Re Jenkins [No 2][2022] QSC 61

SUPREME COURT OF QUEENSLAND

1. [1]
   Kristee Victoria Jenkins (nee Allen) applied for admission to the legal profession by application dated 12 March 2021.  By a letter to the Legal Practitioners Admissions Board (the Board) dated 28 March 2021 Mr Jeremy Worcester objected to her admission.^[1]  The Court of Appeal ordered that contested issues of fact be listed for hearing in the trial division.  Mr Worcester was given leave to appear as an objector on his own behalf.  As well, the Board took an active role in the hearing before me pursuing objections of its own.
2. [2]
   The basis of Mr Worcester’s objection was that between 10 October 2018 and 16 April 2019 the applicant misappropriated trust monies, the lawful property of Worcester & Co, solicitors.  The conduct relied upon by Mr Worcester occurred during a period when he employed the applicant.  The Board nominated seven respects in which it was unable to determine whether the applicant had been candid in her evidence.^[2]  These points arise from the applicant’s evidence about Mr Worcester’s objections.
3. [3]
   The structure of this document is to deal first with some background matters as to the applicant’s employment at Worcester & Co, and the ending of that employment; then to deal with Mr Worcester’s ground of objection, and lastly to deal with the Board’s objections.

The Applicant’s Employment at Worcester & Co

4. [4]
   The applicant began working for Worcester & Co in 2007.  In 2012 she began running a separate aspect of the business of Worcester & Co, viz., attending real estate marketing seminars and providing conveyancing services to property buyers.  This aspect of the business was provided under a separate name, LexiLaw.  This was just a business name; the only solicitor was Mr Worcester.  This last point has to be kept in mind when considering the applicant’s evidence.  She incorrectly speaks of LexiLaw as being a separate firm, and of it having an agency agreement to perform work for Worcester & Co. 

The Applicant and Mr Worcester Fall Out

5. [5]
   In 2017 Mr Worcester allowed another conveyancer, Jessica Davis, to set up a similar, separately-run aspect of Worcester & Co’s conveyancing business under the business name Davis Worcester & Co.  The applicant’s perception that Davis Worcester & Co was given work which ought to have been dealt with by LexiLaw caused an irretrievable falling out between the applicant and Mr Worcester.  The most immediate consequence was that from October 2017, by agreement with Mr Worcester, the applicant conducted the LexiLaw business from separate physical premises and was entitled to all the income made under the name LexiLaw.  From October 2017, “Worcester & Co income was mine.  LexiLaw was yours at that stage?--- Yes.” – t 1‑17.  The applicant was also responsible for the expenses of LexiLaw.  The applicant had the day-to-day management of the LexiLaw aspect of the business.  Mr Worcester had very little to do with this part of the business.  Worcester & Co continued to pay the applicant a wage. 
6. [6]
   By 2018 Mr Worcester was contemplating retirement.  The two could no longer work together.  Mr Worcester and the applicant negotiated to sell the LexiLaw business to CJM Lawyers, but a sale did not eventuate.  Instead CJM Lawyers hired the applicant as a conveyancer and took over much of the LexiLaw work under a fee-sharing agreement with Worcester & Co.

Timing of Applicant’s Departure from Worcester & Co

7. [7]
   Mr McLaughlin of CJM Lawyers gave evidence that the applicant resigned from Worcester & Co and started working for CJM on 19 November 2018.  His understanding was that she stopped doing LexiLaw work at that point – t 1-10.  His understanding was that by January 2019 all LexiLaw staff were employed by him, and all LexiLaw files were run by staff employed by CJM – tt 1-10-12.  He did allow that the applicant assisted “in the finalisation of all matters down at LexiLaw” until March 2020.  He was asked, “So you weren’t aware that she was conducting conveyances still at LexiLaw?--- Once all the staff came to me I don’t know how anyone could have conducted a conveyance unless she appointed another agent.” – t 1-13.  I accept that Mr McLaughlin gave honest evidence of his understanding of these matters.  However, it became clear that he did not know all relevant matters.
8. [8]
   The applicant’s evidence as to the commencement of her employment at CJM was unsatisfactory:

“But prior to going to CJM Lawyers you were working at least 38 hours a week?--- At least, yes.

Right.  And that’s what you are calling full-time?--- Yes.

All right.  And then when you went to CJM Lawyers where you started in November 2018 you were working between three to five hours on weekdays; is that right?--- Yes.

So that wasn’t actually full-time work?--- Not at CJM, no.

Right.  But you say in your affidavit material that you were working full-time for CJM?--- Yes.

Can you explain that?--- Yes.  I work a lot, from 7 till 10 pm at night at that stage, and did it – I’m not sure if it says – does it say that I was working full-time for CJM?

Yes.  In document 7?--- So yes, I was working part-time – I was employed on a part-time basis, but I have another agreement with CJM where I get referrals in and I – technically, to answer your question, I agree, yes, I was only working three to four hours, not full-time, at CJM.  Sorry to---” – t 2-55.

9. [9]
   Contrary to Mr McLaughlin’s understanding, the applicant was still working for LexiLaw after November 2018.  Again, the evidence from the applicant is unsatisfactory:

“And you were still working then in Lexi Law – or as – for---?--- I was – I was doing the best that I can with the time that I had to assist with the office, the operation of the office.

So you were still working there in some capacity---?--- Correct.

---on the 31^st of March 2019?--- Correct.

So what were you doing for Lexi Law up till the 31^st of March 2019 while you were employed with CJM?--- Yep.  So I was assisting Amy with conveyances.  I was still receiving emails – bulk amount of emails.  I was distributing those for attention to the other staff.  When there was an overload of – of – of receipts for anything that needed my – in relation to the accounting with Rikki I would assist there.  I would open a file.  I would do anything that was required.

…

Right.  Thank you.  So when did you actually finish working in or for Lexi Law?--- It’s really hard to put a pinpoint on the exact moment that I ceased.  I think it’s – I absolutely had no more involvement was probably when we turned the server off.

And when was that?--- I don’t recall when it was turned off.

Any approximate dates?--- It would have been mid to late 2019, I would say.

So you say that your last payslip [from Worcester & Co] was for the period ending the 30^th of May 2019?--- Yes.

So would that turning the server off then have been the 30^th of May 2019?--- No.

It was after that?--- It was after that.

Okay.  And you also say in your material that Lexi Law ceased trading in April 2019.  Do you recall that?--- Yes, I believe I mentioned that in my affidavit.

Was that accurate?--- Upon reflection, it’s probably not as – not that accurate, no.” – t 2-56.

10. [10]
    Further, contrary to Mr McLaughlin’s understanding, not all LexiLaw files were taken over by CJM.  After May 2019 the applicant was not employed by Worcester & Co (trading as LexiLaw).  Nonetheless she continued to do two agency conveyancing matters under the name of LexiLaw – tt 2-59-63. 

Historical Accounting for Monies Received by LexiLaw

11. [11]
    The history of the way in which monies received by LexiLaw were treated is relevant to understanding the basis of Mr Worcester’s objection.  Mr Worcester says:

“From the date of the commencement of me trading under the ‘split branding’ of LexiLaw, all funds earned by LexiLaw were simply credited to the Worcester & Co trust account with my bookkeeper subsequently attending to the adjustment of expenses and payment of profits monthly. … Thus, for the duration of the operation of LexiLaw … until the time that I gave to Kristee the benefit of the entire income of LexiLaw (in or about October 2017), cheques made out to LexiLaw were banked into the Worcester & Co trust account.”^[3]

12. [12]
    Mr Worcester said there was a protocol governing the division of profits of LexiLaw between him and the applicant until October 2017.  Its essential features were that a profit and loss statement would be prepared monthly, as would statements showing claims on the funds received.  He and the applicant would meet monthly and use these documents to agree a distribution of profits.  The applicant agreed that this protocol applied at that stage of their business relationship – t 1-21.  Her affidavit material was to much the same effect.^[4]
13. [13]
    When LexiLaw moved to separate premises in October 2017, a separate Trust Account and General Account, the LexiLaw Trust Account and LexiLaw General Account were opened.  The account holder was Worcester Pty Ltd, that is the same account holder as the Worcester & Co Trust Account.  From December 2017 cheques made out to LexiLaw were deposited in the LexiLaw Trust Account.^[5]  This made sense because the applicant was responsible for all LexiLaw expenses and entitled to all its income.

Mr Worcester’s Ground of Objection

14. [14]
    Mr Worcester’s objection was that, “Between 10 October 2018 and 16 April 2019 the applicant misappropriated trust moneys … the lawful property of Worcester & Co, solicitors”.^[6]  The objection relates to seven conveyancing matters which were part of the Worcester & Co, not LexiLaw, business.  Mr Worcester asked the applicant to complete the conveyances.  The conveyances were to be conducted as Worcester & Co matters, that is, the client would not receive any letters on LexiLaw letterhead, or any other LexiLaw-branded material – t 1-50.  The applicant was to use staff she employed to run the LexiLaw business – t 1-29.  The net professional fees were to be shared equally between Mr Worcester and the applicant (or their respective companies) – t 1‑29.
15. [15]
    Of the seven conveyances, four were purchases: Dirckx, O'Connor, Teyssier and Washpool.  The remainders were sales: Yu, Leroux, and another matter for Teyssier.  At settlement of the sales, bank cheques in favour of Worcester & Co in the amount of Worcester & Co’s professional fees and outlays were collected from the purchaser.^[7]  On the Dirckx and O'Connor purchases, Mr Worcester held a Power of Attorney from his purchaser clients who were overseas.  On each file he drew a cheque made out to Worcester & Co for the amount of the professional fees and outlays and gave those cheques to the applicant or LexiLaw staff.  On the Teyssier purchase the applicant prepared, or caused to be prepared, a settlement statement which showed funds were acquired from the client for Worcester & Co legal fees – tt 1‑76‑78.  On the Teyssier purchase the client was asked to pay fees to Worcester & Co, but for some reason paid the fees to the LexiLaw Trust Account – t 1‑78.  The applicant prepared or caused to be prepared the settlement statement on the Washpool purchase; it showed funds required for Worcester & Co legal fees – t 1-86.  On the Washpool file the client was asked to pay directly into the LexiLaw Trust Account, t 1-86, and there was no evidence as to who sent that request to the client.
16. [16]
    Mr Worcester complains that the applicant banked the five cheques for professional fees made out to Worcester & Co into the LexiLaw Trust Account.  Further, that, in relation to all seven conveyances, she transferred the funds received for Worcester & Co fees to the LexiLaw General Account, and from there to RiQee Wills Pty Ltd, a company she controlled.  Mr Worcester says that the applicant had no authority to bank Worcester & Co cheques to the LexiLaw Trust Account; she should have banked them to the Worcester & Co Trust Account, and that the clients on the Teyssier and Washpool purchases should have been directed to deposit funds for Worcester & Co fees into the Worcester & Co Trust Account.  Further, that the applicant had no authority to pay the funds to the LexiLaw General Account, and then to RiQee Wills Pty Ltd.  Instead, a process similar to the pre-October 2017 process ought to have occurred whereby there was an accounting between him and the applicant for the professional fees earned. 
17. [17]
    Worcester Pty Ltd was the holder of both the Worcester & Co Trust and General Accounts and the LexiLaw Trust and General Accounts.  However, only Mr Worcester had signing authority for the Worcester & Co Trust and General Accounts.  In addition to Mr Worcester, the applicant, with a co-signatory, had signing authority on the LexiLaw Trust Account and the LexiLaw General Account.  Putting the funds into the LexiLaw Trust Account meant that the applicant could access the funds, rather than be dependent upon a system of profit distribution by agreement, as was used prior to October 2017.  Mr Worcester has never been paid his share of the professional fees on these seven conveyances.  The applicant claims a set‑off and on that basis asserts a right to keep the funds. 
18. [18]
    At a factual level,^[8] I find that Mr Worcester has made out this ground of objection.  The fees belonged to Worcester & Co.  I find that the applicant had no authority to pay Worcester & Co fees to the LexiLaw Trust Account; transfer them to General, and then to RiQee Wills Pty Ltd.  Further, I find that the applicant acted as she did so that she could control the fees in circumstances where that was an advantage to her in financial arrangements consequent upon her parting ways with Mr Worcester.  Further, I find that the applicant deliberately made false statements on oath to attempt to disguise what she had done.  In making these findings, and findings on the Board’s objection, I bear in mind the matters spoken about in Briginshaw v Briginshaw.^[9]  The allegations made against the applicant are serious, but I am comfortably satisfied on the evidence of the matters upon which I make findings against the applicant.  Indeed, many of my findings are based on the applicant’s own evidence.
19. [19]
    It is instructive to look at the progress of the applicant’s response to Mr Worcester’s objection.  I set out all the relevant parts of her affidavits, and then discuss various parts of the affidavit evidence which I find to be false.
20. [20]
    In her first affidavit the applicant said:

“50. Jeremy has alleged that I have transferred professional fees from the Trust Account to myself, without authority, which essentially constitute misuse of trust funds.  This is an untrue statement and it must be noted that no evidence has been provided in support of same.  If such an allegation was in fact true, one should be able to produce a bank statement evidencing that such a transfer took place.

51. After my informal departure from LexiLaw, Jeremy used the remaining LexiLaw staff to complete some of his conveyancing matters under the name of Worcester & Co.  In essence, LexiLaw was acting as agent for Worcester & Co to complete Worcester & Co’s conveyancing matters (‘Agency Matters’).

52. Despite no longer being an employee of Worcester Pty Ltd, I remained the link between Jeremy and the file handlers and assisted with generating the LexiLaw invoices as the remaining staff had little experience on generating invoices, not enough experience on how to deal with trust monies, and no experience in relation to receipting trust monies.  …

…

55. Under Jeremy’s supervision, cheques raised in the name of Worcester & Co were receipted into the [LexiLaw] Trust Account and transferred to the [LexiLaw] General Account for the following reasons:

1. (a)
   Jeremy was in-between bookkeepers …; and/or

2. (b)
   Worcester & Co did not provide its invoice to LexiLaw for payment …; and/or

3. (c)
   the parties have, since inception of LexiLaw, usually adjusted after a period of time rather than individual payments made for respective matters …

…

57. Jeremy’s accusation that I transferred money to myself from the [LexiLaw] Trust Account is untrue because:

1. (a)
   Monies were transferred from the Trust Account to the General Account.

2. (b)
   Despite Jeremy’s concern of my conduct with respect to the Trust Account, I am unaware that he ever brought the matter to the attention of the Queensland Law Society (as required by section 260 Legal Profession Act 2007) or his insurer, let alone remove my access from the said account.

3. (c)
   On 10 September 2020 I wrote to ANZ requesting that my access be removed [from the Trust Account] …

4. (d)
   Neither Jeremy or any of his related entities have served me personally nor his company has served a Claim or Statement of Claim for the alleged amounts owed by me or [RiQee Wills Pty Ltd].” – Court Document 7.

21. [21]
    In her second affidavit the applicant said:

“4. This complaint relates to a few conveyancing matters which were opened by me.  At the time the files were opened I was employed by LexiLaw.  The file was [sic] later handed over to my colleagues as I took a full time opportunity at another firm, CJM Lawyers.

5. After my departure, all LexiLaw staff remained under the direct supervision of Jeremy Worcester (‘Jeremy’). 

6. I was not involved with the negotiation of settlement figures or settlement for the abovementioned matters. 

7.I was never in the physical possession [sic] of the cheques in question.

8. I did not deposit these cheques into the LexiLaw Trust Account.

9. I do not recall providing instructions to the file handler to deposit the Worcester & Co cheque/s that were collected at settlement into the LexiLaw Trust Account.

10. I can, however, confirm that depositing third party cheques into the Worcester & Co/LexiLaw Trust Account was regular practice within the Worcester & Co and LexiLaw practices.

11. The reason for this was because Jeremy was the Principal of both firms [sic] and he had access and control of their respective trust and general accounts.

12. Depositing co-firm [sic] cheques into trust was a regular procedure for many years.  For example, from inception of the LexiLaw firm [sic] until 2017, all fees collected at property settlements for LexiLaw were raised in favour of LexiLaw.  These cheque [sic] were deposited to the Worcester & Co Trust Account as LexiLaw did not hold a trust account in its own right.

13. LexiLaw has previously deposited Worcester & Co cheques into its Trust Account and Jeremy consented to same.

14. I confirm that at the time of these particular transactions, Jeremy was working full time from his home in Gilston, the LexiLaw office was located in Surfers Paradise, I was employed at another firm and Jeremy was in-between bookkeepers.

15. I do not recall having ever received written or verbal instructions from Jeremy, or any other staff member for that matter, detailing how these cheques were to be managed.

16. I am unaware who deposited the abovementioned cheques into the LexiLaw Trust Account.

…

18. With the exception of my wages, LexiLaw General Account did not transfer monies to my personal account.

19. Jeremy’s complaint refers to a period in which I was not under his employ.

20. LexiLaw is a trading name of Worcester Pty Ltd and the account, which is held at ANZ Bank is owned by the Worcester Pty Ltd entity.

21. At all times, Jeremy had access to and control of the Trust and General Accounts.

…

25. RiQee Wills Pty Ltd would provide services to Worcester Pty Ltd and I had authority to transfer monies from the General Account [of LexiLaw] to the account held by RiQee Wills Pty Ltd for such services.

26. In all instances relative to this complaint, the transfers from Worcester Pty Ltd trading as LexiLaw to RiQee Wills Pty Ltd were authorised by Jeremy.

…

28. All of the non-disputed professional fees owed to Jeremy have been transparently disclosed by me to him by emails dated:

1. (a)
   1 April 2019

2. (b)
   16 July 2019

3. (c)
   6 August 2019

…

30. In relation to professional fee adjustments, Jeremy and I, since 2013, have always settled matters by way of adjustment.  This is because it is time efficient and completed on a monthly basis.  We have never issued matter based invoices to our respective companies.

31. When these transactions were due to be adjusted my relationship with Jeremy had disintegrated beyond repair and we could not agree on figures.” – Court Document 15.

22. [22]
    In her third affidavit the applicant said:

“2. Files were ‘handed over’ by me to Aimee Turner.  Aimee Turner (‘Aimee’) who was employed by RiQee Wills Pty Ltd and has been employed as an administration assistant.  [sic] …

…

4. I allocated conveyancing matters to Aimee and she was under Jeremy’s direct supervision from April 2018 until his departure in December 2018.

…

6. The few emails referenced by Jeremy in affidavit affirmed 5 July 2021 … do not evidence that I had carriage of any matters.  The emails relied on by Jeremy are limited with detail.  It is clear that the few emails were sent on my lunchbreak or sent out of my working hours with CJM Lawyers. 

…

13. There were no allegations of misappropriation of trust funds until I applied for admission.  I do not recall having ever been accused of misappropriation of trust funds, or, at the very least, having been asked by Jeremy to return monies to the trust account because he believed monies were incorrectly withdrawn by me.  At all times, Jeremy has demanded that I attend to payment of his fees to ‘him’ and account to the Worcester Pty Ltd bank account, not the LexiLaw Trust Account.

14. I had authority from Jeremy to transfer monies from the LexiLaw General Account to RiQee Wills Pty Ltd for services rendered.  …” – Court Document 19.

Carriage of the Seven Conveyancing Matters

23. [23]
    I find that there were false statements in the applicant’s affidavits which were deliberately designed to give the impression that the applicant had very little to do with the seven conveyancing matters in issue, and thus distance herself from the subject matter of Mr Worcester’s complaint.  Recapitulating from the affidavits above, the applicant swore:

24. [24]
    The settlement dates for the seven conveyances were as follows:

    1. (a)
       Dirckx purchase – 4/10/18
    2. (b)
       O'Connor purchase – 13/12/18
    3. (c)
       Yu Hung Thai sale – 15/2/19
    4. (d)
       Leroux sale – 27/3/19
    5. (e)
       Teyssier sale – 8/4/19
    6. (f)
       Teyssier purchase – 8/4/19
    7. (g)
       Washpool purchase – 11/4/19.
25. [25]
    First, contrary to her affidavit material, all the conveyances were undertaken while Worcester & Co continued to pay the applicant a wage – see [9] above.  Secondly, all were undertaken at a time when, contrary to her affidavit material, she was not working full-time for CJM – see [8] above.  The first of the conveyances was completed before the applicant began working part‑time at CJM.  Thirdly, contrary to her affidavits, there was no evidence that Mr Worcester supervised anyone but the applicant.  Mr Worcester’s evidence was that he allocated the files to the applicant to run and she accepted this, see [27] below.
26. [26]
    Fourthly, contrary to the composite impression given in her affidavit material, I find that the applicant had primary responsibility for the conduct of the seven files.  She opened all the files after receiving instructions to do so from Mr Worcester.  She allocated work on the files to staff who worked for LexiLaw.  They performed much of the work on the files, but under her supervision.  She occasionally asked for assistance from Mr Worcester.  She claims to be entitled to half the professional fees on the matters.^[10] 
27. [27]
    The applicant agreed that she was to look after the files and to supervise LexiLaw staff who worked on them:

“… I said to you, ‘Kristee I want you to look after the files’, and we both accepted that you looking after a file would involve you making use of members of the Lexi Law staff?--- Correct.  Yeah, correct.

… It was agreed that such members of staff will be under your supervision.  Is that correct?--- Yes, and your supervision.  If they had specific questions and I was unavailable, you as a principal were to be available.” – t 1-29.

28. [28]
    The applicant admitted that she supervised the Dirckx purchase – t 1-34.  In relation to the O'Connor matter she said that she “may have” had carriage of the matter – t 1‑46.  She was involved in carrying out the Yu conveyance, but said she did not believe she had “full carriage” of it from “start to finish” – t 1-56.  She prepared the settlement instructions – t 1-58.  She said she had her fingerprints on “the Leroux file” from start to finish, although others performed work under her supervision – t 1-67.  She arranged the settlements on both Teyssier files – t 1-77.
29. [29]
    The applicant denied she had carriage of the Washpool file, but said she assisted in running the matter.  She was shown correspondence from her to the client saying that, “Kristee Allen under the supervision of Jeremy Worcester will have the day‑to‑day conduct” of the file.  Her response to that was, I think, dishonest.  She admitted that she sent the letter but said she sent it on a Saturday, “… so I would have waited until the Monday to hand the file over …” – t 1-82.  That is, her evidence was that she wrote to the client saying she would have the conduct of the file under Mr Worcester’s supervision, but omitted to tell the client that that would only be for what remained of the weekend.

Deposit of Cheques into LexiLaw Trust Account and Transfer to LexiLaw General Account

30. [30]
    There are more false statements in the applicant’s affidavits about these topics.  The relevant parts of the applicant’s affidavits extracted above are:

31. [31]
    First, contrary to what she swore in her affidavits, the applicant’s oral evidence was that she:

    1. (a)
       caused all five of the Worcester & Co professional fees cheques to be banked to the LexiLaw Trust Account;^[11]
    2. (b)
       caused the funds received into the LexiLaw Trust Account on account of professional fees to be transferred to the LexiLaw General Account on all seven of the files.^[12]
32. [32]
    Cross-examination of the applicant also showed that she refused to acknowledge the false statements in her affidavits.  Instead, in a pattern repeated throughout her evidence, she attempted to justify the statements in her affidavits:

“What did you expect was to become of the Worcester & Co cheques?--- Exactly what has happened.  They were deposited into the Lexi Law Trust Account.  They – funds were transferred to the Lexi Law General Account.

…

Thank you.  So you never provided instructions to the file handler to deposit the moneys into the trust account?--- Not on an individual file basis.  There was a discussion that would have gone along the lines of, ‘For the Worcester & Co settlements – the cheques raised at settlement for Worcester & Co, we’re depositing them into trust in payment of the Lexi Law tax invoice that was raised.’

So, just so I understand you correctly, and correct me if I’m wrong, but you just never said to the file handler what was to become of those cheques?--- Not on a file-to-file basis.  We had – there were too many files.

… I’m just talking about the settlement files, yeah?--- But in relation to the Worcester & Co files, a discussion was had with regard to the process and how we were to process those files, and the discussion was that the Worcester & Co cheques were being raised and we were depositing them into the Lexi Law Trust Account.” (my underlining) – t 2-27 – t 2-29. 

33. [33]
    Secondly, it was misleading for the applicant to swear in her affidavits that it was regular practice to deposit third party cheques into the LexiLaw Trust Account.  The only third party cheques the applicant could say were deposited into the LexiLaw Trust Account were cheques made payable to a client being deposited into a trust account for that client – t 2-30 – t 2-32.  I have some difficulty regarding those cheques as “third party cheques”, but in any event, that practice had no bearing on the question in issue on this application, and I cannot think that the applicant was unaware of that.
34. [34]
    Thirdly, I find that it was false for the applicant to swear that LexiLaw had previously deposited Worcester & Co cheques into its Trust Account.  Mr Worcester denied this.^[13]  The applicant prevaricated and was ultimately unable to name any such instance – t 2-31.  It is worth noting that the applicant swore not only that LexiLaw had previously deposited Worcester & Co cheques into its trust account, but also that Mr Worcester had consented to that. 
35. [35]
    Fourthly, the applicant’s swearing to LexiLaw cheques being deposited into the Worcester & Co Trust Account prior to October 2017 is irrelevant to the issues raised in this application.  Prior to 2017 the applicant was running the LexiLaw aspect of the business within the Worcester & Co office and LexiLaw did not have a trust account.  Prior to October 2017, putting the fees into the Worcester & Co Trust Account put them in the control of Mr Worcester (he alone had signing authority), where they remained until distributed by agreement.  In contrast, putting Worcester & Co cheques for the conveyancing fees into the LexiLaw Trust Account put them in the control of the applicant (who had signing authority).  They did not remain there until distributed by agreement.  The funds were moved by the applicant to the General Account, and from there to her company.  I cannot think the applicant was unaware of these material distinctions when swearing to the “regular procedure” above.
36. [36]
    Fifthly, it was false for the applicant to swear that the deposit of Worcester & Co cheques into the LexiLaw Trust Account, and transfer to the LexiLaw General Account, was “under Jeremy’s supervision”.  While it might be true to say that the only solicitor who supervised the seven conveyances was Mr Worcester, it was very clear that he had almost nothing to do with the performance of the work associated with the conveyances – tt 3-38-40 and t 3-43.  In particular, an email from him to the applicant on 23 December 2018 showed that Mr Worcester had discovered that the Worcester & Co cheques on the first two conveyances, Dirckx and O'Connor, had been paid into the LexiLaw Trust Account.  He thought this had been done by mistake and asked the applicant to rectify the mistake.  He took no further action, trusting in the applicant – t 3-59.
37. [37]
    In substance the applicant conceded this in her oral evidence:

“… How do you know that cheques raised in the name of Worcester & Co were receipted into trust under my supervision?--- You were the principal of the firm.  Everything was done under your supervision.

So you’ve made an assumption, have you, that because I’m the principal I supervised the receipting into trust; is that correct?--- Not – maybe not every individual cheque or transaction.  No principal ever can monitor every single transaction.  There’s thousands.  But the staff were under your supervision, yes.  So the – in that instance, yes, I would agree that everything was done under your supervision.

I’ll repeat the question for you.  How do you know the cheques raised in the name of Worcester & Co were receipted into trust under my supervision?--- … You provided the authority to bank the cheques.  Perhaps you could – could you give me your version of supervision?  What do you mean by supervision?

No, I – Ms Jenkins, I’m asking the questions.  Okay.  So you can’t adequately evidence to me that the receipting was done under my supervision?--- Did you see the physical cheques?  No.  Were the staff under your supervision?  Yes.

Well, how do you know that the cheques raised in the name of Worcester & Co were transferred to general under my supervision, once again?  I presume your – well, I won’t presume.  You can answer the question?--- Well you had access to all the bank accounts, Mr Worcester.

The question relates to supervision, Ms Jenkins?--- I’m – I’m getting to it.  I’d expect you to monitor the bank accounts, to make inquiries with staff, to alert us if there was any issues or any – any suspicious transfers, that you would bring it to our attention.  The supervision – how – how do you supervise a firm – how do you supervise every single body in the firm? I’m – I’m – I don’t know the answer to that.  The staff were under your supervision.” – t 2-16.

38. [38]
    This evidence reveals the falsity of what the applicant had sworn, and shows that she refused to acknowledge that falsity.

Authority to Deal With Worcester & Co Cheques

39. [39]
    The applicant swore to various reasons why she deposited Worcester & Co cheques into the LexiLaw Trust Account:

Agreement Authorising Applicant’s Actions

40. [40]
    First, I deal with the biggest discrepancy between this affidavit evidence and the applicant’s oral evidence: the underlined passage above.  Contrary to what she swore in her affidavit material, the applicant’s oral evidence was that she made an agreement with Mr Worcester which authorised her to bank Worcester & Co cheques into the LexiLaw Trust Account and then transfer them to the LexiLaw General Account.  I find that there was no agreement as asserted by the applicant in her oral evidence because:

    1. (a)
       her oral evidence was inconsistent with her affidavit evidence;
    2. (b)
       her oral evidence about the agreement became more elaborate as cross‑examination progressed;
    3. (c)
       her oral evidence was internally inconsistent;
    4. (d)
       her oral evidence was inconsistent with contemporary evidence;
    5. (e)
       I reject the evidence of the applicant’s witness, Ms Savage-Duggan;
    6. (f)
       I accept the evidence of Mr Worcester. 
41. [41]
    Further, I find that the underlined passage at [39] above was also false.  I find that there was an agreement as to how the cheques on these seven conveyances were to be managed.  It was that Worcester & Co (rather than LexiLaw) would process the monies, including these cheques.  I make that finding on the basis of Mr Worcester’s evidence discussed below.
42. [42]
    I will now deal with these points in turn.  Then I will deal with other matters the applicant swore to as supporting the way she dealt with Worcester & Co fees.

(a)    Inconsistency with Affidavits

43. [43]
    The applicant’s new version of events did not emerge at the beginning of her oral evidence.  In fact, early in cross-examination she was taken to the passage underlined at [39] above and she confirmed that it was correct – t 1-26.  However, soon after she said that there was a “loose agreement” in July 2018, and then a subsequent agreement in November 2018 when Mr Worcester began working from home and was not “available to sign cheques for Worcester & Co deposit slips” – t 1-27.  Cross‑examination proceeded, “And you’ve not detailed this other agreement, or a change to an existing agreement, in any of your affidavits, have you ?--- Now that you bring it to my attention, it would – you’re right.  I have not.” – t 1-27. 
44. [44]
    In her final affidavit sworn in the proceeding the applicant swore:

“19. I have previously affirmed many times, Jeremy consented to the way the trust monies were dealt.  Jeremy was the principal of both Worcester & Co Solicitors and LexiLaw and his instructions were followed.

20. This issue is further addressed by affidavit of RikkiLee Savage‑Duggan affirmed and filed 15 July 2021.”

45. [45]
    Of this paragraph I asked the applicant the following questions:

“But that doesn’t actually say this was an agreement, does it?--- No.

It doesn’t give any of the details you’ve given in your evidence?--- No, I believe it may have been provided in previous affidavits.  It would be strange that I wouldn’t have mentioned it prior to this affidavit.” – t 2-36.

46. [46]
    If there were such an agreement as the applicant asserted in her oral evidence, it was remarkable that she swore three affidavits justifying her dealings with the Worcester & Co cheques on other bases than the agreement which was a complete answer to Mr Worcester’s complaints.  However, it is more than that: in the underlined passage at [39] above, the applicant swore to the opposite of what she now says was the case.  These matters were put to the applicant and she offered no satisfactory response – tt 2-34‑35. 

(b)    Elaboration

47. [47]
    The terms of the agreement the applicant asserted for the first time in her oral evidence became more elaborate as cross-examination progressed.
48. [48]
    Mr Worcester’s cross-examination took the applicant to each of the conveyances in chronological order.  The first was Dirckx.  That conveyance settled in October 2018.  The applicant admitted that she caused the Worcester & Co funds to be deposited into the LexiLaw Trust Account and transferred from there into the General Account.  Mr Worcester then asked whether she gave him any notice of that second transfer.  She replied that she did not because there was an agreement in place by then, “That we could transfer the money from trust to general for the efficiency for the – for the end‑of‑month accounting or end‑of‑period accounting” – t 1-39.  She thought this agreement was made in September or October 2018, but soon after seemed to disclaim that position – t 1-40.
49. [49]
    When the same point was reached in relation to cross-examination about the O'Connor conveyance, the applicant said she had blanket authority given orally by Mr Worcester at the end of 2018:

“The discussion that I recall we had was in relation to winding up the accounts the most efficient way that we could do it was that the Worcester & Co cheques would be banked into Lexi Law Trust Account, transferred to the Lexi Law General Account so we could pay off and complete the accounting requirements in relation to the searches and outlays and other expenses.  And then, the professional fees be recorded on the ledger, the excel spreadsheet.” – t 1-50.

50. [50]
    Of course, such an agreement would not necessitate the transfer of all the professional fees to the applicant’s company. 
51. [51]
    Cross-examination turned to the Yu conveyance.  I asked the applicant why she had never paid Mr Worcester’s share of the professional fees in relation to the seven conveyances.  This elicited a description of the September/October agreement as being “very brief” and “very casual” – t 1-65 – and the further information that:

“It was along the lines of, ‘You owe quite a lot of money to the firm.  Can we do a ledger arrangement like we did with the Lexi Law the previous days’ – where we had the profit and loss statement Mr Worcester showed you that one earlier today – ‘Can we do that because your – you actually owe quite a lot of money’.

Who actually owes quite a lot of money?--- Mr Worcester owed Lexi Law a lot of money at that time.  So we did the ledger as, … we were negotiating the figures so that his credits would wipe out his debits … rather than going backwards and forwards …” – t 1-65.

52. [52]
    There was no evidence that the applicant and Mr Worcester were negotiating figures consequent on the applicant and the LexiLaw matters leaving Worcester & Co as at July, September, October, or November 2018.  The first real evidence of such a negotiation begins in April 2019, see [73] below.
53. [53]
    The next day the applicant said:

“The agreement was that I could collect the cheque at settlement and funds were to be deposited into the Lexi Law Trust Account, to then be transferred to the Lexi Law General Account, and your share of – or the Worcester & Co share of the professional fees were to be recorded in the ledger that I’ve referred to previously.” – t 2-4.

54. [54]
    The applicant was then taken to the passage underlined at [39] above:

“How do you reconcile that with the answer you just gave me?--- The arrangement was that it was a blanket authority to do that in relation to the receipt of those cheques, whereas here I think I was referring to specific instructions in relation to – see, usually when you appoint an agent you would give direct instructions – written instructions to the agent detailing how to specifically deal with those cheques.  Lexi Law never received such instructions from Worcester & Co.  I believe in this instance that’s what I would have been referring to.  The previous question was a blanket authority for the in – for the – the practice of the firm, if you like.

The two answers don’t reconcile, though, do they?--- Well, in my understanding they’re asking two different – they’re in relation to two different issues.” – t 2-5.

55. [55]
    This passage is another example of the applicant refusing to acknowledge the false statement in her affidavit and making unconvincing distinctions to try to justify it.
56. [56]
    Later in her evidence the applicant said the agreement extended to her transferring all the professional fees to RiQee Wills Pty Ltd:

“… you’re saying now that you told me about a spreadsheet arrangement, and you told me that shortly … prior to my departure at the end of December 2018?--- I think what I was – what I said on Tuesday – well, what happened – what I recall was that we had the discussion in September/October.  We were preparing for---

Not what you said on Tuesday, Ms Jenkins.  What you said just now?‑‑‑ I’m getting to that.  You gave me the authority – the blanket authority in around September/October when we were – when we were preparing the office to close down, my departure and your early – your retirement.  That’s when we had this discussion.

And did that – did our alleged agreement deal with or contemplate transfer of moneys from – relevant moneys and professional fees moneys for the conveyances from Lexi Law General Account to RiQee Wills Proprietary Limited?--- Again, that’s a separate issue.  They’re two separate things.  The Worcester & Co portion of the professional fees raised were recorded in the Excel spreadsheet.  Lexi Law used the services of RiQee Wills, which it paid its invoices.  That was – RiQee Wills provided the office, some staff, various other things, but it wasn’t professional fees transferred on an individual basis to RiQee Wills; it didn’t work like that.

MR WORCESTER:  I don’t want to be difficult, but I’ll just repeat the question for you, and it was this – because I don’t think you’ve answered it.  Did the alleged agreement deal with or contemplate transfer from Lexi Law general account to RiQee Wills Proprietary Limited?--- Well, yes.” – t 2-9.

57. [57]
    The applicant was taken to paragraph 55(b) of Court Document 15 ([39] above) and was asked:

“… And it was a term of the agreement, according to you, that I had to furnish you with an invoice for my share of professional fees; is that correct?--- I don’t believe I’ve said that.

Beg your pardon?--- I don’t think that that paragraph says that; it just says:

        At no point in time have you furnished me with an invoice.

Did you expect me to furnish you with one?--- Well, yes.

And that was a term of the agreement also?--- Well – which agreement are you referring to, I’m sorry?

The agreement that you say governed our relationship in relation to the seven conveyances?--- Well, the payment would likely have come from the service company, which would’ve been RiQee Wills Proprietary Limited.  I don’t – or – or Lexi Law, I’m – I’m – but it’s usual practice that an invoice is raised and that’s how a payment – that’s how you pay an invoice; you have to receive the invoice in order to pay it.” – t 2-10.

58. [58]
    On the second day of trial, during cross-examination about the generation of LexiLaw tax invoices, the applicant swore that the agreement she reached with Mr Worcester included a term that she would produce legal fee invoices in the name of LexiLaw – t 2-14.  This was in the context of sustained cross-examination as to why the applicant generated LexiLaw tax invoices on Worcester & Co matters and at a time when the applicant had given several different conflicting reasons, see below.  In my view, her assertion that it was a term of the agreement with Mr Worcester that she produce a LexiLaw tax invoice was simply a rather desperate casting around for a reason to justify the production of the invoices, where she did not wish to reveal the real reason.
59. [59]
    Part of the agreement sworn to by the applicant in evidence was that she would keep a record on a spreadsheet as to all the matters which bore on the calculation of net professional fees on the seven conveyances so that there could be a distribution.  However, she said that the agreement between herself and Mr Worcester was silent as to when the distributions would be made.  She said that the amounts involved meant that it “wasn’t worth doing” once a month and that “we both agreed that that was the case” – t 2-11. 

(c)    Internal Inconsistency

60. [60]
    Twice the applicant appeared to give oral evidence which was inconsistent with there being such an agreement as she alleged.  The first of these was as follows:

“… Consistent with the files – consistent with the files intended Worcester & Co status, I informed you that Worcester & Co would process all associated moneys and we, or our respective trusts or companies would subsequently share the net professional fees equally?--- Yes.

Is that – that correct?--- That’s correct.” – t 1-29.

The second of these occasions is referenced at [107] below. 

(d)    Inconsistent with Contemporary Evidence

61. [61]
    The contemporary evidence is against the agreement the applicant asserted in her oral evidence.  Mr Worcester sent the applicant an email on 23 December 2018.  It read:

“I have a meeting with my new (closing down phase (sort of)) bookkeeper (Janice Porter) tomorrow with a view to getting my accounts in order.

In reviewing files and in preparation for the meeting I have noticed that Rikki seems to have transferred all fees and outlays on Dirckx (180630), Longhurst (180640) and O'Connor (180819) totalling $14,009.69 to LexiLaw.  I certainly did not authorise the payments or sign any associated cheques.

I cannot see a corresponding payment back to Worcester & Co for the professional component.

So that my books are properly put in order by Janice would you please make the reimbursement so that the ledgers get ‘squared’?”^[14]

62. [62]
    The applicant replied:

“I have a ledger with all costs to date and income received et cetera on Excel spreadsheet.

…

Okay to ‘square up’ when we’re all back from holidays?  I’m hoping to enjoy the break this year and don’t particularly wish to dive into this right now.”^[15]

63. [63]
    Mr Worcester failed to follow up this issue.  He assumed the applicant would remedy the error he had drawn to her attention – t 3-59, and see t 3-40.  He trusted her – t 3‑43.
64. [64]
    Of this email exchange, in cross-examination, the applicant told Mr Worcester that she thought, “… you were just concerned about the transfer of professional fees.  It’s not client – well it’s professional fee components only.” – t 2-30.
65. [65]
    I took the matter up with the applicant later in cross-examination:

“Right. Have you still got the email of the 23^rd of December there?--- Yes.

That paragraphs starts, ‘In reviewing files’?--- Yes.

That makes it pretty clear that Mr Worcester is saying that he had not authorised the Worcester & Co cheques to go into the Lexi Law Trust Account?--- Yes.

You don’t address that at all in your email to him?--- That’s right, your Honour.  In reading this, I took it as he was concerned as to the whereabouts of the professional fees.

You couldn’t – I’m putting to you, you couldn’t read the paragraph starting, ‘In reviewing the files’, that way.  He’s complaining---?--- Okay.

--- that the – well he is, isn’t he?--- I agree, yes, he’s complaining.

How is it that you didn’t do something? Because you said that he’d orally told you that that was what was to happen and here he is saying, ‘This is happening.  I never authorised that’?--- I – yes.  Perhaps an oversight by myself, your Honour.  I – I should have addressed that issue in my reply, however, I didn’t.  I took it that it was just in relation to the fees.  He was wanting to know the whereabouts of the professional fee components of those matters.” – t 2-32.

66. [66]
    Counsel for the Board returned to this matter in her cross-examination and the following exchange occurred:

“So if we accept for the moment that that’s correct – that you thought in September/October that you had that authority---?--- Mmm.

---doesn’t this email of the 23^rd of December in 2018 put you on notice that that isn’t Mr Worcester’s view of the agreement?--- You could say – you – that – you could say that.

I do say that, Ms Jenkins?--- Okay.

You’d agree, wouldn’t you?--- Well, put like that, yes.

Okay.  And yet, there were other files that settled after that 23^rd of December ...  And yet, despite being put on notice that Mr Worcester did not view that you had blanket authority to put the funds into the trust account and then transfer them to general, you continued to operate in that way?--- Yes.

I put it to you, Ms Jenkins, that you were doing that to ensure that you got the fees and not Mr Worcester – that you had control of them.  You’ve acknowledged that you owed his share, but that you had control of the fees?--- That is one way you could look at it, yes.” – t 2‑87.

(e)    Evidence of RikkiLee Savage-Duggan

67. [67]
    Ms Savage-Duggan was a bookkeeper working for LexiLaw at the time of the seven conveyances.  She was called by the applicant.  Ms Savage-Duggan was an unimpressive witness.  Her animosity to Mr Worcester was undisguised.  She spent much of her time openly scowling at him and many of her answers to his cross‑examination were delivered scornfully.  I also formed the view that, irrespective of whether or not she wished to co-operate in the process, she struggled with it intellectually.  I do not accept her evidence was reliable.  I explain why.
68. [68]
    Ms Savage-Duggan said she had a conversation with Mr Worcester which she placed in November 2018, although she was not sure of the date.  She said Mr Worcester told her to “… put all the cheques into the Lexi Law for those conveyancing matters because that’s where they were all done from – was the Lexi Law PracticeEvolve software.  So they were all done under Lexi Law” [sic] – t 3‑20.  This statement on its face is part recollection; part reconstruction, and part explanation to the questioner.  In cross‑examination she was assertive but unconvincing about this matter.^[16]  Her reconstruction seems to be based on the assumption that the conveyances were LexiLaw branded matters (which they were not), or that there were LexiLaw invoices (Evolve software) on the conveyancing files.  There were, but only after the payment for fees had been made, see below.^[17]  She swears that within a day or two of this conversation the applicant had told her that she had had the same conversation with Mr Worcester – t 3-21.^[18] 
69. [69]
    Like the applicant, Ms Savage-Duggan did not quite swear in her affidavit to the instruction she swore to in her oral evidence.  All she says in her affidavit is that she requested instructions on how to “receipt the cheques for fees received” and was told to keep a record of everything on a central register and, further, that Mr Worcester told her that funds could be transferred from the LexiLaw Trust Account to the LexiLaw General Account so that “expensive outlays” could be easily accounted for.^[19]
70. [70]
    I asked Ms Savage-Duggan whether or not money could come out of Trust and into General to pay for professional fees (as opposed to expensive outlays).  She could not recall – tt 3-30-31.  Given that there were no expensive outlays – see [91] below – and Ms Savage‑Duggan could not recall what the situation was as to professional fees, her evidence does not support the applicant as to transfers from the LexiLaw Trust Account to the LexiLaw General Account.
71. [71]
    Ms Savage-Duggan was insistent that Mr Worcester knew that Worcester & Co cheques were being deposited in the LexiLaw Trust Account – t 3-9, t 3-17, t 3-29 and t 3-30.  When asked how she knew she said:

“There were discussion – he knew things, like, what was being done for his files, and he knew that we were depositing the money.

… There were conversations. 

… Possibly.  I cannot – I cannot recall the conversations I had around that part.  But all I know is that he was definitely aware.

… So do I take it from that you’d had a general conversation about it, but not necessarily a conversation each and every time it
happened?--- Correct.” – t 3-26.

It seems that the general conversation (singular) to which she was referring was the conversation she puts in November 2018 – t 3-26.  In fact I find that Mr Worcester was not aware that Worcester & Co cheques were being deposited into the LexiLaw Trust Account.  That was his evidence (see below) and I accept it as honest.  The email of 23 December 2018 is contemporary evidence of his knowledge. 

72. [72]
    In her affidavit Ms Savage-Duggan swore that Mr Worcester told her to keep a record of everything on a central register, “So we opened up a – a – sorry, what do you call – a Excel spreadsheet, and it was central – we all had access to it.” – t 3-21.  But when asked who instructed her to prepare the register she showed she could not really remember – t 3-21 l 46 – t 3-22 l 10.
73. [73]
    Ms Savage-Duggan swore in her affidavit that Mr Worcester asked her from time to time to email him a copy of that Excel spreadsheet and she did so, and also provided him with a printed copy on occasions when he attended the office.  She gave evidence of very precise memories as to this – t 3-67.  Mr Worcester denies this and I prefer his evidence; it is consistent with the email of 23 December 2018.  Further, the applicant and Mr Worcester both say that the applicant first sent a version of the spreadsheet to Mr Worcester on 1 April 2019 – t 2-89 and t 3-61.
74. [74]
    The concept of “expensive outlays” was one introduced into evidence by the applicant in her oral evidence – t 1‑31.  It is an unusual expression.  It is inaccurate in this case, as detailed below at [79].  Both the unusual expression, and its inaccuracy, make me wonder whether the applicant had input into drafting Ms Savage-Duggan’s affidavit.  Ms Savage-Duggan denied anything like this occurred – t 3-31.  I have serious reservations about this.  There were other such indications.  Ms Savage-Duggan now works with the applicant at CJM Lawyers.  It was the applicant who got her this job when LexiLaw was wound up.^[20]  There was an unusual word in inverted commas in Ms Savage-Duggan’s affidavit which she could not explain.  She speculated, “… one of the law clerks in our office drew it up for us – drew it up for me because I didn’t know how to put it into an actual affidavit” – t 3-31.  There is also the coincidence that both the applicant’s affidavit and Ms Savage-Duggan’s affidavit did not assert an oral agreement as to the dealing with Worcester & Co professional fees, but that both the applicant and Ms Savage‑Duggan gave oral evidence of such an agreement.  Ms Savage‑Duggan’s affidavit contained two false statements of fact similar to those which the applicant made: (a) that the applicant began working full‑time at CJM in November 2018, and (b) that it was Aimee Turner who managed the seven conveyances “in Kristee’s absence until their completion”.^[21] 
75. [75]
    Ms Savage-Duggan’s evidence was inaccurate in another important respect.  Ms Savage-Duggan said that she ensured that LexiLaw tax invoices were sent to each of the clients before funds were moved from the LexiLaw Trust Account to the LexiLaw General Account – t 3-26.  However, it is clear that she really had no memory of that – t 3-26.  In fact I find that LexiLaw invoices were not sent to the clients – see below.

(f)    Mr Worcester’s Evidence

76. [76]
    In his initial affidavit sworn in this proceeding Mr Worcester said, “My arrangement was with Kristee directly and she was, subsequent to me processing such funds, to receipt a fixed percentage of my professional fee on a contract basis, not an agency basis.  Kristee has never been authorised to simply take cheques made payable to Worcester & Co and then account to herself for any part of those cheques, let alone the entire amount”.^[22]  In his oral evidence Mr Worcester said that the agreement by the applicant to complete the seven conveyances “involved the money being processed by Worcester & Co … The receipt of funds into the Worcester & Co trust account for settlement, if necessary, the receipt of funds into Worcester & Co account for costs and outlays, if necessary” – tt 3-42-43.  Mr Worcester put a similar proposition to the applicant and she agreed with it – [60] above.  The email of 23 December 2018 and the applicant not replying to the substance of it, is contemporary evidence supporting Mr Worcester’s evidence.
77. [77]
    Mr Worcester’s evidence that the professional fees were to be deposited into the Worcester & Co Trust Account is logical: the cheques were payable to Worcester & Co, and more generally the matters were, and were branded as, Worcester & Co matters.  The broad division between LexiLaw matters (yours) and Worcester & Co matters (mine) – [5] above, is relevant here.  These were not LexiLaw matters, the fees belonged to Worcester & Co.
78. [78]
    Mr Worcester’s evidence was that he never authorised the deposit of Worcester & Co cheques into the LexiLaw Trust Account,^[23] and I accept his evidence.  He also says, and I accept, that it had never been either regular or irregular practice to deposit Worcester & Co cheques into the LexiLaw Trust Account.^[24]
79. [79]
    Mr Worcester said there was no agreement about when profits were to be distributed but “history dictated that we usually did it at the end of every month” – t 3-43.  This was a reference to the pre-October 2017 process described at [11] above. 
80. [80]
    As to transfers from LexiLaw General Account to RiQee Wills Pty Ltd, Mr Worcester says that he never consented to such transfers but that, “It was of no moment to me post‑2017 whether [the applicant] made such transfers from the LexiLaw General Account to RiQee Wills Pty Ltd provided of course, that such transfers were of funds legitimately transferred into the LexiLaw General Account in the first place, and against which no third parties had trust claims”.^[25]
81. [81]
    Mr Worcester denied having any conversation of the type alleged by Ms Savage‑Duggan.  He said it was not possible first because “the subject matter [of her evidence] is not true” and secondly because he would not have had that discussion with a junior bookkeeper – t 3-41.  He said his conversations pertaining to the conveyances were with the applicant, not with Ms Savage-Duggan.  Mr Worcester denied that Ms Savage-Duggan and he ever spoke about a central register or spreadsheet either when he was in the office, or by telephone or email – t 3‑45.  I prefer his evidence to that of Ms Savage-Duggan.
82. [82]
    Much of the cross-examination of Mr Worcester by the applicant’s counsel was about his professional conduct, rather than the substance of the matters on which his evidence differed from the applicant’s.  Mr Worcester was quite candid in admitting that he ought to have supervised the applicant, and in particular her dealings with the LexiLaw Trust Account and General Account, more than he did.  He ought to have taken more interest in what the applicant was doing after he found the discrepancies which caused him to write the email of 23 December 2018.  He did not.  He was busy with other matters; he was retiring, and he trusted the applicant. He agreed that when he became aware of irregularities with the LexiLaw Trust Account he ought to have notified the Queensland Law Society (QLS), but that he did not.  I think he was candid enough in his evidence that to do so would have created trouble for both the applicant and himself.  I accept that that was why he did not raise the matter with the QLS, rather than because in fact there were no unauthorised dealings with the Trust Account (as the applicant submitted). 
83. [83]
    Mr Worcester accepted that after 1 April 2019, when the applicant presented what she called a ledger of claims, he did not protest about her handling of Worcester & Co monies but attempted a pragmatic settlement of the matter.  In his affidavit material, Mr Worcester says that by 1 April 2019 he had “commenced to make serious enquiries about Kristee’s handling of trust monies” and that he had raised these issues with the applicant.^[26]  He gives a history of how his attempts proceeded.  In fact the email of 17 January 2020 (below) is an example of Mr Worcester protesting about the applicant’s taking money from him “unlawfully”. 
84. [84]
    In the circumstances, I do not interpret his failure to protest more than he did about the misuse of trust funds or his failure to, say, commence proceedings against the applicant for debt, as something which demonstrates that the position he has taken in this proceeding is new or false.  I think that his attempting to deal with the applicant to simply resolve the matter of monies outstanding was pragmatic and understandable.
85. [85]
    I accept that Mr Worcester’s evidence in this proceeding has been honest.  In particular, I accept his evidence that there was no agreement, as asserted by the applicant and Ms Savage‑Duggan in their oral evidence, and no authority from him to bank Worcester & Co cheques to the LexiLaw Trust Account.  I accept that the arrangement as to these cheques was as he swore.

Further Matters said to Support Applicant’s dealing with Fees

86. [86]
    I now turn to other matters raised by the affidavit material extracted at [39] above, and in the applicant’s oral evidence, said to justify the way she dealt with Worcester & Co fees.  I find that the applicant’s evidence about these matters was false and deliberately so.  I deal with these matters in the following order:

7. (g)
   lack of Worcester & Co bookkeepers and Worcester & Co’s inability to deal with funds and transfer money;

8. (h)
   lack of Worcester & Co invoices;

1. (i)
   necessity to deal with “expensive outlays”;

10. (j)
    inability to prepare Worcester & Co invoices.

(g)    Lack of Bookkeepers

87. [87]
    When asked about the facts she swore to at paragraph 55(a) of the extracts at [39] above, the applicant agreed that by August 2018 Mr Worcester had accountants performing the work of his erstwhile bookkeeper.  The earliest of the seven conveyances settled in October 2018; the last in April 2019.  Nonetheless, the applicant said that the new accountants were inexperienced and not an adequate replacement for the previous bookkeeper, “So in this instance – this is part of the reason why it was also agreed that I would handle the accounting of the fees, because Mr Worcester’s then bookkeepers were flat-out busy, were unfamiliar with the legal software that was being used, whereas I had – I had all the knowledge that was required to complete the tasks and easily reconcile accounts.” – t 2-18. 
88. [88]
    The first observation must be that this is different to what is sworn in her affidavit.
89. [89]
    Secondly, the objective evidence does not support the idea that Mr Worcester’s new accounts team was unable to perform basic functions.  Settlement monies were credited to the Worcester & Co Trust Account where Worcester & Co acted for the purchasers on the matters of Dirckx and O'Connor.^[27]  The evidence in relation to the Yu matter shows that at settlement a cheque made out to Worcester & Co for the proceeds of sale was received; this was banked into the Worcester & Co Trust Account – t 1-58.  A second cheque received at settlement was for professional fees, made out to Worcester & Co, and banked to the LexiLaw Trust Account – t 1-59.  I can put the matter no better than it was put in submissions on behalf of the Board:

“In response to a question as to why one cheque was banked into the Worcester & Co Trust Account and not the other, the applicant said that the agreement was only in relation to professional fees.  That response is incomprehensible if the reason for Worcester & Co funds being banked into the LexiLaw Trust Account was Mr Worcester’s lack of bookkeeper and his inability to transfer money, because the net sale proceeds would have to be sent to the client.”^[28]

(h)    No Invoice from Mr Worcester

90. [90]
    As to this, Mr Worcester and the applicant had the following exchange in which the applicant conceded that there was nothing in this:

“You say that:

Trust moneys were transferred to general for the following reasons.

One of those reasons is you didn’t have an invoice?--- I do say that.

And my question to you is does the absence of that invoice constitute justification for receipting the moneys raised?--- Receipting the monies into general?

Receipting the cheques raised?---  Receipts the money into general, no.

Doesn’t – the absence of the invoice doesn’t constitute some sort of justification to you, does it?--- For depositing cheques into trust, no, but it does from general to Worcester & Co.

The absence of an invoice justifies that?  That’s your position?--- No, I – I think – I think I just said the absence of an invoice – of a Worcester & Co invoice to Lexi Law does not justify the transfer from trust to general.” – t 2-20.

(i)    Expensive Outlays

91. [91]
    In her oral evidence the applicant said that a reason for banking Worcester & Co cheques into the LexiLaw Trust Account and then paying them to General was to pay for “expensive outlays” – t 1-59.  This was not something she swore to in her affidavits.  It was put to her that in total the outlays across the seven conveyances amounted to just over $2,000.  She did not quarrel with this – t 2-19.  The evidence of outlays was collected by the Board in its submissions.  There were no expensive outlays.^[29] 
92. [92]
    The applicant agreed in cross-examination that outlays could have been dealt with by rendering an account to Worcester & Co for payment – t 2-19.  That is, it was not necessary to deposit money into the LexiLaw accounts to pay for outlays.  Logically, if the only necessity was to pay for outlays and monies had been deposited into the LexiLaw Trust Account, only the amount of outlays needed to be transferred to General, and then out from there. 

(j)    Inability to produce a Worcester & Co Invoice

93. [93]
    The applicant said she was not able to prepare a Worcester & Co invoice because she had no access to the Worcester & Co software.^[30]  She conceded that she could have prepared such invoices manually, but said she was too busy – t 2-46.  However, she later conceded that Ms Savage-Duggan was producing Worcester & Co invoices in relation to other matters – t 2-48.  Ms Savage-Duggan confirmed that she could prepare Worcester & Co tax invoices and did so, at least for the period September to November 2018 – t 3-24 and t 3-25, and exhibit 22 provides corroboration of this.
94. [94]
    I do not accept that the applicant was unable to produce Worcester & Co invoices.  Even if she were, that necessitated her reaching some agreement with Mr Worcester or the Worcester & Co bookkeepers.  It did not justify putting Worcester & Co monies into the LexiLaw Trust Account and, even less, transferring that money to her company.

Issuing LexiLaw Tax Invoices

95. [95]
    There is a separate body of evidence in relation to this topic which emerged during cross-examination about Mr Worcester’s objection.  I formed the view that the applicant gave deliberately dishonest evidence designed to obscure the reason why, oddly, on Worcester & Co branded matters, there was a LexiLaw tax invoice on each file.
96. [96]
    On each of the seven conveyancing files there was a LexiLaw tax invoice.  I find the applicant prepared, or caused to be prepared, each of them.^[31]  The question explored at the hearing was why that was done.
97. [97]
    The first time the matter was raised the applicant’s evidence looked like this:

“That’s consistent – the preparation of tax invoices is consistent with me setting and informing you of the professional fees from time to time for each of the seven conveyances?--- So, Lexi Law, you would tell us the fees and Lexi Law would generate the invoice.  We couldn’t generate – I – we couldn’t do a Worcester & Co invoice, we generated a Lexi Law invoice at the completion of every matter.

Why couldn’t you generate a Worcester & Co invoice?--- Because I didn’t have access to your server …” – tt 1-30-31 (my underlining).

98. [98]
    As discussed at [93], the underlined part was not true.  The passage continued:

Isn’t the preparation of Lexi Law tax invoices completely inconsistent with the fact that these were Worcester & Co files and they were to be badged as Worcester & Co files and processed as Worcester & Co files?--- No.

It’s not inconsistent?--- Well, no, because Lexi – the agreement was that Lexi Law owed the money to Worcester & Co, right.  At – in order for – for us to complete the matter the arrangement was that the moneys would be collected.  So in this – we’re getting to it, but it was a Worcester & Co cheque, it was deposited into the trust account.  If it was--- t 1-31 (my underlining).

99. [99]
    As discussed above, the underlined part was untrue.  The passage continued:

HER HONOUR:  Can you stop a minute.  Why would it be a Worcester & Co cheque if the invoice was a Lexi Law invoice?--- Yes.  So it was – when we would attend settlement we would appear as Worcester & Co.

…

How would the client come to write a cheque to Worcester & Co if the invoice to the client was from Lexi Law?--- That’s the thing, your Honour.  Mr Worcester was the power of attorney for the client for most of the matters.  He drew the cheque from his own trust account, provided the cheques to us, this is on a couple of matters, he provided us the Worcester & Co cheques, we banked them into Lexi Law, Lexi Law generated a tax invoice, the funds were transferred from trust to general, and the reason we did that was so that we could pay out all the outlays …” – tt 1-31-32.

100. [100]
     There are two matters.  Mr Worcester was power of attorney for the client on only two matters, Dirckx and O'Connor.  The funds were not dealt with so that the applicant could pay outlays, [91] above. 
101. [101]
     The passage continues:

“… Well, in relation to the seven files there’s a couple where the client, I think, attended our office with cheques.  There was one, too, that may EFT’d funds to the Lexi Law Trust Account.  I think one was we collected at … the sale … So there was various ways in how the moneys were collected. But essentially, the funds were given to Lexi Law for the purposes of banking.

Into whose account?--- The Lexi Law Trust Account, otherwise, why would I need the cheques?  Why wouldn’t he keep them?” – t 1‑32.

102. [102]
     The applicant admitted that the rhetorical question at the end of that passage of evidence could only apply to Dirckx and O'Connor.  These clients were asked to deposit funds for the purchase, for stamp duty, for other outlays, and for professional fees into the Worcester & Co Trust Account.  The applicant’s point was that if Mr Worcester wished the funds to stay in the Worcester & Co Trust Account, it was odd that cheques for professional fees would be drawn up – t 2-80.  Mr Worcester was not asked why he did this.  If there had been an agreement, as the applicant orally alleged, shortly before Dirckx and O'Connor settled, the logical thing would have been for Mr Worcester to draw cheques made out to LexiLaw.  But he did not.  He drew cheques made out to Worcester & Co.  He intended that the cheques made out to Worcester & Co were to be banked into the Worcester & Co Trust Account; the two purchases Dirckx and O'Connor, were the subject of his letter of 23 December 2018.
103. [103]
     In cross-examination about the first of the conveyances, Dirckx, Mr Worcester asked about the LexiLaw tax invoice:

“Was it given to the client and, if so, when and by what manner?--- I don’t have the file, Mr Worcester.  You have the file.

So you don’t know?--- I don’t – I don’t know. 

…

… I don’t know – not sure how to respond to that but, no, I – I don’t recall.  Sorry, what was the question?

MR WORCESTER:  The question was regarding the tax invoice was it given to the client, firstly, and then I went on to say---?--- I don’t know that it was---

---when and by what manner?--- I don’t know.  I can’t confirm or deny that – that Karen or Lexi Law staff provided it to the client.” – t 1-36.

104. [104]
     The applicant said much the same in relation to the O'Connor sale – t 1-48 and t 1‑52.  I initiated further questioning:

“HER HONOUR:  Can I just interrupt.  The client would be rather surprised to get an invoice from Lexi Law, would it not?--- Yep.  This one I can see it says, care of Worcester & Co Solicitors, on page 58.

Yeah.  That’s all right.  That’s not what I asked you?--- Yep.

The client would be surprised to get an invoice from Lexi Law?--- Correct.

Because they’d never dealt with Lexi Law?--- That’s true.

Was the invoice – why was the invoice prepared?  Surely, the invoice wasn’t prepared to send to the client?--- That’s right.  We prepared the invoice so it identified all the expenses, so all the outlays are listed here.  My understanding was that it was given to Mr Worcester for the purposes of generating his own Worcester & Co tax invoice, on Worcester & Co letterhead.

…

And that would be sent to the client?--- Correct.” – tt 1-52-53.

105. [105]
     But this explanation was untrue:

“Just hold on a minute.  By the time this [LexiLaw] invoice was prepared, …

… you already had the cheque [for fees] from Worcester & Co solicitors payable to the order of Worcester & Co by the time you made out the invoice?--- That’s correct.” – t 1-53.

106. [106]
     And then the applicant put forward a more complicated scenario:

“So, I find it hard to understand why this invoice was to let Worcester & Co know how much to bill, because they already knew how
much?--- Yeah.  We had provided with a – we generated the figure from a draft invoice … and then upon receipt of the cheque, the invoice was finalised.

I don’t understand why it would be done that way?--- If it was done any other way, the – the cheque collected at settlement would need to be – would be paid to Jeremy and then we would have to calculate our fee and outlays, provide him with that figure then.  Then he would have to raise a cheque---

No, sorry.  Sorry – sorry, you’d already done a draft – you’d done your costings---?--- Yes.

---as a draft.  Not an invoice, a draft?--- Correct.

And that was the document that was relied upon for Worcester & Co to generate the cheque in the amount of, in this case, $5705.47?--- Yes.” – t 1-53.

107. [107]
     The applicant then seemed to contradict her evidence of an agreement with Mr Worcester allowing her to bank Worcester & Co cheques to the LexiLaw Trust Account:

“Why did you need to generate an invoice once you had the cheque? Why couldn’t the costings, which were not an invoice, just simply be given to Mr Worcester, if he needed to make up a Worcester & Co bill?--- Yeah.  At the time, your Honour, Mr Worcester was in between bookkeepers … He hired an accounting firm that had no experience in relation to the software that he used … Given the wind-up of the office, Jeremy preparing to move offices, the Christmas period and the – the general work that we had, the path of least resistance, if you like, was that we deposit the moneys in trust, transfer to general and then that way all the outlays were quickly paid, rather than the toing and froing.” – t 1-53.

108. [108]
     I persisted and was told what I find was an untruth in the final answer in this passage:

“But you haven’t answered my question.  You said you had to do up a Lexi Law invoice to give to Worcester & Co---?--- Yep.

---so Worcester & Co could do up a Worcester & Co invoice.  So they needed the information that was in the invoice?--- Correct.

But you already had that, and you’d already given it to them as a costing?--- We’d given them the figure, your Honour.  We hadn’t given them the draft invoice.

All right.  But, still, why did something more have to happen?  Why did a Lexi Law invoice have to come into being?--- Well, that’s how we were able to get rid of all the outlays.  You have to raise an invoice and then apply the credit towards the invoice to pay off the outlays.

Well, only if it went through into the Lexi Law General Account.  If the cheque had been made to the Worcester account, and Mr Worcester had issued an invoice, none of this would’ve had to happen?--- That’s right, your Honour.

I don’t understand?--- That’s right, your Honour.

Well why didn’t that happen?--- Mr Worcester didn’t have the capacity or ability to raise the invoices and to transfer the moneys, as I understood it, at the time.  He didn’t have a bookkeeper.” – tt 1‑53‑54.

109. [109]
     In fact as already discussed, Mr Worcester did have accounting staff and did have this ability – see [89] above.
110. [110]
     Cross-examination moved to the Leroux matter and the applicant again said that she did not know whether the LexiLaw invoice was given to the client.  Cross‑examination turned to the ledger for the LexiLaw General Account:

“HER HONOUR:  Why does this general account show, first, a debit of the amount of fees and then a credit of the amount of the fees?--- Here, your Honour, it looks like the – the cheque was deposited into general before the invoice had been raised, or com – finalised, rather.

I don’t really understand?--- So the transfer happened before the invoice was finalised.  So once the invoice is finalised, it is then recorded on the ledger that that’s the date that it was finalised.

Can you not transfer from the trust account to the general account unless you’ve got a Lexi Law invoice?--- Yes, your Honour.  You’re right.

So is that why you were producing Lexi Law invoices?--- Yes, your Honour.

Not for the reason you told me earlier today?--- Well it’s one of the reasons – well, as if – no, it is one of the reasons.  …

…

… They weren’t ever to be sent to the clients, were they?--- That’s right.  These were agency.  Lexi Law invoices were never intended to be sent to the clients.  They were only for the purposes of the mechanics, I guess – for the distribution of the funds.

From trust to general?--- And – yes, and the recording on the ledger.

Not so that Mr Worcester could send – Mr Worcester – a Worcester & Co invoice?--- Well, if he did that, that was in his firm.  That’s why he – with – I was asked for tax invoices.  Previous – I have been asked for tax invoices previously for that purpose.  But---” – tt 1-68-69.

111. [111]
     I interrupt this passage to remark that the conveyances were not “agencies” and note that despite the applicant’s earlier evidence that the draft invoice or invoice was prepared to be given to Worcester & Co for the preparation of a Worcester & Co invoice, she disclaims that. The passage continues:

“…  this morning I said to you, ‘It doesn’t look like these invoices ever went to the clients’, and you said no.  And then I said, ‘Well, why were they done up?’  And you said, ‘Well, they had to be done up so that Worcester & Co could send an invoice of their own, because’---?--- Yep.

---‘otherwise Mr Worcester wouldn’t know the numbers’?--- Yeah.  So he wouldn’t know how to record the outlays.  You’re right.  But they were also – they also needed to be finalised in our accounting software so that we could accurately record them – the receipting of those funds.” – t 1-69.

112. [112]
     The next day the applicant conceded that the real purpose for the generation of the LexiLaw tax invoices was to facilitate the transfer of funds from the LexiLaw Trust Account to the LexiLaw General Account – t 2-50.  This was not before she offered two further, and inconsistent, explanations: (a) that the LexiLaw tax invoices addressed to the clients were invoices rendered by LexiLaw to Worcester & Co for the services provided by LexiLaw – t 2-15, and (b) that the LexiLaw invoices were sent to the clients and the clients paid them – see the underlined passage at [32] above.  Both of these statements were simply false.
113. [113]
     I find that the real reason for generating a finalised LexiLaw tax invoice was so that the applicant could, in accordance with accounting protocols, transfer the full amount of professional fees from the LexiLaw Trust Account to the LexiLaw General Account.  She was entitled to half these fees under her agreement with Mr Worcester, but she transferred the entire amount of the fees from the General Account to RiQee Wills Pty Ltd.  She has always acknowledged that Mr Worcester is entitled to half these professional fees.  However, where she raises set-offs, it is to her commercial advantage to have control of the fees.  Towards the end of the second day’s hearing, under cross-examination by counsel for the Board, the applicant acknowledged that she acted as she did so as to control the funds:

“I put it to you, Ms Jenkins, that you were doing that to ensure that you got the fees and not Mr Worcester – that you had control of them.  You’ve acknowledged that you owed his share, but that you had control of those fees?--- That is one way you could look at it, yes.” – tt 2-86-87.

114. [114]
     I find that the applicant was not telling the whole truth on the several instances where she answered that she did not know whether the LexiLaw tax invoices were sent to the client.  It might have been theoretically right to say that perhaps at some stage, unbeknownst to her, some employee of LexiLaw had sent those invoices to the client.^[32]  However, the whole truth was that they were never intended to be sent to the client; the address details on the invoices were incomplete; the invoices were generated after the client’s payment had been received, and that they were generated for the purpose just explained.  I find that the applicant’s failure to tell the whole truth in relation to this series of questions was to obscure her real purpose in having these invoices generated.
115. [115]
     I find that it was not necessary to make a draft LexiLaw invoice in order that a Worcester & Co invoice be generated, see [105] above.  I am not able to make a finding as to whether or not draft invoices were provided to Worcester & Co staff for this purpose.  There is a real possibility that this did not happen; Mr Worcester cross‑examined the applicant on the basis that it did not happen – see t 2-16.  However, I do find that the applicant’s evidence that a finalised LexiLaw tax invoice was necessary for some reason other than that described at [113] above was false.

The Board’s Separate Points of Objection

116. [116]
     Paragraph 1 of the Board’s points of objection reads as follows:

“1. In accordance with Rule 15(2) of the Supreme Court (Admission) Rules 2004, the Board is not satisfied the applicant is eligible and suitable for admission because it is unable to determine whether the applicant has been candid in her evidence with respect to:

1. (a)
   her evidence that LexiLaw was not taking on any new matters after 31 March 2019;

2. (b)
   her evidence that LexiLaw ceasing to trade in April 2019;

3. (c)
   her evidence of CJM Lawyers handling all existing LexiLaw matters from 31 March 2019;

4. (d)
   her non-receipt of an email from Mr Worcester dated 17 January 2020;

5. (e)
   her responses to the objector’s allegations regarding the payment by Tribeca Homes Pty Ltd into Worcester & Co’s trust account.”

117. [117]
     Paragraphs 1(a), (b) and (c) relate to factual discrepancies in the applicant’s evidence as to her moving from Worcester & Co (trading as LexiLaw) to CJM Lawyers.  They sit within a broader group of other like discrepancies discussed at [7] – [10] and [23] – [29] above. 
118. [118]
     After cross-examination on these topics the Board accepted that there was no evidence to contradict the applicant’s evidence as to topic 1(a).
119. [119]
     As to topic 1(b), the oral evidence of the applicant was that, contrary to what she swore in her first affidavit, LexiLaw did not cease trading in April 2019.^[33]  Shortly afterwards, she told me that LexiLaw existed, but did not trade, after May 2019 – t 2‑60.  I pointed out to her that after May 2019 LexiLaw continued to handle Victorian conveyances through a Victorian agent and the following exchange occurred:

“Well, it was trading if it was doing conveyancing?--- The file was transferred to Shelley Racine [Victorian agent] and she conducted the conveyance on our behalf.

Yes, on your behalf.  So it was trading, albeit it through an agent?--- I see what you’re saying.

Who was there?  Who was the person – apart from the – Shelley Racine in Victoria, who was doing it?  You weren’t working for Lexi Law anymore.  Mr Worcester wasn’t doing it.  Who was doing it?--- I wasn’t employed as an employee at Lexi Law.  I was still – I guess after that time, when my – I stopped getting paid, I think, in May.  My capacity – then I was working as the service provider as my company, RiQee Wills, as a director providing those services to the company, Lexi Law …” – t 2-60.

120. [120]
     The applicant then gave evidence that until November 2019 RikkiLee Savage‑Duggan and Aimee Turner were still being provided by RiQee Wills Pty Ltd to LexiLaw to complete conveyances – t 2-62.  The applicant said that the LexiLaw server was turned off in about November 2019 and that LexiLaw “was still in some way trading in November 2019” – t 2-63.  LexiLaw was still running conveyances until November 2019: Baro and Habeebeh as well as Kumar and Akhtar.^[34] 
121. [121]
     I asked the following questions:

“And what solicitor was supervising those people?--- There was no solicitor – no.  Well, Mr Worcester was still available.  Mr Worcester was still available to – if in need.

What, in December or November 2019, you’re saying Mr Worcester was supervising … RiQee Wills staff?--- RiQee Wills – he wasn’t – he was not – I was supervising the staff, but any Lexi Law issues that had arose or had – had arisen were brought to his attention, if – if any, but I don’t recall there were any issues for the firm.  Archiving and admin didn’t require the legal practice.” – t 2-63.

122. [122]
     There is a real question about whether anyone with legal qualifications was supervising the work which LexiLaw undertook between May 2019 and November 2019.  However, this was not an independent ground of objection to the applicant’s admission and I refrain from making any finding about it – t 2-63 and t 2-76. 
123. [123]
     The applicant swore to false information about when LexiLaw stopped trading in her first affidavit (April) and then again swore falsely to questions asked by me about the topic (May).  The Board’s submission was that at the very least this demonstrated a lack of care in making statements on oath, and a lack of understanding of what it means for a solicitor’s firm to trade.  The Board’s submissions pointed out that the applicant was on notice that the Board was taking this particular point and even so, her evidence was as described above.  The Board submitted it was a question for me as to whether or not these failures were deliberate.
124. [124]
     I turn to the Board’s ground 1(c).  It is very similar to that just discussed.  The Board says that the applicant’s first affidavit was inaccurate.  At paragraph 30 thereof she swore, “LexiLaw did not accept any new work from 31 March 2019 and all existing matters were handled by CJM Lawyers as agent for LexiLaw …” – Court Document 7.  As discussed in relation to point 1(b), the applicant admitted that the second part of this statement was inaccurate.
125. [125]
     I find that the applicant’s false evidence on oath in relation to the Board’s objections 1(b) and 1(c) was part of a series of false statements made on oath as to when she left Worcester & Co and when LexiLaw was wound up.  In my view, this was part of a deliberate attempt to distance herself from the conduct which is the subject of Mr Worcester’s objection. 
126. [126]
     Paragraphs 1(d) and 1(e) of the Board’s objection are in relation to a distinct subject matter.  The procedural history is somewhat complicated.  Mr Worcester’s points of objection originally contained two separate objections.  The first was in relation to the seven conveyances and has been dealt with above.  The second was that:

“3. Between 10 December 2019 and 20 Jan 2020, the applicant, with the intent of retrieving certain funds totalling $1,580.00 from my trust account relating to the Kumar & Akhtar conveyance, endeavoured to mislead and deceive me.

Particulars

i. By email to my bookkeeper dated 13 January 2020, the applicant informed me that she was being ‘chased’ for those certain funds.

ii. By email to my bookkeeper dated 20 January 2020 the applicant informed me that her client (sic) was ‘now frantic’ regarding the certain funds that had ‘gone missing’, and that she was doing her best to prevent a complaint being made to the QLS.

iii. At the time of writing the above emails the applicant well knew that:

a. she was not being ‘chased’;

b. there was no reasonable basis to believe that the client (sic) was ‘now frantic’;

c. I was in possession of the certain funds, contrary to her reference to the certain funds having ‘gone missing’; and

d. The circumstances were such that there was no reasonable basis for her to expect or fear the making of a complaint by Shelley Racine to the QLS.”

127. [127]
     Ms Racine was Mr Worcester’s witness and was to give evidence on the second day of trial.  Ms Racine attended the courtroom but was not called.  Mr Worcester withdrew his point of objection contained in paragraph 3 (above), and all counsel agreed that I could release Ms Racine, which I did. 
128. [128]
     However, paragraphs 1(d) and 1(e) of the Board’s objection related to the honesty of the applicant’s evidence in response to Mr Worcester’s second objection (paragraph 3 above).  The Board persisted with these points.  Senior Counsel acting for the applicant concurred in the way that this was handled; sought an adjournment of his re-examination of the applicant at the end of day two of the hearing in order to obtain further emails about the applicant’s dealing with Ms Racine, and made submissions on the basis that the Board’s paragraphs 1(d) and 1(e) were before me.  I proceed on that basis. 
129. [129]
     This objection concerns the Kumar and Akhtar conveyance.  Worcester & Co, trading as LexiLaw, acted for the purchaser.  The purchaser bought from a property developer called Tribeca Homes Pty Ltd.  As part of Tribeca Homes’ marketing strategy it paid purchasers’ conveyancing costs.  The arrangement LexiLaw had with Tribeca was that LexiLaw would invoice Tribeca after settlement.^[35]  The land was in Victoria, and LexiLaw used its Victorian agent, Ms Racine, to complete the conveyance.  The conveyance settled in November 2020.
130. [130]
     Subsequent to settlement, Tribeca mistakenly paid the legal fees into the Worcester & Co Trust Account, rather than the LexiLaw Trust Account.^[36]  This was a LexiLaw branded matter, unlike the seven conveyances discussed above.  Thus, the fees were the applicant’s.  So were the expenses, and there were agency fees owed to Ms Racine.  A series of emails followed the mistaken payment.  I will set them out and then return to the substance of the Board’s objections 1(d) and 1(e).
131. [131]
     On 20 November 2019 Ms Racine sent an email to the applicant asking for confirmation that the applicant had invoiced Tribeca on the Kumar and Akhtar matter and received her invoice of 9 November, “to be paid once you are paid by Tribeca” – ex 14.
132. [132]
     On 10 December 2019 Worcester & Co bookkeeper, Jasmine Dacombe, sent an email to the applicant saying:

“We have received the below deposit into the T/A and the bank has said it’s come from ‘ANZ Cheque Account LexiLaw’.  Can you please advise what this payment was for, or if it has been transferred in error please provide instructions.

06.12.19   TRANSFER FROM ANZ CHEQUE ACCOU

                 TRIBECA HOMES PTY LTD                        $1,580.00”^[37]

The applicant did not reply.

133. [133]
     On 10 December 2019 Ms Racine wrote again, “Just wondering if you are able to transfer payment for these two invoices yet?” – ex 14.
134. [134]
     On 24 December 2019 Ms Racine emailed, “When you get a moment, could you please follow up in relation to transfer of our fees for … Kumar and Akhtar” – ex 14.
135. [135]
     On 13 January 2020 the applicant wrote to Mr Worcester’s bookkeeper Jasmine Dacombe saying, “I’m being chased for the money that Tribeca accidentally transferred to your account.  Will you be able to complete the transfer today/tomorrow?  Please let me know so I can let the clients know.  Thank you.”^[38] 
136. [136]
     On 16 January 2020 the applicant wrote to Ms Racine saying, “Tribeca has paid it to the wrong solicitor account and I’m trying to get the money back.  They’ve left it for me to chase!  Hope to get back early next week.”  Ms Racine replied on 22 January 2020, “Thanks for the update Kristee, hopefully we both get paid soon – what about … Barro and Habeebeh … invoice email through on 21/11 …”. 
137. [137]
     Mr Worcester emailed the applicant on Friday 17 January 2020:

“As you are aware I remain the principal of LexiLaw.

As you are further aware I believe that you have unlawfully taken money from me and I am pursuing the matter further.

In the interim I am exercising a lien on the funds and will retain the moneys in trust pending resolution of my claim against you.”^[39]

138. [138]
     On Monday 20 January 2020 at 12.21 pm the applicant emailed Jasmine Dacombe again asking for the funds to be transferred and saying: “Client is frantic that money has gone missing” and that she, the applicant, was “doing my best to prevent a complaint to the QLS”.^[40] 
139. [139]
     At 12.38 pm on Monday 20 January 2020, the applicant sent an email from her LexiLaw email address to Mr Worcester saying:

“I didn’t get that email, you sent it to CJM and your emails to me on the CJM account have been blocked.

I haven’t unlawfully taken anything Jeremy.  I owe you money, you owe me money.  I’m asking to adjust.  You won’t adjust.

Meet this week to tidy up?

I’m free today until 3, Wednesday all day, Thursday and Friday all day.

Let me know.”^[41]

140. [140]
     The Board’s objection at 1(d) was about the honesty of the applicant’s evidence about the email of 17 January 2020.  In response to Mr Worcester’s (abandoned) ground of objection, the applicant said, “I did not receive the email dated 17 January 2020 as all of Jeremy’s emails to my CJM Lawyers email account had been blocked by my employer due to Jeremy’s harassment towards me at the time”.^[42]  I accept that the applicant did complain to CJM Lawyers that Mr Worcester was harassing her, and that as a result his emails to her CJM email address were blocked.  I add, because it is a serious allegation to have on record against a professional person, that there was no evidence before me of Mr Worcester harassing the applicant.
141. [141]
     I find that the applicant’s email of 20 January 2020 was written in response to Mr Worcester’s email of 17 January 2020.  This is obvious from the first line of the applicant’s email of 20 January 2020 and the repetition of the phrase “unlawfully taken money”.  On its face then, the applicant’s denial of receipt of that email in her affidavit was false.  Counsel for the Board put to the applicant that this part of her affidavit was false:

“And then, on the next page, on 216, that seems to be a response to Mr Worcester, on the 20^th of January, where you do tell him you didn’t get the email---?--- That’s right.

---because it’s been blocked.  And yet, you go on to say that:

I haven’t unlawfully taken anything.  I owe you money.  You owe me money.  I’m asking to adjust.  You won’t adjust.

?--- That’s right.

So that’s the Monday.  The email was sent on Friday---?--- Yes.

---to Mr Worcester and you’re responding on the Monday?--- I believe I would’ve – have not been responding to Mr Worcester’s email on 17 January because I didn’t receive it.  I---

Ms Jenkins, I put to you that that is not the truth?--- It is 100 per cent the truth.  I didn’t receive the email.  The IT department had blocked Mr Worcester’s emails from being received from the CJM email account.  The---

…

It’s clearly in response to that 17^th of January email, isn’t it?--- Yes, it is.  But I didn’t receive the email directly from Jeremy.  I – the chain seems to be missing, but I believe it was attached in an email from Jas to me saying:

This is the email that Jeremy sent to you.

So Ms Jenkins, when you say in your affidavit material that you didn’t receive the email, that’s not correct is it?--- I didn’t receive it directly from Mr Worcester, no.  So in response to your question, I could have rephrased that, as the statement is incorrect.

So when you say you could have rephrased it, what do you mean by you ‘could have rephrased it’?  So that it would actually reflect the truth?--- So that it would’ve reflected that I received the email as an attachment rather than directly from Mr Worcester.

Ms Jenkins, you do understand that telling half the story is not being candid in your evidence, don’t you?--- I do believe that – I do understand that.

And so I put it to you that by saying you didn’t receive Mr Worcester’s email, you are not being candid in your evidence?--- Yes.  and I also believe that I’m very inexperienced with how to write an affidavit.  I need – yeah.  I could have---

HER HONOUR:  It’s not about---?--- I could have---

It’s not about how you write it.  It’s about telling the truth?--- Yes, your Honour.  I – I understand your point, Mrs Sheean, and I accept what you’re saying.

MS SHEEAN:  So I put to you, Ms Jenkins, that you were attempting, by that paragraph, to manipulate the facts, to try to support your comment earlier about preventing a QLS complaint.  So you were trying to make up a story that would support this so-called trying to prevent a complaint to the QLS?--- To expedite, yes.” – tt 2-75-76.

142. [142]
     I find that the applicant’s statement in her affidavit was a half-truth: the applicant had received Mr Worcester’s email, but not directly from him.  I am not persuaded that she was deliberately putting forward a half‑truth, but her conduct was careless.  Separately, this is another instance where, having been confronted with that half‑truth in cross-examination, the applicant failed to cleanly acknowledge it. 
143. [143]
     The Board’s objection 1(e) is particularised at paragraph 4 of the Board’s points of objection:

“As the evidence currently stands in relation to 1(e) above:

1. (i)
   the emails relied upon by the applicant do not support her having been chased by the client or Shelley Racine at the time of the applicant’s email to [email protected] dated 13 January 2020;

2. (ii)
   the applicant’s evidence that neither Mr Worcester nor his accounts manager advised that funds had been paid to the Worcester & Co Trust account is inconsistent with an email dated 10 December 2019 from [email protected] to the applicant advising that funds had been received into the Worcester & Co Trust Account.”

144. [144]
     In response to Mr Worcester’s abandoned objection, the applicant swore in her first affidavit:

“81. My comments to Jeremy, that ‘I was being chased for the money’ was true as Shelley Racine was chasing payment of her account (exhibit hereto marked ‘KVJ22’).

82. My comments to Jasmine Dacombe, the Accounts Manager at Worcester & Co, that ‘I am doing my best to prevent a complaint to the QLS’ are also true as I was worried that Shelley Racine might make a complaint to the QLS in relation to the unpaid account.”

145. [145]
     In cross-examination the applicant accepted that to use the word “chased” in her first affidavit was slightly exaggerated.  Having regard to the emails which had been sent by Ms Racine, I do not think that this matter shows any lack of truthfulness on the part of the applicant.  In fact, there is an email in evidence in which Ms Racine writes to Tribeca describing herself as chasing payment.^[43] 
146. [146]
     More serious is the applicant’s statement in the 20 January 2020 email that she was doing her best to prevent a complaint to the QLS.  At paragraph 69 of her second affidavit the applicant said:

“My comment ‘I am doing my best to prevent a complaint to the QLS’ was also true and not unreasonable because:

1. (a)
   I do not recall LexiLaw having been provided with a copy of the trust account receipt to forward to the client from Worcester & Co;

2. (b)
   I am unaware whether a trust account receipt was issued to Tribeca Homes Pty Ltd by Worcester & Co; and

3. (c)
   Shelley Racine had become somewhat impatient with me with regards to her unpaid invoice.”

147. [147]
     When it was put to the applicant in cross-examination that there was no basis for thinking there would be a complaint to the QLS she could offer no convincing basis to say there was – t 2-71.  She then admitted that in saying that she was trying to stop a complaint to the QLS, she was using a threat without basis to force the transfer of funds – t 2-72.  I find that this is what she did.  There is also the admission in the last exchange at [141] above.  Further, I find that in her first and second affidavits she falsely denied that this was her purpose – t 2-72.  The second of those affidavits was sworn on 21 June 2021. 
148. [148]
     In the pattern which was repeated throughout her evidence, the applicant in her oral evidence first tried to justify the statement that she was doing her best to prevent a complaint to the QLS as true – t 2-71; then admitted that it was false and then tried to justify her behaviour first on the basis that she believed in the truth of her email of January when it was sent – t 2-72, and then on her emotions in May [and June] 2021 – t 2-73. 
149. [149]
     Lastly, as to the particulars at 4(ii) at [143] above, in her first affidavit the applicant described how Tribeca had mistakenly paid fees to the Worcester & Co Trust Account.  Her affidavit went on to say, “Neither Jeremy nor his Accounts Manager, Jasmine Dacome advised LexiLaw that funds had been paid to the Worcester & Co Trust Account”.^[44]  In cross‑examination counsel for the Board took the applicant to the email of 10 December 2019 above.
150. [150]
     When this inconsistency was put to the applicant, her evidence, which extended over two pages, was unimpressive.  She first said that her affidavit was accurate because the email of 10 December 2019 did not state that the payment was in relation to the Kumar and Akhtar matter and that when she received the 10 December 2019 email she did not realise it was in relation to the Kumar and Akhtar matter.  It was put to her that it was clearly in relation to a Tribeca matter and that at December 2019 there were only two of those on foot.  She accepted that.  By the time the applicant swore her affidavit she knew that the email of 10 December 2019 did relate to the Tribeca payment for the Kumar and Akhtar matter and, despite her attempts to explain otherwise, I cannot see that paragraph 77 of Court Document 7 could have been reasonably regarded as anything other than a half‑truth at the time she swore that affidavit.
151. [151]
     The whole passage at tt 2-63-65 is another illustration of the applicant’s approach described at [32] above.
152. [152]
     The Board also raised points of objection concerning one of the seven conveyances.  I have dealt with those matters in my discussion and findings about Mr Worcester’s objection above.

Findings and Determinations

153. [153]
     To summarise my factual findings, I find that the applicant banked five cheques made out to Worcester & Co, which belonged to the business Worcester & Co, into the LexiLaw Trust Account without authority.  I find that she transferred the funds from that Trust Account to the LexiLaw General Account, and then to RiQee Wills Pty Ltd, without authority.  I find that these actions were deliberately undertaken so that she gained control of the funds in the context of her leaving Worcester & Co.
154. [154]
     I cannot make a finding about how the professional fees in the Teyssier purchase and the Washpool purchase came to be placed in the LexiLaw Trust Account.  However, I find that the applicant transferred them from that Trust Account to the LexiLaw General Account, and then to RiQee Wills Pty Ltd, without authority and for the same reason.
155. [155]
     I find that the applicant falsely represented to Jasmine Dacombe, the Worcester & Co bookkeeper, that she was doing her best to prevent a complaint to the QLS in order to persuade Ms Dacombe to transfer monies held in the Worcester & Co Trust Account on the Kumar and Akhtar conveyance to the LexiLaw Trust Account. 
156. [156]
     I find that the applicant deliberately swore to false and half-true information in her affidavits in this proceeding.  Further, she gave false and half-true evidence orally before me, including in answers directly to me.  Her purpose was to attempt to conceal or justify her behaviour described at [153] – [155] above.
157. [157]
     When confronted with her own false statements on oath, the applicant repeatedly failed to acknowledge them.
158. [158]
     The applicant was literally fast-talking.  She often gave answers which were very detailed but tangential to the questions asked.  These answers were, in my view, designed to deflect cross-examination.^[45]  Overall, my impression of the applicant was that she had no real (as opposed to intellectual) understanding of the requirement to be honest in this proceeding.  Her answers to questions on controversial topics were almost reflexive constructs which she hoped might meet her purpose, or evade the purpose of the questioner.
159. [159]
     The final submissions filed on behalf of the applicant ignore or downplay the applicant’s own evidence that on several occasions in her affidavits and oral evidence she had sworn to things which were false.  If they were made on instructions, they demonstrate that the applicant does not appreciate the very serious difficulties with her evidence and her behaviour.
160. [160]
     Submissions were made by the parties about the requirements of the Legal Profession Act 2007 (Qld) (LPA) having regard to the fact that part of Mr Worcester’s complaint concerned trust accounts. 
161. [161]
     The cheques which Mr Worcester signed on the Dirckz and O'Connor matters were drawn on the Worcester & Co Trust Account – see exhibits 5 and 6.  Cheques received on settlement on the sales in Yu, Leroux and Teyssier were made out to Worcester & Co – see exhibits 7, 8 and 9.
162. [162]
     The client agreement in Dirckx contained the following clause:

“13.   Trust Account Authority

In accordance with the requirements of section 249(1)(b) of the Legal Profession Act 2007, you authorise Worcester & Co to transfer from our trust account to our general account or to any other trust account, held on your behalf, any money relating to professional fees, statutory charges, and other outlays incurred on your behalf in relation to the file the subject of this [conveyance], or any other matter where Worcester & Co act on your behalf.” – ex 5.

163. [163]
     Mr Worcester swore it was likely that all the client agreements contained this clause.^[46]  Acting on this basis, it appears that what the applicant did was not a breach of Worcester & Co’s obligations to its clients.
164. [164]
     Mr Worcester’s submissions were that the cheques and the monies deposited directly into the LexiLaw Trust Account were trust monies within the meaning of s 327 of the LPA, “Trust money means money entrusted to a law practice in the connection of or in connection with the provision of legal services by the practice …”.  He submitted that to deposit these monies in the LexiLaw account was a breach of the LPA.
165. [165]
     I have some difficulty with the second part of this submission.  First of all, the definition of legal practice in the LPA is, relevantly here, the practice carried on by Mr Worcester as a sole practitioner, albeit it was conducted under two different business names.  Further, the obligation of a legal practice is to deposit trust money into “a general trust account of the practice” – s 248(1) LPA.  Thus, accepting the monies were trust monies as between Worcester & Co and its clients, it seems to me that placing them in the LexiLaw Trust Account was placing them in a general trust account of that practice. 
166. [166]
     Mr Worcester further submitted that regardless of the position viz-a-viz Worcester & Co and its clients, the monies were trust monies as between himself and the applicant because of the agreement that Worcester & Co would process the monies, and because they belonged to Worcester & Co.  Again I have some difficulty with this analysis.  Accepting that the cheques belonged to Worcester & Co, and that they came into the applicant’s possession, I see the analysis more in terms of the common law than in terms of a trust, or the obligations under the LPA.
167. [167]
     It does seem to me, however, that the applicant’s conduct in transferring money from the LexiLaw Trust Account to the LexiLaw General Account, and then to RiQee Wills Pty Ltd without authority is in breach of s 249(1) of the LPA which provides:

“249.   Holding, disbursing and accounting for trust money

3. (1)
   A law practice must –

1. (a)
   hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received; and

2. (b)
   disburse the trust money only under a direction given by the person.

…”

The Applicant’s Lawyers

168. [168]
     I wish to say something about the behaviour of the solicitors and counsel who acted for the applicant in this proceeding.  Where serious allegations had been made by the objectors against the applicant, CJM Lawyers should not have acted for her in the proceeding.  There was a clear potential for conflict of interest between CJM’s roles as employer and solicitor for the applicant.  As the hearing progressed, that potential became a reality. 
169. [169]
     The partner of CJM, for whom the applicant works, Shannon McLaughlin, gave evidence on her behalf.  Some of his evidence bore on contentious factual matters.  As well, Mr McLaughlin swore that the applicant had displayed a high degree of integrity, responsibility and honesty at CJM Lawyers and that she was a fit and proper person deserving of admission.  If Mr McLaughlin was willing to swear an affidavit as to factual, and opinion, matters relevant to this application, he was of course able to do so.  But a solicitor ought not give contentious evidence in a matter where they are the solicitor on the record.
170. [170]
     These are not trivial or subtle matters.  They should have been obvious the solicitors, and they should have been obvious to counsel briefed in the matter.  Where solicitors on the record have a conflict which prevents them properly acting, counsel cannot properly take instructions from those solicitors without putting themselves into a conflicted position.