Ponifasio v Samoa Law Society [2011] WSSC 141 (22 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC-706/11

IN THE MATTER:
of sections 40 and 41 of the Law Practitioners Act 1976.

BETWEEN:

TUALA AUIMATAGI IOSEFO PONIFASIO
Appellant

AND:

THE SAMOA LAW SOCIETY, a body duly established by section 13 of the Law Practitioners Act 1976.
Respondent

Counsel: B Squire QC and S Ponifasio for the appellant

S Leung Wai for the respondent

Hearing: 24 November 2011

Judgment: 22 December 2011

JUDGMENT OF SLICER J

1. The Appellant Tuala Iosefo Ponifasio ("Ponifasio"), a barrister, was found guilty of professional misconduct on 26 November 2010, and suspended from practice for a period of two years. He was granted leave to appeal out of time.
   
2. The Respondent Samoa Law Society ("the Law Society") cross-appealed on the ground that the period of suspension was inadequate and ought be substituted by an order 'striking the Appellant off the role of barristers and solicitors'. The Law Society did not proceed with its cross-appeal and it is dismissed.
   
3. Charges were brought against him by the Secretary of the Law Society by Notice, dated 5 October 2010, which alleged:
   

"1. During the period from on or about 1 May 2009 until on or about 30 June 2009 the Practitioner failed to deposit into his trust account the sum of $8,261.54 being trust money to be held on behalf of his client Tahi Pacific (NZ) Limited and thereby breached his duties under the Law Practitioners Act 1976.

2. During the period from on or about 1 May 2009 to on or about 17 February 2010 the Practitioner had used or applied the sum of $8,261.54 which belonged to his client Tahi Pacific (NZ) Limited for purposes other than those of his client's.

3. During the period from on or about 1 May 2009 to on or about 30 June 2009 the Practitioner failed to account to his client Tahi Pacific (NZ) Limited for the sum of $8,261.54 which belonged to his client and later entered into an arrangement to pay the sum in installments.

4. The Practitioner converted the sum of $8,261.54 which was received on or about 1 May 2009 and which belonged to his client Tahi Pacific (NZ) Limited for his personal use."

4. The Notice was signed by the Secretary of the Law Society. Allegations 3 and 4 were dismissed and are not the subject of this appeal.
   
5. The charges were heard by the Disciplinary Council ("the Council") in accordance with the Law Practitioners Act 1976 ("the Act") Part 8. Initiation of disciplinary proceedings is by the Council, as required by the Act s36, following an investigation provided for in accordance with s35. The Act s37 grants power to 'the Council' to decide the charge and if proven sanction by striking off, fine, submission or censure.
   

The Appeal

6. The grounds of appeal as stated in the Notice are:
   

"(i) the hearing conducted by and before the Tribunal was in breach of the Appellant's right to a fair hearing as guaranteed by Article 9 of the Constitution of the Independent State of Samoa in that the Tribunal was not an independent and impartial Tribunal as required by Article 9;

(ii) the Tribunal failed to comply with the requirements of natural justice and/or afford the Appellant a fair hearing by denying him the opportunity to give evidence in relation to an issue raised by the Tribunal and material to its decision and the penalty imposed upon the Appellant;

(iii) the penalty of suspension from practice for a period of two years was manifestly excessive in the circumstances."

Onus of Proof

7. Both parties agreed that the disciplinary proceedings were civil, but given the serious nature and consequences of an adverse finding, the standard of proof was as stated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, and similar cases (Z v Dental Complaints Assessment Committee [2008] NZSC 55 and cases cited within).
   

Constitutional Issue

8. This challenge is to the validity of the proceedings themselves, and extends to any disciplinary proceedings taken by the Council.
   
9. Disciplinary proceedings are governed by the Law Practitioners Act 1976 Part 8. The Act section 35 provides power to the Council to
   

"...inquire into and determine...any charge of professional misconduct, or of, conduct unbecoming a barrister or a solicitor."

10. The Act section 36 provides for the procedure on inquiry, in which the Council is required to inquire into and determine 'whether the charge is proved or not proved', and gives power to impose sanctions. Each provision uses the term 'the Council.'
    
11. The Appellant contended that the legislative scheme allowed for the same body to act as investigator, prosecutor, Judge and imposer of punishment, and such offended the Constitution of the Independent State of Samoa Act 1960 ("the Constitution") Article 9. The Article relevantly provides:
    

"9. Right to a fair trial - (1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public...

(2) Nothing in clause (1) shall invalidate any law by reason only that it confers upon a tribunal, Minister or other authority power to determine questions arising in the administration of any law that affect or may affect the civil rights of any person.

...

(4)(c) To defend himself in person or through legal assistance of his own choosing and, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice shall require;

(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

12. It was said that the Act Part 8 offended the Constitution and the procedures adopted in relation to the complaints made against the Appellant were invalid. In effect the Appellant, through Ground I, claimed that the Act Part 8 was itself beyond power and rendered void by virtue of Article 9. It had power to delegate power and appoint persons who might exercise that delegated power (s18(3)).
    
13. The Law Society responded to the Article 9 requirement, relying on the Act section 14(2)(a)(b)(c) and (e), taken together with section 18(1)(3) and (4).
14. The model adopted by the Legislative Assembly was one commonly used in other jurisdictions or as replaced by more comprehensive or expansive forms of legislative control.
    
15. The model adopted by the Law Society followed those used in many jurisdictions in the United Kingdom, New Zealand, Australia and other common law countries. The model adopted was not unlike many adopted by other specialist or professional disciplines, including doctors, accountants, optometrists and the like. The varying models have much in common namely
    

(1) A Registrar (here the Registrar of the Supreme Court) maintains a roll of members (section 8);

(2) Legislation establishes and empowers a society of members affording it functions (sections 13, 14);

(3) Those powers and functions include ones of investigation, prosecution and sanction;

(4) Members of the Law Society may elect members of a governing Council or body (sections 15, 16);

(5) A Council is afforded functions, powers and duties (section 18);

(6) The governing body may delegate some of those powers. Here the Council may:

"18...(2) The Council shall have all the powers that are necessary or reasonably expedient for the exercise and performance of its functions and duties, including such powers as may be conferred on it by this Act or by any other enactment, or by rules.

(3) The Council may from time to time in writing appoint committees of members of the Law Society (being persons who are qualified to be officers of the Society) and may delegate to any such committee any of the powers of the Council, and may at any time revoke any delegation.

(4) Subject to this Act, and to rules, the Council may regulate its own procedure in such manner as it thinks proper."

16. In Samoa the Council has delegated its disciplinary powers to identified members of the Law Society to sitting as a 'Tribunal'. The procedure adopted was:
    

(1) investigation by the Council, as permitted by the Act section 35, which states:

"35. Disciplinary powers of Council - The Council may inquire into and determine in accordance with this Part any charge of professional misconduct, or of conduct unbecoming a barrister or a solicitor, relating to any practitioner."

(2) the appointment of a member of the Society 'to present the case against the practitioner' (section 38(3));

(3) the appointment of members of a Tribunal to hear the complaint and decide whether the complaint had been proven;

(4) the right of a practitioner to 'be represented personally or by counsel, and cross-examine witnesses against him or her and call evidence in his or her defence and address the Council on the charge' (section 38(5));

(5) procedures of notice adjournment and the like, ensuring procedural fairness (section 38(1)(4) and (6));

(6) adoption, through legislation, by the Council of the decision of the Tribunal and its enforcement as a decision of the Council (section 38(7));

(7) power and protections for witnesses through delegation, provided for by the Commissions of Inquiry Act 1964 (section 39);

(8) A right of appeal to the Supreme Court (Part 9).

17. The Council had appointed a Tribunal, 'the Tribunal', comprised of a chair and four members. The Council had received a complaint concerning the conduct of one of its members. It decided that the complaint should be investigated. It appointed a legal practitioner to present a case in accordance with the Act section 38(2). It gave notice to the Appellant of these charges in accordance with the Act section 38(3). It provided notice of those charges to the Appellant through its Secretary as required by section 36(3). It permitted representation and the right to give evidence as required by section 36(5). The Appellant, in fact, exercised the right to counsel 'and the giving or adducing evidence'.

(9) The record of proceedings shows, except for the allegation comprised in the ground of appeal 2, no denial of procedural fairness in the conduct of the Tribunal.

(10) The Council accepted the findings and imposition of sanction as determined by the Tribunal and those decisions or determinations were adopted and enforced by the Council in accordance with the delegated power. Nevertheless, it was a decision and sanction of the Council, permitted by statute.

History of Proceedings

18. On 10 February, Tahi Pacific (NZ) Limited ("Tahi Pacific") made a complaint to the Law Society concerning Ponifasio's failure to account to it for moneys recovered from a commercial dispute and due to Tahi Pacific. The complaint alleged that the moneys had been withheld and/or unaccounted for since May 2009. On 2 July 2009, Tahi Pacific and Ponifasio reached agreement that the moneys be paid in four consecutive installments commencing on 2 July 2009, but the agreement was not kept and payment not made until 28 February 2010.
    
19. The matter was referred by the Council to its Disciplinary Committee.
    
20. On 17 March 2010, the Chairman of the Society's Disciplinary Committee advised Ponifasio of the complaint advising that its nature and requesting a response by 29 March. He later granted an extension for the response until 14 May. No response was forthcoming.
    
21. The Disciplinary Committee considered a number of options and on 5 October, the Council decided to lay charges against the Practitioner. Notice of those charges was provided by the Secretary of the Society on 6 October 2010. The notice contained four charges which may be summarised as:
    

"(i) during the period from on or about 1 May 2009 until on or about 30 June 2009 the Appellant failed to deposit funds of $8,261.54 held on behalf of Tahi Pacific (NZ) Limited into his Trust account;

(ii) during the period from on or about 1 May 2009 to on or about 17 February 2010 the Appellant applied $8,261.54 belonging to Tahi Pacific (NZ) Limited for purposes other than his clients;

(iii) during the period from on or about 1 May 2009 to on or about 30 June 2009 the Appellant failed to account to Tahi Pacific for $8,261.54 which belonged to his client;

(iv) the Appellant converted $8,261.54 received on or about 1 May 2009 belonging to Tahi Pacific (NZ) Limited to his personal use."

22. Leung Wai was appointed by the Council as its presenter of the charges in accordance with the Act section 36(3).
    
23. The Disciplinary Committee ("the Tribunal") comprised Leota Schuster and four Tribunal members.
    
24. The Tribunal heard the complaints at a hearing on 4 November, gave an oral judgment on 12 November and a written decision on 10 December.
    

Charge 1 was admitted by the Respondent.

Charge 2 was proved on the balance of probabilities.

Charge 3 was not proved on the balance of probabilities.

Charge 4 was dismissed.

25. Ponifasio was represented by Counsel Sarona Ponifasio. His counsel originally sought a closed hearing but did not pursue the matter upon commencement of the hearing which proceeded in public.
    
26. Counsel for the Respondent consented to the affidavit evidence as filed and did not seek to cross-examine any of the three deponents. The Appellant elected not to give evidence.
    

The Constitution and the Act

27. The primary contentions are:
    

(1) The structure of the Act Part 4 itself offends the Constitution Article 9 and the whole of the proceedings were invalid;

(2) If Part 4 is valid, the proceedings as conducted were, in fact, a breach of Article 9 since some members of the Committee, which had decided the charge, sat as members of the Tribunal.

Validity

28. A grant of power by the Legislative Assembly does not of itself offend Article 9. In the United Kingdom the Solicitors Disciplinary Tribunal is appointed by the Master of the Rolls (Solicitors Act 1974 section 46). It is not a committee of the Law Society (Addis v Crocher [1960] 1 Q.B. 87, affd [1900] UKLawRpKQB 165; [1901] 1 Q.B. 11). Any person, confined in some matters to the Law Society, may make a complaint directly to the Tribunal (the Solicitors Act 1974 sections 9(5), 34(6), 44(2)). With the concurrence of the Master of the Rolls the Tribunal may make rules empowering the Tribunal to elect a solicitor member as its President (the Solicitors Act 1974 section 46(9)) and about the procedure and practice to be followed in relation to the making, hearing and determination of applications and complaints (section 46(9)(b)). These rules are made by statutory instrument (section 46(12)). Every Tribunal must comprise more solicitors than lay members (section 46(6)). Parliament has entrusted power to members of the Law Society which is permitted to decide on an application to the Tribunal.
    
29. The Australian models vary but have common features. These are:
    
    • "a body, commissioner or ombudsman to receive the initial complaints and institute investigations;
      
    • a committee to recommend dismissal of the complaint, minor sanctions or referral to a tribunal for more serious matters;
      
    • a commissioner or ombudsman or a professional association's council to dismiss the complaint, impose minor sanctions or refer the matter to a tribunal;
      
    • a tribunal to deal with serious matters; and
      
    • the right of appeal from the tribunal's decision to the Supreme Court."
      
30. Both models are derived from the inherent powers of the Court to admit qualified persons to practice. In the United Kingdom the power of appointment comes from the inherent jurisdiction of the Master of the Court (Myers v Elman [1940] AC 282). In Australia the inherent power is derived from the Charter of Justice 1823. In Samoa the inherent power is derived from the Constitution Part 6. Parliament has empowered the Law Society to conduct disciplinary proceedings through the Act section 10(1)(a) (removal suspension and restoration of names) on the duty of the Registrar upon receipt of a Certificate signed by the Secretary (defined by section 2 as the 'Secretary of the Law Society) and sections 13, 14. The Council of the Law Society has power to appoint committees and may delegate power to such a committee.
    
31. Here, it has appointed a disciplinary tribunal and referred the charges to it for determination. It has appointed one of its own members to represent it at the hearing of the Tribunal.
    
32. The Act Part 4 does not offend the Constitution Article 9. The Legislative Assembly provided for a model, which in some respects differed from the models adopted in the English, Australian and New Zealand, but maintained the basic requirements for a fair trial. The Act section 11 provides for a right of review.
    
33. It is not necessary to conclusively determine the submission made by the Law Society that Article 9(1) has no application to a disciplinary tribunal. The authority relied upon by the Law Society, namely Dental Council of New Zealand v Bell [1992] 1 NZLR 438, does not assist its argument. As Tipping J observed in that case at paragraph 8:
    

"It should be noted however that the New Zealand Bill of Rights Act refers to someone who is charged with and convicted of an offence. It does not apply in terms to disciplinary penalties such as those which can be imposed on dentists under the new Act."

34. The Constitution Article 9 commences:

"In the determination of his civil rights or obligations or of any charge brought against him for any offence..."

and uses the term:

"independent and impartial tribunal established under the law."

35. That would suggest that the submission ought fail but no definitive determination will be made on this point which can await another day.

Application of Principle

36. The second claim is that some members of the Committee who had framed and referred the charge sat as members of the Tribunal.
    
37. Leung Wai, the Chairman of the Disciplinary Committee was appointed in March 2010 to investigate and report to the Council on the complaint of a former client of the Respondent. On 19 May, he reported to the Committee comprised of himself, Ms Ruby Drake and Mr Patrick Fepulea'i. The Committee reported to the Council and recommended the laying of charges. The Law Society, through its Council, adopted the recommendation and, through its Secretary Rosella Papalii (a statutory officer defined in the Act section 2) gave notice of those charges to the Appellant.
    
38. Leung Wai was charged with the duty to prosecute the charges before the Tribunal.
    
39. The Tribunal comprised by the Chairman, Mr Leota Raymond Schuster, who was also the President of the Law Society, Ms Mareva Betham-Annandale, Ms Rosella Papalii, Mr Samuelu Leslie Petaia and Mr Okesene who were all office bearers or members of the Council.
    
40. The Council itself did no more than accept the recommendation and of itself, appoint the specific members of the Tribunal. Its only exercise of judgment was in its acceptance of the recommendation.
    
41. Papalii did no more than her required statutory duty in giving notice to the Respondent.
    
42. A fair minded person with knowledge of the matter and the operation of the statute would conclude that the process was fair and reasonable. Samoa does not have the resources to develop a more complex model. The Council could, of itself, hear and determine the charges but, in fairness used the Tribunal process. It was empowered to refuse the charging of the Respondent if it determined that the matter was so trivial or insignificant or a product of a vexation litigant but was entitled to consider that they were of such a nature as to require a hearing.
    
43. A reading of the material concerning the proceedings does not show bias or procedural unfairness. The outcome itself, in dismissing the two most serious charges, supports the conclusion that there had been a fair and public hearing within a reasonable time by an independent and impartial tribunal as required by Article 9.
    
44. The Act Part 8 provides for the model to be used for discipline with the legal profession. The matter of complaint concerned Part 7 namely the maintenance of Solicitors Trust Accounts. The nature of the proceedings were protective not punitive (Bolton v Law Society [1993] EWCA Civ 32; 1994 2 All ER 486; The New South Wales Bar Association v Evatt [1968] HCA 20; 1968 117 CLR 177). This was not a matter such as Gisborne Herald Co. Ltd v Solicitor General [1995] 3 NZLR 563, an authority relied upon by counsel for the Appellant.
    
45. The Appellant's argument is based on the principles of perceived bias and/or procedural unfairness. The test for bias was stated in Peniamina v Land and titles Court [2004] WSCA 1 as objective.
    
46. There are a number of ways in testing procedural fairness which include:
    

(1) reasonableness and fairness (Kia v West [1985] HCA 81; 1985 159 CLR 550);

(2) the nature of the inquiry, its rules and the circumstances of the case (Russell v Duke of Norfolk 1949 1 All ER 109).

(3) the perception of a fair minded observer who might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question (Saxmere Co. Limited v Wool Board Disestablishment Co. Limited [2010] 1 NZLR.

(4) acting at the behest of outside bodies (R v Anderson; ex parte 1 pac - Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177).

(5) inference which would lead a fair minded observer to conclude that members of a tribunal would bring other than an unprejudiced and impartial mind to the resolution of the issues which would properly arise in as inquiry (Livesey v New South Wales Bar Association (1983) 151 CLR 188.

(6) the existence of previously expressed opinion and conflicting interests (Vakauta v Kelly [1989] HCA 44; 1989 167 CLR 568).

(7) Breach of duty to afford substantive fairness in the sense of its limits as considered by the High Court in Attorney-General (NSW) v Quinn (1990) 170 CLR 1.

47. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 435, members of the Tribunal had general media interest and involvements. In their joint judgment Mason CJ and Brennan J summarised the existing law and added:

"The second reason for rejecting the appellant's case is that, in any event, even if, contrary to the view which we have expressed, there be a case for holding that a reasonable apprehension of bias attaches to all the members of the Tribunal, the operation of the rule of necessity would ensure that the Tribunal is not disabled from performing its statutory functions. The rule of necessity permit's a member of a Court who has some interest in the subject matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v Proprietors of Grand Junction Canal Pty [1852] EngR 789; (1852) 10 ER 301 at 313. The existence of the principle has been recognised in this Court by Isaacs J in Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243 at 259, and by Brennan and Deane JJ in Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376 at 385-86."

48. That could be said of any member of the Law Society, councillor or not.

49. The Appellant has not established bias, actual or perceived, on the part of the Tribunal.
    
50. Ground 1 ought fail.
    

Natural Justice

51. The Appellant was a qualified lawyer who had first formed his own law firm and has shown through his candidature for office and subsequent business interests that he is intelligent and aware of the workings of governance. He was represented by counsel. He elected not to give evidence at the hearing. His counsel was skilled enough to have Charge 4 of the complaint dismissed on legal grounds. She was able to persuade, through argument, the Tribunal to dismiss the third allegation and the Appellant had already pleaded guilty to the first charge. No challenge was made to the contents of the affidavit evidence.
    
52. The Tribunal had adopted an adversarial process rather than an inquisitorial one permitted by its power of a Commission of Inquiry. As it said in its reasons for decision it:
    

"left it with the parties to argue their own case."

53. During the course of submissions made after the evidence and the election not to give evidence had been received, the Chair raised a number of questions concerning the disposition of the money. Counsel had difficulty in responding to some of the questions and it was at that stage when the Appellant sought to change his election.
    
54. The Tribunal stated the sequence of events in the following terms of its decision at paragraphs 31 - 32:
    

"31. The Tribunal is of the view that the Practitioner is an experienced lawyer and so is his Counsel. He elected not to give evidence right from the beginning of the hearing. He had sufficient time to consider the Affidavit evidence by the Prosecution which was made available to him prior to the hearing. The Practitioner therefore had ample time to consider the case against him and the weight of the evidence. It was not until the Chair of the Tribunal was in the process of concluding his questions about the whereabouts of the money that the Practitioner then advised his Counsel of his wish to give evidence alleging a possible breach of natural justice if his request was not granted. The Prosecution naturally objected. In this case, the Tribunal is of the view there is no such breach of natural justice as the Practitioner was afforded a fair and unbiased hearing, and ample opportunity to give evidence but he elected earlier on during the hearing not to give evidence at all or question the Affidavit evidence of the Prosecution.

32. The Tribunal by majority (4 out of the 5 members of the Panel) declined the Practitioner's application to give evidence at that late stage of the hearing. That being the case, Counsel for the Practitioner closed her case."

55. The last sentence is confusing. If Counsel had closed her case with the election not to call evidence then the matter was at the submission stage and her application would have been that of reopening her case. If she had not closed her case on evidence the Appellant was entitled to change his election. The decision itself suggests the former and the Court will proceed on the assumption that she had closed her case and was in the process of argument. If so there was no denial of natural justice and the question remained one for the discretion of the Tribunal.
    
56. This is an appeal not a rehearing. The Tribunal exercised a discretion not to permit a change of election during submission. The Appellant did not show that the failure to allow him to give testimony would have affected the outcome (A v Professional Conduct Committee High Court of New Zealand CIV 2008-404-2927 Keane J at 64 – 67).
    
57. The Appellant elected not to give evidence, and sought to do so only in the course of final submissions. As the New South Wales Court of Appeal stated in Malfanti v Legal Profession Disciplinary Tribunal, (1993) Legal Professional Reports No. 4, page 17:
    

"It is impossible in my view to lay down a rigid rule. The Tribunal is bound to mould its procedures to enable it efficiently and effectively to carry out its functions in an expeditious manner. In making these comments I have not overlooked the principle that a solicitor who appears before the Tribunal is bound to assist it in its investigations. (see Johns v Law Society of New South Wales [1982] 2 NSWLR 1, per Moffitt P at 6.) I do not hold the opinion, however, that that obligation extends to requiring a solicitor to enter the witness box to furnish a reply on oath to evidentiary material which is incapable of establishing a case of professional misconduct."

58. Here he was entitled to put the information or explanation he had sought to give to the 'trial' hearing in his written submissions as to penalty dated 22 November 2010. It is not clear whether he did so in those submissions at paragraph 8(a)(iv). He was denied a right provided for by the Constitution Article 9.
    
59. The Court notes that the 'installment' agreement itself denotes that the moneys were not within the immediate control of the Appellant as otherwise they could have been repaid on the day of the meeting. The Appellant's failure to honour the terms of the agreement increases the likelihood that they stayed beyond his control. In such a case any explanation could not have altered the conclusion that they had been used for purposes other than those of his client's. There was little, if any, purpose in providing an explanation.
    
60. It might have been preferable for the Chairperson to confine his questions rather than attempting to either have Counsel give evidence from the bar table or at least give explanations on matters of which she had no knowledge.
61. If the above is incorrect then, on the provision of the transcript, I will reconsider the matter.
    
62. I will make an order subject to revocation. I will reserve the question of costs so that the matter remains alive and the Court retains jurisdiction.
    

Penalty

63. The Appellant had pleaded guilty to a failure to deposit the money into his trust account. He prevaricated and failed to respond to requests for information sought by the Society. He prolonged the investigation.
    
64. The Appellant did not reply to the requests for explanation made by Leung Wai. The words of Moffitt J in New South Wales Bar Association v Livesey [1982] 2 NSWLR 237, are appropriate here. Moffitt J said that what might be a minor matter may become serious if the practitioner misleads the authorities and 'a response which is honest and frank in this adversity may well demonstrate that he is a person truly to be relied on'. The same can be said in the case of a lawyer who fails to respond to requests for information. Here the Tribunal was entitled to take that into consideration (See generally Ross & MacFarlane, Lawyers' Responsibility and Accountability 2 Ed. 6.26C; Re Veron; Ex Parte Law Society of New South Wales (1966) 84 WN (NSW) NSWCA 136).
    
65. He had breached the legal requirement of the Act section 32, itself, subject to the ingredient of 'knowingly in subsection (3) a criminal offence.' He had failed to account to his client from May 2009 and July 2009. The money was not paid to the client until 28 February 2010.
    
66. The Tribunal made allowance for the mitigating matters advanced in the written submission. It had the power to order his name to be removed from the roll of practitioners or suspend his right to practice for three years and order a fine of ten (10) penalty units or $1,000.
    
67. The finding on the second charge made his general conduct more reprehensible.
    
68. He provided in the submissions on penalty the information that he had not opened a trust account as of May 2009 but did not attempt to provide the exonerating or mitigating matters which were the subject of the 'election to give evidence' dealt with in Ground 2 of this appeal. He could have done so at the penalty stage.
    
69. The Tribunal was entitled to impose a far harsher penalty. It imposed a penalty more in keeping with the words used in Bay of Plenty District Law Society v Osmond [2003] NZAR 162 relating to the requirement of 'not a fit and proper person' and overall conduct in a strike off application rather than the more stringent 'almost invariably' words used in Bolton v Law Society (supra). There are strict rules governing the conduct of lawyers and demands for the highest honesty in dealing with money (The Council of the Law Society of NSW v Foreman 1994 34 NSWLR 408). Those high standards have long been applied (Incorporated Law Institute of NSW v Meaghan [1909] HCA 87; (1909) 9 CLR 655; applied in Foreman (supra)). Failure to provide a full and frank explanation to an investigating society makes the original misconduct worse.
    
70. The appeal against penalty is dismissed.
    

ORDERS

(1) The appeal is dismissed subject to the terms of the finding made in relation to Ground 2.

(2) Costs are reserved.

________________________
JUSTICE SLICER