidence and the onus of proof and submitted that "the prudent course would be for the Tribunal to find that ground [of misconduct] 5(B)(f) has not been established against Mr Barwick". In his oral submissions to the Tribunal, Mr Lindsay SC, senior counsel for the Law Society, said:

"The question is would it be safe to make a finding against him in term [s] of ground [of misconduct] 5(B)(f) and the Law Society submits the prudent course would be not ... to make an adverse finding against Mr Barwick on that ground."

61 In his written submissions, Mr Allaway QC, who appeared as senior counsel for the appellant before the Tribunal, submitted:

"The Law Society in light of the evidence of Mrs Roberts does not contend [ground of misconduct 5(B)(f)] is established ... . We submit that the Tribunal should find that ground 5(B)(f) is not established."

Mr Allaway submitted orally:

"We say the Law Society is correct in conceding that ground [5(B)(f)] has not been established."

62 Mr Allaway's principal submission before the Tribunal was that the Law Society had not proved its case on the various grounds. He then made alternative submissions on the basis that "grounds 1, 2, 3, 4, 5(A) and 7(b) as particularised have been proved". He made no submissions in regard to ground 5(B)(f).

63 From the way in which the hearing before the Tribunal was conducted, it is quite apparent that the appellant assumed from the submissions made on behalf of the Law Society that it was not necessary for him to deal with ground of misconduct 5(B)(f). The Law Society had expressly conceded that it had not made out a case in regard to this ground. For that reason, the appellant - understandably - made no submissions as to this ground.

64 It is also apparent from the transcript that the appellant indicated that it was relying on the Law Society's concession and was not making any submissions in regard to ground of misconduct 5(B)(f). Nevertheless, the Tribunal said nothing to alert the appellant to the fact that, notwithstanding the Law Society's concession, it might proceed to make findings in respect of this ground against the appellant.

65 In my opinion, the Tribunal's finding that ground 5(B)(f) had been established amounted to a denial of procedural fairness to the appellant: Pantorno v The Queen. It was incumbent upon the Tribunal, in the circumstances, were it intending to make findings in regard to ground 5(B)(f), to inform the appellant of that possibility at an appropriate time.

66 Mr Lindsay, in the appeal before this Court, submitted that the Tribunal was obliged by s 167(2) of the Legal Profession Act to determine ground 5(B)(f) as this ground had not formally been withdrawn by the Law Society. (I assume that this argument was intended to relate also to the ground relating to the finding of the false representation to Mrs Fulton).

67 In my view, whatever the effect of s 167(2) may be, it cannot mean that the Tribunal is entitled to make a determination in a procedurally unfair way. I would therefore uphold ground of appeal (2).

The failure to give adequate reasons (ground of appeal (3); notice of appeal para 5.1)

68 The appellant contended that the Appeal Panel was in error in failing to hold that the Tribunal erred in law in failing to give any or adequate written reasons in compliance with s 89(5) of the Administrative Decisions Tribunal Act for concluding that the appellant falsely testified that he was not aware when the loan was made that Mrs Roberts' property was subject to a mortgage to the National Australia Bank.

69 The appellant sought to rely on Sinha v Health Care Complaints Commission [2001] NSWCA 206. In that case, a medical practitioner had been accused of professional misconduct involving sexual contact with a patient. A major part of the alleged sexual contact was said to have occurred during consultations between the medical practitioner and the patient in the late afternoons. The Medical Tribunal, in accepting the patient's version, discounted the relevance of the testimony of the practitioner's receptionist (Ms Fleming) on the ground that the alleged sexual activity occurred after Ms Fleming had left work. Fitzgerald AJA (with whom Hodgson JA and Ipp AJA agreed) said:

"The Tribunal's finding that sexual activity between the patient and the practitioner took place after Ms Fleming's departure from work in the afternoon so that there was nothing impracticable in Ms Fleming being in total ignorance of what was occurring was directly contradicted by Ms Fleming's unchallenged evidence that she did not leave work until after the practitioner had finished attending to patients for the day.

The Tribunal's failure to deal with this significant evidentiary conflict when explaining its acceptance of the patient's allegations makes its reasons critically defective, and the practitioner is entitled to a rehearing."

Thus, the point underlying the decision in Sinha was that, on a critical issue, the Tribunal had given no reasons explaining its finding.

70 In the present case, however, the Tribunal did give reasons for its finding that the appellant was aware of the mortgage in favour of the National Australia Bank. The Tribunal stated:

"108. Whether or not Mr Barwick was present with Mrs Roberts when she signed the mortgage, it is inconceivable that Mr Barwick was not aware that the loan was to be secured by a first mortgage over Mrs Roberts' home. Mrs Roberts was clearly very reliant on Mr Barwick for his advice and assistance. He was her older brother and a solicitor whereas she is not legally trained. Mr Barwick was an experienced conveyancing solicitor who had acted for her in her family law proceedings. The title deed was with the National Bank at the time of the contributory mortgage and this alone should have put Mr Barwick on notice that further inquiry was needed to ascertain whether the property was unencumbered.

109. We find that Barwick negotiated for Mrs Roberts with the bank. In all probability the bank made its security requirements known to him on that occasion. Even if the question of security did not come up until after their meeting with the manager, we are sure that Mrs Roberts would have discussed this with him before signing the mortgage.

110. We think Mr Barwick was well aware in January/February 1991 that the loan from the National Bank to Mrs Roberts was to be secured and was actually secured by a first mortgage."

The Tribunal went on to say that this view was confirmed by Mrs Roberts' evidence of a meeting she had with the appellant in early April 1992. The Tribunal pointed out that the appellant said to her:

"Di, I need to reorganise my finances and I need your assistance. I have run out of securities. As you know Roman and I have gone into practice with very little capital and although the bank has assisted us we do need to raise some additional capital and they are reluctant to give us any further money unless we can come up with some other security. As you are already mortgaged to the bank it would be easier for them to cover the additional borrowings with your security. ... We can add it to the existing mortgage and we can combine your indebtedness with ours."

71 Mr Brereton criticised this reasoning and submitted that it was not a rational explanation for the finding of the Tribunal that, when Mrs Roberts agreed to the contributory mortgage, the appellant knew that a first mortgage in favour of the National Australia Bank had already been registered over the property. In essence, Mr Brereton's submission (although couched in different terms) amounted to the proposition that the reasoning of the Tribunal was faulty; in substance, it was not a submission that the Tribunal gave no or no adequate reasons for its decision. In my view, the circumstances of this case are not comparable with Sinha v Health Care Complaints Commission. I would not uphold this ground of appeal.

Irrelevant considerations: concealing the contributory mortgage from the National Australia Bank (ground of appeal (4)(b); notice of appeal para 4(c))

72 The Tribunal found that the appellant had deliberately concealed the contributory mortgage from the National Australia Bank. No allegation in this regard was contained in the information or the particulars thereto. The Tribunal appears to have taken this finding into account when determining the order to be made.

73 As I have mentioned, the Appeal Panel was of the opinion that if the use of this finding as to deliberate concealment of the contributory mortgage was an error of law on the part of the Tribunal, "it is not a matter to warrant interfering with the decision."

74 I shall deal with this particular issue when considering, in the light of the errors made by the Tribunal, what order should be made consequential upon the appellant's proved misconduct (see ground of appeal (5)). I shall assume that the use of the finding that the appellant concealed the contributory mortgage from the bank was an error of law.

Irrelevant considerations: giving false declarations and evidence to the Tribunal (grounds of appeal (4)(a), (b) and (c); notice of appeal paras 4 and 6)

75 Before the Tribunal the Law Society emphasised what it submitted to be false evidence given by the appellant regarding certain file notes that were prepared for his Wilkinson estate file.

76 The file notes have to be seen in the light of the tape that the appellant had dictated and given to his employee, Mrs Motra Hayward, "on or around the 5 April 1993". The Tribunal rightly described this tape as "a damning piece of evidence against [the appellant]". The transcript of this tape reads as follows:

"The next one, Motra that's got to be looked at is the Wilkinson estate and I will leave the file with this tape, there is some notes there which need not be put on the file, there are some other notes which I think should be put on the file, in particular, I think the starting point is whether the file has been seen by the inspector before and at what time, there is some notes for instance right at the beginning of the file, which I wrote a note to Martin Walsh. I think that there should be an early note that we would probably invest the funds pending sorting our tax and other problems relating to the administration of the estate.

Then after that, there is a letter which we sent of [sic] to Mrs Fulton saying that there is a tax matter to be dealt with. I think after that I spoke to her and told her that I'd decided to invest the funds and that I would ask her to sign an approval to that affect [sic], although strictly, I do not think, since she is a beneficiary and not actually the client, the executor is the client, I don't know that strictly she should sign of one of those lending forms but we will send it to her none the less.

Then further down the track, should report to her about delays, that will be later in 1992, just by phone message saying `still waiting to administer the estate and tidy up the tax, the accountants have asked for a lot more material etc. ...

Now, I think what we've got to do is put a letter on the file directed to the executor - estate late Eileen Gertrude Lenahan, C/- Peat Marwick in Melbourne, Peat Marwick KPMG, the accountants in Melbourne, saying, ... please furnish evidence of the death of the above named. It occurs to us that you may also be able to furnish evidence of the death of Kathleen Winifred Lenehan, late of Canberra, who, we believe was the sister-in-law of Eileen Gertrude, Lenehan, and who we understand also to be deceased.

Now, I don't want there to be any reference on the Wilkinson file, Motra, to the fact that we were at one stage acting for the, Eileen Gertrude Lenehan estate 8799, but I'll leave the file with the tape and um, from that file, you can extract a copy of the death certificate, if there is one there, it might be a photocopy of the death certificate and place it on the Wilkinson file, so that it actually has come in after I'd written that letter to the accountants in Melbourne, Motra, and you might have a look through that Lenehan file and see if you can see a note of the death of Kathleen, there might be something else, I, I didn't act for the Kathleen Wilkinson estate, she died in Adelaide ... The purpose of going through that exercise is, Motra, to show that I made a mistake in supposing that Roselee Fulton was only entitled to half of the residue, and then getting about ensuring that we have some evidence of the death of the other two beneficiaries, so that we can then say to Roselee Fulton, well here you are, you're entitled to the lot. So it's a matter of noting up the file with those steps."

77 The Tribunal pointed out that the words "tidying up some things in advance of the trust account inspector turning up" referred to the fact that the appellant anticipated a return visit from the Law Society's trust account inspector. The inspector had made it plain that he wanted to investigate the contributory mortgage, the Wilkinson estate and the GLA. His return was particularly significant to the appellant as, some two months prior to the dictating of the tape, the Law Society had foreshadowed that the appellant's conduct might be referred to the Professional Conduct Committee.

78 The Tribunal observed:

"The tape directs Ms Hayward to put file notes on the Wilkinson estate file at a time when a further inspection by the trust account inspector was anticipated. The clear tenor of the tape is that the estate file is to be sanitised, re-arranged and falsified to mislead the Law Society to believe that certain steps had been taken which were not in fact taken, or to conceal other matters."

79 One of the file notes created pursuant to the tape was dated 28 February 1992. It stated:

"Rang Margaret Fulton. Balance of estate funds sent to us from SLB. We to invest on short term mortgage funding. Estate tax returns being done - may be 6 months or so. She agrees will write to us and confirm. Better interest rate than building society - payable at end of term. She would like to see finalised distribution by end of year."

80 This file note was annexed to a statutory declaration made by the appellant on 2 May 1997 that was filed in earlier proceedings apparently abandoned on jurisdictional grounds. In that declaration the appellant stated:

"[The file note dated 28 February 1992 was] my file note of my telephone conversation with Mrs Fulton on 28 February 1992. Although in that conversation I apparently suggested a short-term mortgage, I did not then know of the proposed transaction which resulted in the loan to my sister Mrs Roberts".

81 The "loan" referred to in the appellant's statutory declaration was the loan involving the contributory mortgage. Mrs Fulton's evidence before the Tribunal was to the effect that the file note concerned was false. The appellant denied this. The Tribunal said in regard to this note:

"241. We reject Mr Barwick's evidence. He is not a witness of credit. He has shown that he is prepared to make a false declaration, fabricate documents, rearrange files and conceal material which might be prejudicial. His admissions do not go beyond the files notes in his own handwriting and his recorded voice on the tape. The evidence shows that Barwick developed over many months an elaborate web of lies and deceit in relation to the matters under consideration. In a calculated fashion he deliberately misled his sister, his clients and the Law Society.

242. We are in no doubt that the supposed file note `MH - F' was a fabrication and falsely purports to record a conversation with Mrs Fulton on or about that date, which did not occur. It was deliberately prepared to mislead the Law Society in its investigation by suggesting that Mrs Fulton had consented to the contributory mortgage. She knew nothing of it."

82 Another file note annexed to the appellant's statutory declaration was dated 19 June 1992. It stated:

"Mrs Fulton rang. Told her money on loan - income earning. Still have to do tax - estate to pay ... She to send me a note agreeing to short term mortgage investment - say six months or so."

83 Mrs Fulton's evidence was again to the effect that this file note was not a true account of any conversation she had had with the appellant. When cross-examined on the file note, Mr Barwick denied that it was a false record. The Tribunal rejected the appellant's evidence and found that the file note was a fabrication that recorded a conversation that did not occur.

84 The Tribunal found that another file note, also dated 19 June 1992 and annexed to the appellant's statutory declaration, also contained false material.

85 These findings, and the view to which the Tribunal came, generally, as to the way in which the appellant gave his evidence, led it to make the following remarks:

"374. Barwick did make some admissions but only at the last moment and they were not full and frank. They were insignificant in the context of the proceedings.

375. He was evasive in his answers and professed to have no recollection of significant events relevant to the proceedings. He did not make full and frank disclosure. We cautiously accept Mr Barwick's evidence that he was suffering from depression throughout some of the period from which these matters arise. This, combined with stress of other kinds, may have affected his ability to recall some matters. However we do not accept this is the true reason why he failed to give evidence of matters adverse to him.

376. Many of the answers given at the hearing were not truthful or were at best a half truth. We do not think this augurs well for the future. We do not think that Mr Barwick has yet accepted his obligation to act honestly and openly in all matters.

377. In addition to the primary findings of fact we have set out in these reasons, we have found that his evidence concerning the file notes was intentionally false. In reaching this conclusion we are conscious of the need for care and a high degree of satisfaction upon the evidence: O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204; Smith v Bar Association of New South Wales [1992] HCA 36; (1992) 176 CLR 256 at 268, 271-275. We base our finding not only on the demeanour of the respondent, but upon the whole of the documentary and other evidence before us.

86 Thus, the Tribunal concluded that, in giving evidence before it, the appellant was evasive in his answers; he made some admissions but only at the last moment and they were not full and frank; generally, he did not make full and frank disclosure; many of the answers he gave were not truthful or were at best half truths; and his evidence concerning the file notes was intentionally false. The Tribunal concluded further that the appellant had lied in his statutory declarations and to the Tribunal itself in regard to the tape he dictated to Mrs Hayward and his file notes.

87 Mr Brereton pointed out that none of these findings was the subject of any ground of misconduct or particular. Nevertheless, they appear to have influenced the Tribunal in making the order removing the appellant from the roll of practitioners. The Appeal Panel considered that the Tribunal was entitled to take these findings into account.

88 Mr Brereton submitted that while these findings were available on questions of credit, they did not form part of the material on which the Tribunal was entitled to rely in determining the ultimate question of fitness and the appropriate disciplinary order. He argued that the Tribunal was not entitled to take into account, as part of the case against the appellant and as part of the matters relevant to the appropriate disciplinary order, misconduct that had not been charged and particularised.

89 Mr Brereton relied for these submissions principally on the judgment of Deane J in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256. His Honour observed in that case (at 270):

"Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner. Nonetheless, a court or other tribunal entertaining such proceedings is bound to observe the requirements of procedural fairness before making or acting upon any finding of misconduct. Two of those requirements in such proceedings are relevant for present purposes. The first is that the allegations against the particular practitioner must be specifically identified. The second is that the practitioner must be afforded an appropriate opportunity of being heard in relation to them."

Deane J continued (at 272-3):

"If, in the course of the hearing before the Court of Appeal, it had been sought to expand the particulars of the allegations against the appellant to include an allegation that he had deliberately given false evidence to that Court, a question would have arisen whether it would be reasonable to require the appellant to deal at the one time with the original particularized complaints against him and a complaint that the evidence which he gave in answer to those complaints was deliberately false. Obviously, there would have been something to be said for the view that it would have been unfair to require the appellant to establish that he had been honestly mistaken in giving the evidence upon which he relied before that evidence had been rejected by the Court of Appeal. In fact, there was no attempt to amend the particulars of complaint. In the absence of any such amendment, the issue before the Court of Appeal remained whether the effect of all the evidence, including the appellant's evidence about the car park conversation, was that the particularized complaints had been made out to the requisite standard of proof. The appellant could not realistically be expected, while maintaining the reliability of his evidence in relation to that issue, to have set out to establish how and why that evidence was honestly mistaken. If the Court of Appeal, after reaching the conclusion that the appellant's evidence about the car park conversation should be rejected, had thought it desirable or necessary to consider whether the appellant had been guilty of professional misconduct in that he had deliberately given false evidence before it, `at the very least a new charge would have [had] to be laid (before it could be relied upon) so that [the appellant could] then know of it, appreciate what he [had] to meet and be allowed ample opportunity to meet it'. Such a new charge could have been laid by appropriate amendment to the particulars of complaint and an appropriate opportunity of being heard could have been provided by relisting the matter for that purpose. In fact, however, no specific charge of deliberately giving false evidence before the Court of Appeal was ever laid against the appellant and no opportunity was extended to him to deal with such a specific charge before the Court of Appeal made its initial find of guilt."

His Honour went on to state (at 273):

"It follows from what has been said above that the Court of Appeal's original order that the appellant be disbarred was affected by a denial of procedural fairness for the reason that the appellant had never been given an appropriate opportunity of being heard in relation to the question whether his evidence ... was deliberately false."

90 These remarks were qualified by his Honour towards the end of his judgment when he said (at 274):

"There is one further matter which I would mention. It is that nothing in this judgment should read as supporting a proposition that the Court of Appeal can never, in disciplinary proceedings, make or act on a finding that the practitioner concerned gave deliberately false evidence before it. To the contrary, it appears to me that circumstances could arise in which it would border on the absurd if the court were precluded from making or acting upon such a finding. If, for example, the practitioner conceded under cross-examination that he or she had deliberately lied in his or her evidence-in-chief about critical matters, the court would clearly be justified in allowing an amendment of the particulars of complaint to include that misconduct and, having given the practitioner the opportunity of being heard in relation to it, in taking account of it in determining the appropriate order in the circumstances of the case."

91 Mr Lindsay submitted that it was not open to the appellant to challenge the decision of the Appeal Panel insofar as it relied on the findings of the Tribunal expressed in paragraphs 374 to 376 of its decision (see [86] above). This submission was based on arguments principally to the effect that there was no ground in the notice of appeal relating to these matters, and that the appellant - by the way in which he had conducted the proceedings before the Tribunal - had accepted that these matters could properly be taken into account. I do not propose to take up much time with this issue, save to say that I think the notice of appeal is wide enough to cover the point and the way in which the appellant's case was presented at the Tribunal can be considered in the context of the merits of Mr Brereton's argument on the question.

92 I turn, immediately, to the latter point. Mr Lindsay submitted that, at the hearing before the Tribunal, the appellant's counsel, Mr Allaway, specifically anticipated and addressed the possibility that the Tribunal might conclude that the appellant had lied to it and that it might make general credibility findings against him. I shall set out the material that supports this submission.

93 The Law Society, in its submissions to the Tribunal, referred to the statement by Moffitt P (with whom Hope JA and Mahoney JA agreed) in Johns v Law Society of New South Wales [1982] 2 NSWLR 1 (at 9 to 10) where his Honour said:

"Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes up for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is.

However the proper approach be stated, it is clear that, accepting, as the appellant does, that there was at least professional misconduct up to March 1977, the court should look at the whole of the conduct of the solicitor before and after that date to determine whether the order made by the committee in August 1981 should be disturbed. This requires a consideration by this Court of the conduct of the solicitor investigated in relation to other questions and the unchallenged findings of the Committee in answering them. In order to determine the sole question raised in this appeal whether the solicitor's name should be removed from the role, this Court, in the end, must make its own evaluation of the quality of the conduct of the solicitor, namely how serious any misconduct was and whether it amounted to professional misconduct ... "

It is to be noted that in Johns Moffitt P took into account the giving of false certificates by the practitioner even though the disciplinary body concerned had not made a finding that the giving of the false certificates amounted to professional misconduct.

94 Having drawn attention to Johns, the Law Society submitted to the Tribunal that the passage of time since 1993 could not assist the appellant. Specific reference was made to his verification of the false file notes, the lateness of his "plea of guilty", his lack of appreciation "even now" of his wrongdoing, and his inability to adhere to his formal admissions in regard to ground of misconduct 7(b). The Law Society submitted that the appellant's false verification of the file notes, both in his statutory declaration and in giving evidence before the Tribunal, justified his removal from the roll. It submitted that his failure to acknowledge that the file notes were prepared with the intention to mislead the Law Society "demonstrates his continuing unfitness to be a legal practitioner".

95 Mr Allaway, in response, submitted that the appellant had "learnt his lesson". The Deputy-President of the Tribunal then observed:

"Well, there has been no admission. This is one of the problems, I must say, I always see when a Tribunal has to decide, first of all, liability in that sense whether someone is guilty or not, putting it broadly, and then you go on to the question of what orders should be imposed, because where there has been no admission as to the substantive facts, when the person before the Tribunal has denied that the conduct occurred, then it is harder, isn't it, to be satisfied that the conduct won't occur again, because you don't see that sort of remorse and contrition and, `Look, I know what I did was wrong but I won't do it again for these reasons,' because, by definition, the person hasn't ever said that."

96 Mr Allaway went on to submit to the Tribunal that the approach of Moffitt P in Johns - in regard to the question of onus - was wrong in law. He did not, however, submit that it would be wrong for the Tribunal to have regard to the matters referred to by the Law Society and the Deputy-President when determining to what extent and how the conduct of the appellant (during the period between the charged conduct and the hearing) should affect the ultimate order to be made.

97 The Deputy-President also asked Mr Allaway what he had to say "about the duty of frankness and candour." The Deputy-President noted that certain persons had been unwilling to say who "might have been responsible for various parts of the evidence". The example was then given of the dictation of certain letters "destined for the conveyancing file". Obviously, in the context, the Deputy-President was referring to persons, including the appellant, who had shown a lack of frankness and candour in testifying before it (and who may have breached that duty). Mr Allaway did not dispute that the Tribunal was entitled to take lack of frankness and candour in giving evidence into account. He merely submitted: "It's not up to Mr Barwick to say he did it".

98 Mr Allaway urged the Tribunal:

"Even if you conclude that Mr Barwick lied about the handwritten notes as to his intention to write them, the public will be protected because there is no scintilla of a chance that he would ever do such a thing again."

He emphasised:

"The need to cover up something is not going to recur."

99 Later, in Mr Allaway's submissions, he sought to explain why the appellant did not tell the Tribunal "the truth about those [file] notes." While making no concession as to what the Tribunal's findings should be in this regard, he submitted:

"It may be because of his famous name and who he is in relation to his father he couldn't bring himself to tell you that he concocted those notes."

100 In my opinion, the material to which I have referred shows the appellant knew full well that the Tribunal might make findings of the kind set out in paragraphs 374 to 377 of its reasons.

101 In addition, in my opinion, that material also shows that the appellant knew full well that the Tribunal - in the event of it making any such findings - was contemplating taking them into account in determining what ultimate order should be made.

102 The question arises whether the Tribunal denied the appellant procedural fairness in having regard to those matters when deciding to make an order removing the appellant from the roll of practitioners.

103 In Smith v New South Wales Bar Association Brennan, Dawson, Toohey and Gaudron JJ said at 269:

"But even if the evidence [in disciplinary proceedings] was sufficient to support the findings so made [that the appellant deliberately lied] and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made. In the first hearing before the Court of Appeal, no allegation of deliberately lying was made against the appellant before the adverse finding was made. That being so, the finding then made that the appellant had lied and the consequence of that finding then determined by Mahoney and Meagher JJA that the appellant be disbarred were flawed. In the second hearing, evidence which might have affected the finding of deliberate lying was erroneously rejected. It follows that the affirmation of the finding that the appellant lied and of the order that he be disbarred cannot stand."

104 In Bannister v Walton (1993) 30 NSWLR 699 this Court considered the effect of Smith v New South Wales Bar Association. Mahoney JA (at 728) discussed the issue whether the joint judgment in Smith v New South Wales Bar Association affected "the use which may be made of a finding, properly made, that a party has lied when the Court comes to determine what order should be made against him". His Honour said:

"The question which here arises is whether, as the result of the Smith case, a finding of lying before the Court of Appeal, properly made, cannot be taken into account unless first the charges are amended formally to make that an additional charge of misconduct and unless, following the amendment of the charges, that matter be again dealt with not merely in respect of sentence but as a charge."

His Honour then referred to the remarks of Deane J in Smith at 272-273 quoted above and said (at 729):

"As I have said, the problem to which I now refer arises where, in the proceedings, the party is well aware, eg, by what has been said and done in the proceeding, that it is possible the court may find him to have deliberately lied in evidence before it. Is it required, before a finding of lying can be used to determine the order to be made, that there be `an amendment of the particulars of complaint' to make that a specific item of misconduct?

It is, I think, not clear in terms whether, in the majority judgment, such a view was adopted. What was there said: for example (at [268-9]) is, in terms, consistent with the view that it is sufficient that the party know of the possibility that a finding of lying may be made.

This is, of course, a matter of importance in determining how cases of professional misconduct are to be dealt with. A tribunal or this Court will ordinarily not make a finding that a party has lied until, following the close of the evidence, it has had an opportunity carefully to examine what has been said and done. If it concludes that the party has lied, but cannot take that into account in determining its order without making it the subject of a specific complaint, then it must reconvene the court or tribunal, offer the complainant an opportunity to amend, rule on the amendment, and then reconsider the complaint as amended.

In the present appeal, the question whether Dr Bannister lied to the tribunal was, in the sense to which I have generally referred, a live issue and one the existence of which was apparent to Dr Bannister. The tribunal found that he had been guilty of deliberate deceit in charging and, accordingly, that when he said the overcharging was due to accident and not to deliberate deceit, he was not to be accepted. The tribunal found, for example, that `the respondent knew that the bills were wrong and that he was committing a fraud' and that when he said `that he believed that he was quite entitled to charge for attendances at a lower rate for Dr Deutsch' in an account under his own name, `the respondent held no such belief'. These involve, in my opinion, a finding that Dr Bannister deliberately lied to the tribunal. It was `the persistence of such deceitful conduct' which the tribunal took into account in concluding that there was `within his character a marked degree of moral turpitude' and that `he is not of good character'.

With respect, I am of the opinion that what was held in the Smith case does not make such a finding or such a use of it inconsistent with principle. It was not, in my opinion, necessary for the tribunal to amend the charges to allege lying or some analogous matter before it could make such a finding or such a use of it in the present case.

I am therefore of opinion that the decision in the Smith case is not of assistance to Dr Bannister in this appeal."

Priestley and Clarke JJA agreed with the reasons of Mahoney JA on these issues. Clarke JA said, in addition (at 735):

"It may be, however, that the Tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made ... "

105 In McBride v Walton (unreported, NSWCA, 15 July 1994) Handley JA applied the reasoning of Mahoney JA in Bannister v Walton. In doing so he pointed out that the appellant in that case "was also on notice that if the complaints were established the tribunal might take the finding into account in considering what order should be made". Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 450 is to similar effect. In Coe v New South Wales Bar Association [2000] NSWCA 13 this Court dismissed an appeal from a legal practitioner whose name was removed from the roll for swearing a false affidavit with intent. The Legal Services Tribunal had found that the practitioner had signed the affidavit with intent to deceive. The issue on appeal was whether the tribunal's finding went beyond the scope of the charge. Mason P and Meagher JA held that the practitioner knew that the question of intent would be considered by the tribunal; that the tribunal had been entitled to make a finding of intent and that it had been entitled to take that finding into account in making the order that the practitioner's name be removed from the roll.

106 The cases referred to in the previous paragraph are consistent with the general approach adopted by Moffitt P (with whom Hope JA and Mahoney JA agreed) in Johns v Law Society of New South Wales.

107 I do not think that anything said by Deane J in Smith requires this Court to adopt an approach different to that followed in Johns v Law Society of New South Wales, Bannister v Walton, McBride v Walton, Law Society of New South Wales v Foreman and Coe v New South Wales Bar Association.

108 The relevant time for determining the fitness of a practitioner to practise is the time of the determination by the disciplinary body seized with the question: cf A Solicitor v The Law Society of New South Wales [2004] HCA 1; (2004) 204 ALR 8. The misconduct charged will have taken place before the decision is made; there will inevitably be a gap between the date of the misconduct and the date of the determination. It will not be unusual for the practitioner concerned to submit that circumstances have changed since the misconduct charged; arguments as to remorse, reform, character change and subsequent good deeds are not uncommon. The practitioner's conduct of the defence and the veracity and candour of his or her testimony will often be the best evidence as to whether these mitigating circumstances are to be accepted.

109 It is often self-evident that the tribunal or court determining fitness to practise might find that the practitioner has lied in the disciplinary proceedings before it. It is also often self-evident that such a finding, if made, might influence the tribunal or court in deciding what order should be made in regard to the practitioner's right to practise. When the practitioner knows that there is a risk of such a finding being made and used by the disciplinary body concerned in determining what final order to be made, and has adequate opportunity to deal with this prospect, there would be no procedural unfairness were the disciplinary body so to act on the finding. This would be the case even though the practitioner may not have been charged with specific misconduct relating to the conduct the subject of the finding. The act of charging the practitioner would be an unnecessary formality.

110 I conclude, therefore, that, in the circumstances I have described, the Tribunal was entitled to take into account, in coming to its ultimate conclusion as to the order that should be made, the findings set out in paragraphs 374-377 of its reasons.

The ultimate disposal of the appeal

111 The headnote to Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 accurately states the propositions laid down by the High Court in that case. It states:

"Not every departure from the rules of natural justice at a trial will entitled the aggrieved party to a new trial. But where there has been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference to the outcome than where the denial related to the opportunity of making submissions on a question of law. All that an appellant needs to show is that the denial of natural justice deprived him of the possibility of a successful outcome. To negate that possibility it is necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result."

112 Mr Brereton submitted that the Appeal Panel had not applied the test laid down in Stead v State Government Insurance Commission. He submitted that the Panel proceeded on the erroneous footing that, before granting relief, it had to be satisfied that the errors made by the Tribunal were of sufficient significance to have affected the result. This submission must be accepted. An examination of the Appeal Panel's reasons reveals that it did apply the test in the terms as submitted by Mr Brereton. The test that it applied was not in accordance with Stead and was incorrect.

113 On the basis of the conclusions set out above and the findings of the Appeal Panel not the subject of this appeal it, I shall assume that the appellant's misconduct did not involve:

(a) deliberately delaying the finalisation of the Wilkinson estate "until such time as his subdivision had been completed".

(b) deliberately concealing the contributory mortgage from the National Australia Bank.

(c) making misleading representations to the Law Society that he was not aware in the latter part of March 1992 that Mrs Roberts property was subject to a first mortgage in favour of the National Australia Bank.

(d) falsely representing to Mrs Fulton that the GLA was a precondition to the release of the estate moneys, by way of distribution, to her.

114 It is, however necessary, to take into account the following:

(a) The appellant preferred his own interests over the interests of Mrs Fulton, to whom (as the executor and trustee of the Wilkinson estate and a solicitor acting in the administration of the estate) he owed fiduciary obligations.

(b) The appellant so preferred his own interests in the following ways:

(i) Without the fully informed consent of Mrs Fulton, he applied $38,000 (being money in his trust account owing to the estate) for his own personal benefit.

(ii) He failed to protect the interests of the estate by ensuring the provision of proper, authorised security for the loan and compliance with the terms upon which interest was payable on the loan.

(iii) He lent the estate moneys in his trust account on the security of a contributory mortgage for his own personal benefit.

(c) The appellant was guilty of neglect, delay and incompetence in the administration of the estate. In particular:

(i) There was no justification for the neglect, delay and incompetence.

(ii) The appellant did not keep Mrs Fulton fully informed of the progress of, and developments in, the administration of the estate and did not account to her promptly for moneys payable to her.

(d) The appellant misled Mrs Fulton about the application, for his own benefit, of the assets of the estate by:

(i) Failing to disclose to her that the estate moneys had been applied for his own personal benefit.

(ii) Falsely representing to her that the GLA was material to the distribution of the moneys of the estate to her.

(iii) Failing to explain the true import of the GLA to her.

(iv) Failing to explain to her that estate moneys had been lent on the security of the mortgage which had been neither registered nor protected by caveat.

(e) The appellant failed to comply with various provisions of the Legal Profession Regulation 1987, the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 and the Legal Profession Act 1987 in the way in which he provided for his sister, Mrs Roberts, to borrow moneys from the estate, which was a client of the firm of which he was a partner.

(f) The appellant made representations to the Law Society which were misleading and attempted thereby to mislead the Law Society in representing to the Law Society, by letter dated 12 May 1993 (written in the course of an investigation leading to the filing of the Information in these proceedings) that Mrs Fulton, by her execution of the GLA, had ratified his conduct.

(g) The appellant made misleading representations to the Law Society that he was not aware that Mrs Roberts' property was subject to a first mortgage in favour of the National Australia Bank.

(h) The appellant attempted to mislead the trust account inspector and the Law Society by giving instructions to Mrs Hayward to place false or misleading documents on the files relating to the Wilkinson estate and the mortgage advanced to Mrs Roberts "in such a manner as to lead an uninformed observer to believe, amongst other things, that certain communications had occurred with Mrs Fulton and that certain efforts had been made to progress the administration of the estate". The documents in question included notes of telephone messages to Mrs Fulton explaining the delays and other documents dictated by the appellant. The instructions included placing a copy of the death certificate for Eileen Gertrude Lenehan on the file so as to form part of a sequence of documents implying that an exchange of correspondence with the executor of the Lenehan estate had occurred when it had not and to cull the Wilkinson file of any indication that the appellant's firm had previously acted in the Lenehan estate.

115 In addition, in determining what order should be made, account can be taken of the findings of the Tribunal that the appellant gave answers that "were at best a half truth", that he "did not make full and frank disclosure", that at the date of the hearing before the Tribunal he had not "accepted his obligation to act honestly and openly in all matters" and that "his evidence concerning the file notes was intentionally false". In my opinion, these matters, while not constituting charges contained in the Information or the particulars thereto, can be taken into account in determining what order should be made in consequence of the misconduct found to have been proved.

116 While none of the findings of misconduct is trivial, two are of particular gravity. These are the findings of misuse of the trust account for the appellant's own benefit and the findings that the appellant placed false or misleading documents in his files relating to the Wilkinson estate and the mortgage advanced to Mrs Roberts.

117 The Appeal Panel dealt with the appellant's misuse of trust account funds as follows:

"200. In that [regard], we emphasise the numerous serious transgressions admitted started with the taking of trust moneys without authority and in an irregular way (to put it at its best light). It is well accepted that the misuse of trust account funds is a matter that will ordinarily call for striking off.

201. The trust account is `sacred': ` trust accounts should be sacred, so that moneys paid into the account should only be paid out to the persons to whom the money belonged, or as directed': In re a Practitioner [1941] SASR 48 at 51.

202. It is no reply that the practitioner intended to pay the money back, and did so. Conduct of this kind remains `an affront to the sanctity of a practitioner's trust account': In re a Practitioner (1982) 30 SASR 27 at 31 per King CJ. King CJ went on to say at 31, responding to the circumstances of that case (short term holding of client funds before payment into the trust account):

`The public can feel confidence in legal practitioners and their handling of their money only if they know that there is involved no element of judgment on the part of the practitioner, and their money must remain in his Trust Account until it is disbursed in accordance with their direction; because no matter how good the intentions of a practitioner might be, no matter how confident he might be that the money can be made good, whenever a client's money is deliberately used for a purpose other than the purpose for which the client entrusts it to the practitioner, there is an act of dishonesty on the part of the practitioner and one which exposes the client to some risk as to his money. There are two aspects of such misuse of trust moneys held for clients (1) the clients are exposed to some risk, great or small, depending upon the situation, as to their money, and (2) there is a dishonest misuse by the practitioner of money which does not belong to him for his own purposes and, of course, free of interest.'

To similar effect, see Dupal v Law Society of New South Wales (unreptd, [NSWCA], 26 April 1990) per Handley JA at 23: `Sympathy for [the solicitor] and for the tragedy that he has brought on himself and his family by his inability to live up to the high standards which this Court and the profession demand of solicitors can not be allowed to deflect this Court from doing its duty': cited with approval by Sheller JA in Law Society of New South Wales v Bannister (1993) 4 LPDR 24 (CA) at 30."

118 In my opinion, the views expressed by the Appeal Panel are entirely correct. The trust and confidence which clients place in their solicitors are a basic element of the administration of justice in this country. Violations by legal practitioners of trust accounts betray that trust and harm public confidence in the legal system. This explains the sacrosanct nature of trust accounts and the acute concern that courts have when practitioners, in breach of their fiduciary obligations, misuse trust moneys for their own benefit (see, for example, Law Society of New South Wales v Bannister).

119 The deliberate falsification of file notes for the purpose of concealing his misconduct from the Law Society, his use of his employee, Mrs Hayward, to construct the skein of deceit that he was contriving, and the careful placement, after the event, of misleading notes, letters and other documents, reveal aspects of the appellant's character fundamentally inimical to fitness to practise as a legal practitioner. He thereby displayed a reprehensible lack of integrity, a willingness to deceive and a willingness to instruct his employee to participate in his dishonest schemes.

120 Mr Brereton submitted that despite these matters the appellant had shown genuine remorse, he had been in practice for eight years since the episode in 1993 involving Mrs Hayward, he had experienced obvious shame, the amount involved, namely $38,000, was not overly large, the abuse of trust moneys and the other matters relating to the Wilkinson Estate related to the same subject matter and there were other mitigating circumstances. In my view, however, the deliberate misuse of trust moneys and the deliberate falsification of the files overwhelm these subsequent mitigatory circumstances. In addition, to these very serious matters have to be added others, namely, that the appellant, in attempting to explain how the files notes came into being, gave deliberately false evidence, was evasive in his answers, did not make full and frank disclosure, and did not accept his obligation to act honestly and openly in all matters.

121 For these reasons I consider that a properly conducted hearing before the Tribunal (or the Appeal Panel) could not possibly have produced a result other than a finding that the appellant is not fit to practise as a legal practitioner.

122 In my opinion, the appeal should be dismissed with costs.

123 TOBIAS JA: I agree with Ipp JA.

124 STEIN AJA: I agree with Ipp JA. Accepting the errors by the Appeal Panel, the plain fact of the matter is that the remaining findings of misconduct are of such gravity that no other conclusion is open other than that the appellant is not fit to practise as a legal practitioner. The appeal should be dismissed with costs.

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LAST UPDATED: 15/03/2004