ICAC finds NSW Maritime lawyer corrupt over misuse of resources
Wednesday 1 September 2010
The Independent Commission Against Corruption (ICAC) has found that Tonette Kelly, the Acting General Counsel for NSW Maritime, engaged in corrupt conduct by misusing agency resources and grossly downplaying her secondary employment details in relation to her private conveyancing business which had an annual turnover of approximately $120,000.
The Commission is of the opinion that consideration should be given to obtaining the advice of the Director of Public Prosecutions (DPP) with respect to prosecuting Ms Kelly for various offences including misconduct in public office. The ICAC is also of the opinion that consideration should be given to the taking of action against Ms Kelly with a view to her dismissal. The Commission notes that NSW Maritime has already commenced disciplinary action against Ms Kelly that may lead to her dismissal, and endorses this action.
In its report on the Investigation into the misuse of resources by a NSW Maritime Legal Services Branch Officer, released today, the Commission found that although Ms Kelly claimed in a 2003 secondary employment application that she was undertaking a limited amount of conveyancing work from home, by December 2004 she had reached a level of practice involving approximately 100 clients per year, mainly involving conveyancing matters.
When she applied for renewal of the approval in August 2009, she did not inform NSW Maritime Chief Executive Steve Dunn that the volume of work was far greater than that declared in the original 2003 application. She later agreed in her evidence at an ICAC public inquiry that there came a time when she spent several hours a week undertaking the private conveyancing work in the NSW Maritime offices, in contrast to the less than one hour per week referred to in the original application.
The Commission found that although Ms Kelly asserted that she did no more than three or four hours a week at work on conveyancing, and that all she had to do was take phone calls, a total of 4,568 faxes sent from the NSW Maritime machines were located in files seized legally by the Commission from Ms Kelly's home. The files spanned 2001 to 2009, although some were missing, and the majority were conveyancing work.
Corrupt conduct findings have also been made against NSW Maritime solicitor Bonita (Bonnie) Dacombe for engaging in secondary employment without approval, as she undertook some conveyancing work for Ms Kelly and received remuneration from her. Ms Dacombe's brother, Nicholai Dacombe, also acted corruptly by providing false information in a reference to the Legal Profession Admission Board in an application for registration as a student-at-law. The Commission is of the opinion that consideration should also be given to obtaining the advice of the DPP for prosecuting Mr Dacombe for an offence of giving false evidence to the Commission.
The Commission finds that Ms Kelly should be referred to the Legal Services Commissioner in relation to the preparation of the false reference for Mr Dacombe, and also for false statements of gross fee income for professional indemnity insurance (PII) which were considerably less than her actual income from conveyancing.
The Commission also finds that Ms Kelly obtained the PII to enable her to engage in private practice, although she had claimed to Mr Dunn that she needed to have this insurance to enable her to work on the Rozelle Bay Superyacht Marina, which she said was a separate business and not part of NSW Maritime's core business, although it is owned and operated by the agency.
Commission inquiries to the Law Society confirmed that solicitors holding a government practising certificate are not required to hold PII while practising in the employment of NSW or commonwealth governments, or a prescribed corporation. The ICAC found that Ms Kelly arranged for NSW Maritime to pay her PII premiums from 1999 to 2009, and thus improperly obtained nearly $13,000 from the agency for private purposes.
The report found that Ms Kelly used the NSW Maritime account to conduct title searches for her private business, and never reimbursed the agency for the minimum $10,200 this cost from July 2003 to October 2009. The Commission is satisfied that a memorandum dated 20 March 2003, purportedly bearing the signature of then Chief Executive Matthew Taylor, is a forgery prepared by Ms Kelly to assist her to justify the use of the search facility for private use.
The Commission found that Ms Kelly also misled barrister John Clark, who was engaged by NSW Maritime in late 2004 to undertake an investigation after the ICAC referred allegations that Ms Kelly was running a conveyancing business from NSW Maritime premises and using the resources of the agency to do so. It was also alleged that Ms Kelly had employed a personal friend (Ms Dacombe) to work in the Legal Services Branch, and that friend might be working in Ms Kelly's conveyancing business during public time. NSW Maritime was required to report back to the Commission at the conclusion of the investigation.
Ms Kelly submitted to Mr Clark that she had undertaken a limited amount of conveyancing work, and referred to eight matters in 2003 and 10 matters in 2004, although client lists later seized by the Commission showed a total of 112 matters in 2003 and 102 in 2004.
The Commission makes seven corruption prevention recommendations to NSW Maritime, including that all employees in a supervisory role undertake training, and refresher training, in the operation of policies on secondary employment, the use of public resources and recruitment processes.
The Commission held a public inquiry as part of this investigation over four days commencing 19 April 2010, at which Commissioner the Hon David Ipp AO QC presided.