A NSW solicitor who had been temporarily suspended over issues with his trust account has successfully applied to the Supreme Court for an order stating that his suspension had expired.NSW Law Society flat-footed over temporary suspension of solicitor … Allegations of deficiencies, falsification and breaches … Time’s up … Due process versus public safety … Nick Bonyhady reports
A NSW solicitor who had been temporarily suspended over issues with his trust account has successfully applied to the Supreme Court for an order stating that his suspension had expired.
Justice David Davies decided that the 56-day time limit on temporary suspensions under the Legal Profession Uniform Law continues to run even if the suspension itself is stayed.
On July 20, 2017, the NSW Law Society temporarily suspended solicitor Robert Remo Balzola’s practising certificate and appointed a manager to his law shop pending a further decision by the society on whether to pursue more permanent sanctions against him.
Balzola is a prominent anti-Islam activist and a campaigner against mosques.
“The solicitor has misappropriated client trust funds, caused deficiencies in trust monies, falsified trust records and breached various requirements of the Legal Profession Act …“
The investigator also formed a view that Balzola had “manipulated trust accounting records in an attempt to avoid detection by issuing receipts from his trust account for funds that were never received”.
That same day, Balzola filed a motion seeking a stay of the council’s action. Seven days later, Justice Julia Lonergan stayed Balzola’s suspension and restricted the society’s practice manager to supervising only the shop’s trust account.
The matter was back before the courts on August 4, when Justice Des Fagan made orders determining which party was to file their evidence first.
For reasons that Justice Davies repeatedly stressed were unknown, the case lagged there as both parties repeatedly agreed to extend the date of a final hearing. The process only restarted on May 18 this year, when Balzola sought a declaration that his suspension had expired.
At the core of Balzola’s submission was s.77 of the Legal Profession Uniform Law, which sets out that temporary suspensions made by the council expire after 56 days.
The council submitted that because its suspension decision had been stayed by Justice Lonergan, the 56 day timer had yet to start running.
Justice Davies preferred Balzola’s view. HH distinguished the suspension, which had been stayed, from the 56-day limitation period placed upon it, which he saw as an independent precondition on the granting of the suspension. Consequently, Davies held that the time limit ran while the suspension did not.
His Honour also observed that nothing prevented the council from beginning proceedings against Balzola for a permanent variation or suspension of his practicing certificate while the temporary suspension had been stayed. This fortified the judge’s belief that his ruling would not unduly prioritise due process over public safety and confidence in the legal profession.
As for the Law Society’s submission that it did not progress towards a more permanent suspension while the stay was in place because it “did not want to do anything which might lead to an approach by the plaintiff to the court asserting an abuse of process”, Davies accepted that the society acted in good faith but otherwise paid the contention scant regard.
Ultimately his Honour concluded, in an impressive flourish of ornate language, that the relief sought by the Law Society had become “as a result of the effluxion of time, largely otiose.”