Burrows v Council for the Law Society of New South Wales (No 3)

[2018] NSWSC 737

Supreme Court

New South Wales

Medium Neutral Citation:	Burrows v Council for the Law Society of New South Wales (No 3) [2018] NSWSC 737
Hearing dates:	18 May 2018
Decision date:	22 May 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Order the plaintiff to pay the defendant’s costs of the proceedings, including the hearing on costs.  (2) Grant leave to the defendant to apply for costs to be specified in a gross sum, such application to be made within 14 days hereof.
Catchwords:	LEGAL PROFESSION – Law Society suspended lawyer who challenged suspension – proceedings resolved by lifting of suspension – both Law Society and lawyer sought costs – lawyer’s unreasonable conduct brought about suspension – lawyer ordered to pay Law Society’s costs   LEGAL PROFESSION – duty of lawyers to communicate with regulatory authority in a timely and honest way
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98(4) Legal Profession Uniform Law (NSW) ss 77, 81, 83, 266, 298, 316, 317, 370, 371, 464, 466 Legal Profession Uniform Law Application Regulation 2015 (NSW) cl 61 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) r 43
Cases Cited:	Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Veghelyi v The Council of the Law Society of New South Wales (Unreported, Supreme Court of New South Wales, Smart J, 6 September 1989)
Category:	Costs
Parties:	Zali Burrows (Plaintiff) Council for the Law Society of New South Wales (Defendant)
Representation:	Counsel: R K Newton (Plaintiff) C A Webster SC (Defendant)   Solicitors: Zali Burrows (Plaintiff) Law Society of New South Wales (Defendant)
File Number(s):	2018/24244

Judgment

Introduction

1. By summons filed on 22 January 2018 Zali Burrows (the plaintiff) sought relief against the Council for the Law Society of New South Wales (the defendant) following the defendant’s resolution to suspend her practising certificate pursuant to s 77 of the Legal Profession Uniform Law (NSW) (Uniform Law). The proceedings came to an end when the defendant resolved on 2 February 2018 not to proceed with the suspension.

2. The only outstanding issues are whether a costs order should be made and, if so, which party should pay the costs of the proceedings. The respective submissions of the parties can be briefly summarised. The plaintiff submitted that, as the defendant capitulated soon after the summons was filed, her right to have the suspension set aside was vindicated and the defendant ought be ordered to pay her costs. The defendant submitted that the plaintiff brought the suspension on herself and that, had she provided the information the defendant sought earlier, it would not have suspended her practising certificate and the proceedings would have been unnecessary. Accordingly, it submitted that the plaintiff ought be ordered to pay its costs.

Applicable principles

3. It is well established that, in a costs application where there has been no hearing on the merits, it is not appropriate for the court to conduct a hypothetical trial: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622 at 624 (McHugh J); [1997] HCA 6. This does not exclude consideration of the parties’ conduct. As McHugh J said, also at 624:

“In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action.”

4. Although it was the plaintiff who commenced the proceedings, the need for the proceedings was created by the defendant, which suspended the plaintiff’s right to practice. Thus, the defendant was, in effect, the party which precipitated the proceedings. For this reason it is relevant to have regard to the defendant’s conduct to ascertain, for example, whether it acted precipitately or reasonably in imposing the suspension. It is also relevant to consider the plaintiff’s conduct to ascertain whether she, in effect, left the defendant with little option but to suspend her right to practise.

5. The history of the matter is, accordingly, relevant to the question of costs. Although I am conscious that it is not appropriate in an application such as this to embark on a detailed consideration of the evidence, the evidence relied on by the parties in support of their respective costs applications is largely documentary and uncontroversial. In order to do justice to the submissions, it is, in my view, necessary to summarise the uncontroverted documentary evidence and to identify where the real factual dispute would have been, had the matter gone to hearing. Any such factual disputes cannot be determined in a hearing such as this: Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 at [8] (Basten JA, Meagher and Payne JJA agreeing).

The history of the matter

The first complaint

6. On 19 September 2016 the defendant wrote to the plaintiff seeking her response to a complaint made by a senior counsel concerning her conduct (the Senior Counsel Complaint). No reply having been received by 20 October 2016, the defendant again wrote to the plaintiff seeking her response to the Senior Counsel Complaint. The defendant continued to contact the plaintiff by telephone to seek her response. At the plaintiff’s request, the defendant again emailed its letter of 20 October 2016 to her on 28 October 2016. It also attached a further letter dated 28 October 2016 which included the following paragraph:

“As you know, for reasons of privacy and confidentiality, the Professional Standards Department does not conduct complaint investigations pursuant to Chapter 5 of the Legal Profession Uniform Law (NSW) by email. I would be grateful if you could please forward all future correspondence in relation to your complaint by either hand delivery, post or fax.”

7. On 4 November 2016 the plaintiff emailed a request for an extension of time to respond to the complaint. Later that day, the defendant emailed the plaintiff to inform her that she had been granted an extension to 11 November 2016 for that purpose. The plaintiff emailed the defendant on 11 November 2016 confirming that she had received the defendant’s email. On 18 November 2016, when the plaintiff had not yet responded to the complaint, the defendant wrote to the plaintiff again and sought her response by close of business on 18 November 2016. The defendant’s email concluded:

“You may forward your reply to this email however, the original should be forwarded to the Society.”

8. On 24 November 2016, Louis Pierotti, the defendant’s Litigation Manager in its Professional Standards Department, rang the plaintiff and left a voicemail message asking her to return his call. I infer from the absence of any record of a response from the plaintiff that she did not respond to his call.

9. On 14 March 2017 Mr Pierotti again telephoned the plaintiff. The plaintiff asserted that she had replied to these matters in the Senior Counsel Complaint. No record of any such response is contained on the defendant’s file and the plaintiff did not tender any such response. At the conclusion of the telephone call, Mr Pierotti checked the plaintiff’s contact details with her and noted an additional email address, which she provided to him. This was the third email address that she had provided to the defendant by way of contact details.

The second complaint

10. After this telephone discussion on 14 March 2017, that same day, Emma Essey, a solicitor in the defendant’s Professional Standards Department, wrote to the plaintiff about the Senior Counsel Complaint and a further complaint made by another person (the Second Complaint). In respect of the plaintiff’s failure to respond to the Senior Counsel Complaint, Ms Essey wrote:

“If you do not respond, in writing by 17 March 2017, I may issue you with a notice pursuant to Section 371 of the Uniform Law. I draw your attention to the provisions of Section 371 and in particular sub-section (3).

Your failure to respond to requests made by the Society in a timely and reasonable manner may be raised as a separate issue of unsatisfactory professional conduct or professional misconduct.”

11. I note, for completeness, that s 371 of the Uniform Law empowers an investigator (of the defendant or other local regulatory authority) to issue a notice to a lawyer requiring production of documents, provision of information, or other assistance for the purposes of carrying out a complaint investigation. Failure to comply with such a notice is capable of constituting unsatisfactory professional conduct or professional misconduct: s 466(6) of the Uniform Law.

12. Ms Essey also raised the question of the plaintiff’s business address and informed her that the defendant’s records still showed her address as being in King Street, Sydney. Ms Essey reminded the plaintiff of her obligations under cl 61 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) (the Regulation) to update the particulars of her practice. Ms Essay warned the plaintiff that breach of the regulations was capable of amounting to unsatisfactory professional conduct or professional misconduct under s 298 of the Uniform Law. Ms Essey’s letter of 14 March 2017 concluded:

“Please submit your response either by hand delivery, post or fax, but not by email.”

[Emphasis in original.]

13. On 17 March 2017 the plaintiff emailed Ms Flynn, an Administration Assistant in the defendant’s Professional Standards Department, and said:

“Please be advised that I am having issues with retrieving files on laptop, I will forward the correspondence on Monday [20 March 2017] once I can have my files from the back up hard drive installed Monday.”

14. Mr Pierotti emailed the plaintiff on 20 March 2017 at 7.51am, acknowledging her email and saying:

“Please ensure that your reply is received before close of business today.”

15. The plaintiff acknowledged receipt of this email at 7.55am on 20 March 2017. Later that day, at 4.13pm, the plaintiff wrote to the defendant by email again and complained about her computer being “frozen”. She indicated that she would send a response to the defendant later that day and that further documents would be sent when her computer problems had been resolved.

16. The plaintiff sent two emails to the defendant on 21 March 2017 which together constituted her first substantive response to the Senior Counsel Complaint, approximately six months after the defendant sent her the complaint. In a response sent on 21 March 2017 the defendant sought that a signed, consolidated response be sent by hand delivery, post or facsimile. The defendant also sought information regarding the Second Complaint and confirmation of her practice address. The plaintiff responded briefly to the email at 1.50pm and foreshadowed that she would send “further detail” that evening.

17. The plaintiff’s signed letter was sent on 22 March 2017. No more details were forthcoming. On 24 March 2017 the Senior Counsel wrote to the defendant regarding his complaint. His letter was received on 28 March 2017. The defendant wrote to the plaintiff on 28 March 2017 confirming receipt of emails. On 7 April 2017 the defendant sent the plaintiff a letter (dated 6 April 2017) by email which attached the Senior Counsel’s reply to the plaintiff’s letter of 22 March 2017 and invited her to respond. The plaintiff purported to provide a response on 26 April 2017. However, there was no attachment to her email. She again purported to provide a response on 1 May 2017. However, as before, nothing was attached to the email. On 5 May 2017, the plaintiff sent a substantive response by email with an attachment (a further response dated 14 April 2017).

18. The defendant continued to hand deliver correspondence to the plaintiff.

19. On 28 June 2017 Ms Essey wrote to the plaintiff seeking her response by 12 July 2017 to a further letter from the Senior Counsel which in turn responded to the plaintiff’s response dated 14 April 2017. The defendant’s letter concluded:

“This letter is being sent to you by hand, by email and by facsimile. I would be grateful if you would please acknowledge receipt of this letter by reply email to Mr Pierotti who I have copied into this correspondence.

Please submit your written response either by hand delivery, post or fax, but not by email.”

[Emphasis in original.]

20. On 29 June 2017 Mr Pierotti sent the plaintiff an email in the following terms:

“I have this afternoon attempted to telephone you – your mobile was said to have its mail box ‘full’ and your office number just ‘rang out’.

Please ensure that you speak to me by no later than 1pm tomorrow, Friday.”

21. On 30 June 2017 the plaintiff called Mr Pierotti and confirmed that she would come and see him on Monday (3 July 2017). On 3 July 2017 the plaintiff met with Mr Pierotti and Ms Essey. In the course of the meeting the defendant informed the plaintiff that she needed to nominate a physical location where her books (of account and, presumably, files) were located and a functioning email address so that the defendant could contact her. Later that day the plaintiff sent an email to Mr Pierotti confirming that she had entered her contact email on the defendant’s portal and provided a new office phone number and mailing address on Elizabeth Street.

22. On 11 July 2017 Mr Pierotti asked the plaintiff whether the offices in King Street (which she had earlier nominated) would have someone in attendance.

23. There is no evidence that the plaintiff sent a response to the defendant’s letter of 28 June 2017 by 12 July 2017 as required. The defendant’s evidence indicates that no response was received within that period (as the defendant tendered all communications with the plaintiff, which did not include any document dated 12 July 2017 or received at about that time). The plaintiff did not refer in subsequent correspondence with the defendant to having sent anything by 12 July 2017.

24. On 24 July 2017 Mr Pierotti sought a response to his email of 11 July 2017. Also on 24 July 2017, Ms Essey sent a letter to the plaintiff referring to the defendant’s letter of 28 June 2017 and sought a response. At 7.24pm on 26 July 2017 the plaintiff provided to Mr Pierotti her practice details (and gave an address in Elizabeth Street) and confirmed telephone and email details. Later that evening, at 8.27pm, Mr Pierotti again emailed the plaintiff and sought a response to his enquiry as to whether there was anyone in attendance at the address she had nominated as her practice address. By email sent by Mr Pierotti on 8 September 2017 (sent to the plaintiff at three email addresses which she had provided to the defendant, or used in correspondence with the defendant) Mr Pierotti wrote to the plaintiff in the following terms:

“Please telephone me as a matter of some urgency.

The Society is awaiting receipt of your response to a number of letters.

I also need to clarify with you your practice details.”

25. According to the plaintiff’s evidence in her affidavit of 29 January 2018, “documents” (unspecified) were sent by her to the defendant on 3 September 2017 (and 4 December 2017, see below). The plaintiff has not exhibited to her affidavit evidence, or otherwise tendered, the documents she said that she sent. The defendant has no record of having received any documents from the plaintiff at either of those times.

26. On 8 September 2017 Ms Essey wrote to the plaintiff in the following terms:

“Complaint by [Senior Counsel] against you

I refer to my letters dated 28 June 2017 & 24 July 2017 in relation to the above complaint, copies of which I enclose for your easy reference.

To date, I have received no response from you.

I would remind you of your obligations under rule 43.2 of the Australian Solicitors' Conduct Rules 2015. Please note that if l do not receive your written response to my letter dated 28 June 2017 (including any material in support) by 25 September 2017, consideration may be given to recommending to the delegate of the Law Society Council that an appropriate complaint be made against you.

Please let me have your written response to my letter dated 28 June 2017 by no later than 25 September 2017.”

27. I note, for completeness, that r 43 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) (the Conduct Rules) provides:

“43. Dealing with the regulatory authority

43.1   Subject only to his or her duty to the client, a solicitor must be open and frank in his or her dealings with a regulatory authority.

43.2    A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor’s conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.”

28. On 13 September 2017 the plaintiff emailed Mr Pierotti in response to his email of 8 September 2017 and said:

“I am home very unwell and will attend to [this] tomorrow.”

29. As no response was sent to the defendant, Mr Pierotti sent an email to the plaintiff (to at least two email addresses which had been provided by the plaintiff) on 28 September 2017 which said:

“Please telephone me urgently and before the long weekend.”

30. He sent a further email on 29 September 2017 which said:

“Please telephone me urgently.”

The third complaint

31. By letter dated 29 September 2017, the defendant notified the plaintiff of a new complaint made against her by a representative of Rapid Process Service (the Third Complaint). On the same day the defendant (through Gavin Connor, a trust account inspector) wrote to the plaintiff requesting information which had been previously requested from her in emails sent on 2 and 16 August 2017. The request was made pursuant to s 370 of the Uniform Law.

32. For completeness, I note that s 370 entitles an investigator of a regulatory authority to require the production of records or the provision of information relating to the affairs of a law practice. Like s 371 of the Uniform Law (referred to above) it is contained in Pt 7.2 of the Uniform Law, entitled “Requirements relating to documents, information and other assistance”.

33. On 3 October 2017 the plaintiff changed her email address on the defendant’s portal to an address which commenced “office”. Her gmail address was referred to as her “old” address. She did not notify Mr Pierotti directly of the change.

34. On 5 October 2017 Mr Pierotti rang the plaintiff’s mobile and asked her to call him urgently. He also left a message at the phone number she had given as her office number. The plaintiff responded in the following terms:

“I received a message at 12pm that you have called.

I am presently in a sentencing hearing in the Supreme Court for terrorism and am very busy as I am instructing senior counsel, required in the cells and additional preparation. I will not be in a position to call you back.

Please telephone me this evening if you can or tomorrow evening.”

35. At 9.17am on 9 October 2017 Mr Pierotti called the plaintiff again and left a message to say that he had not received any response and was concerned that she had abandoned her practice. At 9.24am Mr Pierotti rang the serviced office number which the plaintiff had provided to the defendant. The person who answered the phone told him that she could get in touch with the plaintiff by text if required. Mr Pierotti gave his mobile and office numbers to the receptionist and requested that she ask the plaintiff to call him.

36. At 9.26am that day Mr Pierotti sent the plaintiff a text as follows:

“Ms Burrows

You have not returned my many calls and emails.

The Society is concerned that you have left your practice. If that is the case it must proceed to appoint a manager.

I therefore need you to telephone me without delay.”

37. At 9.48am the plaintiff sent Mr Pierotti an email repeating her earlier message set out above. At 9.57am on 9 October 2017 Mr Pierotti sent the plaintiff an email saying that he had just received her email of 5 October 2017 and asked her to call him “URGENTLY”. The delay in emails sent by the plaintiff being received by their recipients is referred to by the plaintiff in emails set out below. At 10.14am the plaintiff sent Mr Pierotti two text messages which said:

“Just sent you an email, I can talk from car on way to counsel in 20 mins

Just waiting for a Gaol call.”

38. Mr Pierotti responded at 10.15am:

“Please call asap.”

39. At 10.13am on 9 October 2017 the plaintiff wrote a lengthy email to Mr Pierotti setting out her various professional commitments in trials and sentencing hearings. She also referred to difficulties she was having with her computer as follows:

“I have evidence of emails delayed and issues, server cannot explain and correspondence of issues for over 2 years. I believe my emails are monitored due to the matters I am instructed in.”

40. At 10.25am the plaintiff emailed Mr Pierotti in the following terms:

“I refer to your email a few minutes ago.

I sent the email Thursday [5 October 2017] at 1.46pm (as below).

I also sent you an email today at 10.12am as I received a message from you.”

41. At 11.09am the plaintiff sent a further text to Mr Pierotti:

“5 mins sorry.”

42. The plaintiff subsequently agreed to come to the defendant’s offices on 11 October 2017. This was confirmed by Mr Pierotti by email at 5.24pm on 10 October 2017 in the following terms:

“Please attend at the Society at 9am and ask for Ms Lai – I have left the material with her.

I also remind you that you have yet to respond to Ms Essey’s correspondence. Please do so without delay.”

43. At 9.37am on 11 October 2017 Mr Pierotti sent the plaintiff an email asking her to make arrangements to call Ms Lai as the plaintiff had not yet attended the defendant’s offices. The email concluded:

“Failing your attendance I will have to report the matter to the Director Professional Standards for instructions.

I cannot stress the importance of your compliance.”

44. It was common ground that, eventually, on 11 October 2017, the plaintiff attended the defendant’s office to collect documents.

45. On 21 November 2017 Mr Pierotti emailed the plaintiff at three of her email addresses (although not the new email address beginning “office” which was added to the defendant’s portal on 3 October 2017) in the following terms:

“I have been informed that you have not complied with Mr Connor’s Notice. Further, that you have not responded to Ms Essey’s correspondence.

Unless your (full) responses are received by close of business on Friday (24 November 2017) I will have no alternative than to consider referring your continuing failures to the Council/Professional Conduct Committee.”

46. On 27 November 2017 the plaintiff emailed Mr Pierotti (from her gmail address which was referred to as her “old email” on the portal on 3 October 2017 as well as her “new” (“office”) email) in the following terms:

“It has come to my attention this morning that my emails are being rejected to email poor reputation, perhaps occurs with my pdf attachments. An email sent to a lawyer at legal aid last Friday returned to me just now that email rejected.

I will drop off the printed responses and print emails previously sent (including last week) tomorrow morning. I am not attending today as I am home unwell. I will leave envelope at reception.

. . .”

47. On 28 November 2017 Mr Pierotti emailed the plaintiff as follows:

“I note your concerns regarding your email communications – I must leave that for you to deal with. . . .

Notwithstanding, the fact remains that I have been unable to reach you by telephone and you have failed to respond to written communications. This is a situation which cannot be permitted to continue.

I will request that I be informed if you do not respond to future communications. If that occurs, I will take instructions as to whether the Society should take formal action.

Please ensure that the material sought by Ms Essey AND Mr Connor is received today.”

48. On 1 December 2017 Mr Pierotti emailed the plaintiff as follows:

“Despite your e-mail of Monday last [27 November 2017], no material has been received.

I will, as foreshadowed, now take instructions as to what further action to take in respect of your continuing failure.”

49. On 4 December 2017 at 8.22am the plaintiff emailed Mr Pierotti as follows:

“As emailed I was unwell Tues and did not attend the city. I was in a pre-scheduled sensitive evidence view with detectives in gaol from Wednesday and to complete tomorrow.

I mailed correspondence Friday afternoon as did not return in time. In addition the pdfs were emailed. I can be in the city tomorrow at 445pm and drop another copy, otherwise expect the mail to arrive today to your office.

I suspect something very strange, especially when I have sent emails to you as recorded.

This will be another email relied upon in my response.”

The defendant’s email of 4 December 2017

50. On 4 December 2017 at 8.51am Mr Pierotti wrote to the plaintiff as follows:

“You will appreciate that the Society cannot be responsible for your email difficulties. Similarly, if you choose [t]o attend to other matters.

Unless your complete responses and any documents required are received by 4pm today I have instructions to commence the process to have Council consider the cessation of your right to practice.

The constant failure by you to comply with Society requirements has been noted with increasing concern.”

51. As referred to above, the plaintiff’s evidence is that she provided a response to this email. She has tendered an email which was apparently sent to the defendant at 11.39pm on 4 December 2017 to which was attached a pdf document. She has not adduced any evidence of what was actually attached to the email. I made several requests to Mr Newton in the course of the hearing for the documents said to be attached to the plaintiff’s email of 4 December 2017, but was informed that no such documents were available to be tendered. The defendant’s evidence is that it did not receive the email or the attachment. The defendant, which usually acknowledged receipt of correspondence with the plaintiff, did not acknowledge receipt. The plaintiff did not make any enquiries of the defendant whether her email had been received although she received no acknowledgement of receipt.

The defendant’s letter of 13 December 2017

52. At 10.30am on 13 December 2017 Mr Pierotti sent an email to the plaintiff (at three email addresses that she had previously provided, including the gmail address which she had used for the email of 27 November 2017). He did not send it to the email address commencing “office” which she had notified to the defendant’s portal on 3 October 2017. The covering email said:

“Please see attached letter which requires your URGENT attention”.

53. The letter attached to the email of 13 December 2017 said:

“I refer to your earlier communications with Mr Pierotti of this department.

I note that Mr Pierotti has been following you up on the requirements by Mr Connor, Trust Account Investigator, and Ms Essey, complaints Investigator, to produce material and information.

The last communication from you was an e-mail to Mr Pierotti on 4th instant. In your e-mail you indicated, in part, that you could be in the city the following day at 4.45pm and "drop another copy" of the material you say had previously been forwarded.

No further material was received from you.

In light of your continuing and repeated failures to comply with your professional and legal obligations to assist in the complaint investigation process and the trust account inspection process, I must put you on formal notice that I intend to refer your conduct to the Council of the Society to consider the immediate termination of your right to practice.

Any submissions you might wish the Council to consider should be received no later than 20 December 2017. All outstanding material and information requested by Ms Essey and Mr Connor should also be received by that date.

Finally, I note that you have complained as to your e-mail service. You will note that this letter has been e-mailed to all of your known e-mail addresses and hand delivered to your principal place of practice. As a practitioner, it is your responsibility to ensure that you have appropriate systems in place for the receipt of correspondence. No extension to the above timetable will be granted except in exceptional circumstances.”

54. At 1.55pm Genesis Offices (Genesis), a serviced officer provider used by the plaintiff, sent her an email with the subject line: “Mail received from the Law Society. Thanks.” I infer that this email notified the plaintiff that the hard copy of the defendant’s letter to her of 13 December 2017 (attached to the email referred to above) had been delivered to her practice address and that she was notified of its arrival by Genesis. After the email of 13 December 2017, Genesis and the plaintiff communicated on several occasions using at least one of the email addresses to which the defendant had sent its letter of 13 December 2017.

55. The plaintiff did not respond to the letter of 13 December 2017.

The defendant’s resolutions on 18 January 2018

56. On 18 January 2018 the defendant resolved, pursuant to s 77 of the Uniform Law, to suspend the plaintiff’s practising certificate and appoint a manager to the plaintiff’s practice.

57. The defendant also resolved, pursuant to s 266 of the Uniform Law to make the following complaint against the plaintiff:

“The Solicitor has continually failed to comply with requirements for information and/or documentation in the course of the Society’s investigation of a complaint and a trust account inspection.”

58. On 18 January 2018 the defendant issued a notice to the plaintiff pursuant to s 83 of the Uniform Law as well as a notice pursuant to ss 77, 81 and 464 of the Uniform Law which set out the resolutions made. The defendant provided the following reasons for the suspension:

“The Council, having regard to the fact that notwithstanding numerous priorrequests for information from the Solicitor, the Solicitor has consistently failed to comply with requests from both the Professional Standards Department and the Trust Account Investigator for information and/or material. Accordingly, Council is of the opinion that the Solicitor has shown such disregard for her professional and ethical obligations that she is, without more, presently unfit to continue in practice.”

59. Following the meeting, Mr Pierotti called the plaintiff to inform her of the suspension. By email sent at 1pm on 19 January 2018, the plaintiff wrote to Mr Pierotti as follows:

“I refer to the phone call received from you this morning informing me that my practising certificate was suspended by the Law Society Council.

l confirm that I did not receive by email or personal service the letter dated 13 December 2017 until today when you read the letter out loud to me over the phone and faxed a copy to my fax number. I note that the letter was not sent to my email [email protected], that was provided to the Law Society registry some time ago as my contact email. The letter acknowledges my complaint with previous email addresses.

I am unaware what application was made specifically to council, the exact grounds and nature of the application and the specifics of the actual decision made.

I would be most grateful if you would provide me these particulars by 4pm today so I can consider my options.”

The proceedings

60. On Monday 22 January 2018 the plaintiff filed a summons seeking to have her suspension set aside. It came before Lonergan J as duty judge. Her Honour listed the matter for final hearing on 2 February 2018 and made directions, including that the plaintiff’s evidence be served by 24 January 2018. At 4.57pm on Thursday 25 January 2018 the plaintiff served an affidavit out of time. It exhibited 229 pages.

61. On Monday 29 January 2018 (following the Australia Day long weekend) the plaintiff served a notice of motion seeking a stay of the suspension together with an affidavit in support.

62. On 30 January 2018 the defendant’s President instructed Anne-Marie Foord, the defendant’s Director of Professional Standards, to seek a resolution from the defendant to revoke the resolutions for the suspension of the plaintiff’s practising certificate and the appointment of a manager to her practice. At 9.29am on 30 January 2018 the defendant informed the plaintiff by email that the defendant would shortly revoke the suspension of her practising certificate and its decision to appoint a manager to her practice. Directions were proposed regarding costs. When the matter came before the duty judge that day, consent orders were made as well as directions for service of evidence to be relied on at the costs hearing.

63. On 31 January 2018 the defendant made the resolutions which had been proposed. The Registrar made orders that day for the service of submissions for the costs application.

Factual issues not resolved by the evidence

64. As referred to above the plaintiff’s evidence was that she provided responses to the defendant on dates which included 12 July 2017 and 4 December 2017. The defendant’s evidence was that no such responses had been received by the defendant.

65. The plaintiff’s evidence was that she did not receive the letter of 13 December 2017. The defendant’s evidence was that it emailed the letter to three email addresses of the plaintiff, at least one of which had been used by her on 27 November 2017; that it had hand delivered the letter to her practice address; and that the plaintiff had been notified of its delivery on 13 December 2017 by Genesis.

66. It is not appropriate that I embark on the task of resolving these issues of fact for the purposes of determining the costs applications.

Consideration

67. Mr Newton, who appeared for the plaintiff, submitted that the defendant’s conduct was “discourteous”, “unreasonable” and “unhelpful”, in that it moved to suspend the plaintiff’s practising certificate in circumstances where it had sent the letter of 13 December 2017 to an email address which was not the one she had registered at the portal (commencing “office”). He also submitted that it is a matter of convention that practitioners are on leave in the court vacation and that the defendant acted precipitately when it resolved to suspend the plaintiff’s practising certificate on 18 January 2018 on the basis of not obtaining a response to the letter it had sent on 13 December 2017. He contended that the defendant was in breach of the statutory requirement in s 316 of the Uniform Law that it “act in a fair manner”. Mr Newton summarised the grounds for the plaintiff’s application for costs as follows:

“My client does not seek to hide behind the pressure of other professional business to avoid responding to the Law Society. She simply says, 'I didn't get to know about it. If I got to know about it, it would have got priority and I would have dealt with it instantly because it's my livelihood at stake'.”

[tr. 24.15-.19, 18/5/18]

68. Mr Newton submitted further that the defendant ought to have telephoned the plaintiff on 4 December 2017 and 13 December 2017 to inform her of its correspondence. He said:

“It seems to me such a simple thing to expect from a professional body to go a little further to be courteous.”

[tr. 24.39-.40, 18/5/15]

69. I reject these submissions. The letter of 13 December 2017 was sent after a period of well over a year in which the plaintiff had failed to respond adequately, or at all, to complaints that the defendant had a statutory obligation “to deal with . . . as efficiently and expeditiously as practicable”: s 317 of the Uniform Law. It was sent by email to three known addresses as well as being hand-delivered to the address the plaintiff nominated as her practice address. The plaintiff had repeatedly given priority to other matters in preference to answering the defendant’s correspondence or meeting its deadlines. The systems she had put in place to receive correspondence from the defendant were, on her evidence, flawed. The mailboxes on her phone and her email were, on occasion, said to be full, such that she apparently could not receive communications from the defendant. Nonetheless, the hard copy of the letter was received and Genesis had told her of the delivery of a letter from the defendant on 13 December 2017 in accordance with their arrangement to alert her to incoming mail. However, it does not appear that she accorded it any priority. Indeed, it was the plaintiff’s evidence that she had not received it at all. It does not appear that the plaintiff did anything to collect the mail from Genesis and deal with it, although she had been informed of its delivery and the identity of the sender. Although the plaintiff said she sent documents to the defendant on 21 August 2017 and 4 December 2017 there is no evidence of what documents were actually sent by her 4 December 2017 and, in the case of 21 August 2017, no evidence, apart from her general statement to that effect, that anything at all was sent.

70. The defendant’s conduct could not fairly be described as either precipitate, discourteous or unreasonable. The chronology set out above shows, in my view, that the plaintiff’s conduct had a tendency to thwart the discharge of the defendant’s duty. The defendant had an obligation to use the means at its disposal to obtain a response from the plaintiff. When all prior warnings appeared to have gone unheeded, the defendant resorted to taking action under s 77 of the Uniform Law to suspend the plaintiff’s practising certificate.

71. I do not accept the plaintiff’s submission that her conduct was not sufficiently serious to warrant suspension as it did not involve any risk to the public. The defendant, as the regulatory authority, had an obligation to investigate complaints against the plaintiff. Her repeated disregard of correspondence left the defendant in the situation where it was not sure whether she had abandoned her practice, to the detriment of her clients, or whether she was just ignoring the defendant’s correspondence.

72. Although the plaintiff’s evidence was that she did not receive the letter of 13 December 2017, the uncontroverted evidence was that she was informed that it had been received by her service provider, Genesis. Had the plaintiff taken the time to read the letter, which she knew had been received at her practice address, she would, presumably, have taken the steps which she took after the suspension and thereby avoided the suspension and obviated the need for the proceedings. Ultimately, she was the author of the suspension since her conduct left the defendant with little alternative than to act as it did.

73. The effect of the plaintiff’s becoming aware of the defendant’s resolution to suspend her practising certificate was almost immediate. She responded relatively quickly to the complaint and replied in what I infer to have been a comprehensive manner to the defendant’s correspondence, which had been outstanding for a significant period. Such was the detail and quantity of her response that the defendant, at the earliest reasonable opportunity, resolved to lift the interim suspension. I understand that the defendant has since proceeded to continue its complaint processes in accordance with its usual procedures. The defendant’s preparedness to revoke the suspension once the long-awaited material had been received (with the result that the proceedings came to an end) evidences the reasonableness of the defendant’s conduct throughout.

74. Lawyers have an obligation to communicate honestly and in a timely fashion to the relevant regulatory authority with respect to complaints made about the lawyer. As was said by Smart J in Veghelyi v The Council of the Law Society of New South Wales (Unreported, Supreme Court of New South Wales, Smart J, 6 September 1989) at p6:

“It is important that solicitors respond promptly to the [Law] Society when it asks for a reply in response to complaints which have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often the reply should be delivered within a shorter period such as 7-10 days. Replies to the Law Society in respect of complaints warrant a high priority. Such replies should be full and complete and deal directly with complaints made.”

75. Rule 43.2 of the Solicitors Rules has enshrined this obligation which was recognised by the common law. Further, it is of significance that Parliament has provided that failure to comply with a notice from a regulatory authority (given pursuant to s 371) is capable of constituting unsatisfactory professional conduct or professional misconduct: s 466(6) of the Uniform Law. The definition of “professional misconduct” is, relevantly, conduct “that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice”. These provisions, and the consequences of breach, emphasise the importance placed by Parliament on the duty of a lawyer, such as the plaintiff, to communicate with a regulatory authorities, such as the defendant.

76. The narrative set out above indicates that the plaintiff accorded no particular priority to communications from the defendant. But for her repeated silence, non-responsiveness and tardiness, the defendant would not have had to resort to the tool of immediate suspension.

77. In these circumstances, I am satisfied that it is appropriate to order the plaintiff to pay the defendant’s costs. The parties did not suggest that there was any reason why the costs of this application ought not follow the event. Accordingly the costs will include the costs of this application.

78. It is desirable that the payment of costs not be delayed further. Having regard to the relatively short duration of the proceedings it may be appropriate to specify a gross sum for the costs of the proceedings pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), if agreement cannot be reached as to the appropriate sum. Provision will be made in the orders for such an application.

Orders

79. For the reasons given above, I make the following orders:

1. Order the plaintiff to pay the defendant’s costs of the proceedings, including the hearing on costs.

2. Grant leave to the defendant to apply for costs to be specified in a gross sum, such application to be made within 14 days hereof.

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Decision last updated: 23 May 2018