Council of the Law Society of New South Wales v Sheehan
[2010] NSWADT 83
•6 April 2010
CITATION: Council of the Law Society of New South Wales v Sheehan [2010] NSWADT 83 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the Law Society of New South Wales
Marshall SheehanFILE NUMBER: 092007 HEARING DATES: 24 February 2010 SUBMISSIONS CLOSED: 3 March 2010
DATE OF DECISION:
6 April 2010BEFORE: Chesterman M - Deputy President; Mullane G - Judicial Member; Hayes E - Non-Judicial Member CATCHWORDS: Professional misconduct – solicitor – failure to comply with notice by investigator LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Administrative Decision Tribunal Rules 1998
Interpretation Act 1987
Legal Profession Act 1987Legal Profession Act 2004REPRESENTATION: APPLICANT:
RESPONDENT:
C A Webster, barrister
In person, by telephoneORDERS: 1. The Respondent is guilty of professional misconduct.
2. The following directions are made:-(a) The Applicant must file and serve on the Respondent by 21 April 2010 any written submissions in support of the orders sought. (b) The Respondent must file and serve by 12 May 2010 any written submissions in response.(c) The Applicant must file and serve any submissions in reply by 19 May 2010.(d) Unless the Tribunal is persuaded that a further hearing is required, it will decide the remaining questions ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997
REASONS FOR DECISION
The Application
1 This was a hearing of the application of the Law Society under section 551 of the Legal Profession Act 2004 (also referred to in these reasons as ‘the Act’) seeking a finding that the practitioner solicitor, Mr Sheehan, is guilty of professional misconduct and orders as follows:
1.1 The Tribunal recommends to the Law Institute of Victoria that the practising Certificate of Marshall Sheehan be suspended until he complies with the Section 660 Notice;
1.2Marshall Sheehan be fined;
1.3Marshall Sheehan be publicly reprimanded;
1.5 Such other orders as the Tribunal deems fit.1.4 Marshall Sheehan pay the costs of the Society; and
2 The applicant alleges that the practitioner, who is the holder of a practising certificate issued by the Law Institute of Victoria was served in 2007 with a notice under section 660 of the Act (by an investigator appointed by the Law Society of New South Wales) requiring the practitioner to produce a file in a matter where a former client had made a complaint against him of overcharging, or, if he was unable to produce the file, to provide a statutory declaration as to the reasons. The practitioner had acted for the client from his office in New South Wales, which he says he subsequently closed.
3 The practitioner has not produced the file or provided a statutory declaration setting out reasons why he cannot do so.
The relevant law
4 Para 660(1)(a) of the Act provides that:
(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one of the following:
(a) to produce, at a specified time and place, any specified document………….”
5 Subsection 660(3) creates a criminal offence of failing to comply with the requirement of a notice under Subsec 660(1), with a maximum penalty of 50 penalty units.
6 Subsection 660(4) of the Act provides:
(4) A requirement imposed upon a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance.
So far as we are aware, there is no other requirement as to how the writing is notified to the practitioner.
7 Subsection 676(3) of the Act provides:
(3) An Australian lawyer who is subject to:
(b) a requirement under provisions of a corresponding law that correspond to that section,
(a) a requirement under section 660 (Requirements in relation to complaint investigations), or
must not, without reasonable cause , fail to comply with the requirement.
8 Subsection 676(4) of the Act states:
(4) An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.”
9 Section 562 of the Act gives this Tribunal power to make various orders if satisfied that the practitioner has engaged in professional misconduct, including an order reprimanding the practitioner (para 562(2)(e)), an order recommending that the practitioner’s local practising certificate be suspended for a specified period or cancelled (para 562(2)(b)) and an order that the practitioner pay a fine (para 562(4)(a)).
10 Subsection 566(1) is:
(1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory conduct or professional misconduct to pay costs (including the costs of the Commissioner, a Council and the complainant) unless the Tribunal is satisfied that exceptional circumstances exist.”
Refusal of adjournment application
11 The Application was filed with the Tribunal on 11 May. On the first listing of the matter for directions on 1 July 2009, it appears the practitioner had not been served with the application. But he was aware of the matter being listed and had faxed a letter to the Registrar and provided a telephone number where he would be available to participate on 1 July. He was contacted on that number. He agreed to service by post and the matter was adjourned to 11 August for directions. He was then served with the application. It was posted by express post on 1 July addressed to him at his post office box in Beechworth Victoria.
12 On 11 August when the matter was listed the practitioner did not appear. He had filed no Notice in Reply to the Application. He had requested that he be able to participate by telephone. Attempts were made to contact him at the number he had supplied on 30 June, but that number had been disconnected. He was ordered to file a Reply within 21 days and the proceedings were adjourned to 9 September. He was notified of the directions and the adjournment by letters by the Law Society of 11 August addressed to him at the address of his practice at 6B Diffey Rd, Beechworth and to his post office box in Beechworth, and by a letter from the Tribunal of 12 August addressed to him at his post office box at Beechworth.
13 On 9 September the practitioner appeared by telephone. He had filed no Reply. He was ordered to file a Reply and any affidavit material he wished to rely upon within 21 days. The proceedings were adjourned to 7 October.
14 On 7 October a solicitor mentioned the matter for both parties. The practitioner had not filed a reply or any affidavit. By agreement an order was made for the practitioner to file and serve a reply by 16 October. The matter was listed for further directions on 4 November. The practitioner was notified of the adjournment, the new date and the direction for him to file his Reply and affidavit by 16 October by a letter from the Litigation Manager of the Professional Standards Department of the Law Society. This letter was sent by express post on 8 October to his post office box at Wodonga, Victoria, which address he had given the Tribunal at the directions hearing on 9 September 2009.
15 The Litigation Manager wrote to the practitioner again at the same address by letter dated 30 October and sent by express post. The letter reminded the practitioner that he had not filed his Reply and affidavit by 16 October, the date specified by the Tribunal direction. The letter informed him that the Law Society would on 4 November be seeking to have the proceedings listed for hearing. It asked when he would file his Reply and affidavit. The practitioner did not reply.
16 On Wednesday 4 November the practitioner participated in the directions hearing before the president of the Tribunal by telephone. No Reply or affidavit had been received from him by the Tribunal. He told the Tribunal that he had sent a Reply and an affidavit early in the previous week, which commenced Monday 26 October. An order was made for the Law Society to notify the practitioner if it did not receive his documents by 5 November, and the practitioner was then to file a further set of the documents. The matter was further adjourned to 2 December. No such documents were received by the Law Society by 5 November.
17 Mr Pierotti, a solicitor in the Professional Standards Department, phoned the practitioner on 6 November and advised that the practitioner’s documents had not been received by the Tribunal or the Law Society. The practitioner said he would re-swear and send the documents. But he did not. The practitioner did not file a reply or an affidavit as required by the order of 4 November.
18 On 2 December the practitioner did not appear, although he had been present when the matter was adjourned to that date. Attempts to contact him on his landline and his mobile revealed that both numbers had been disconnected. The proceedings were fixed for hearing at 10 am on 24 February. The practitioner was notified of the fixing of the matter for hearing by a letter from the Registrar of the Tribunal of 4 December, addressed to him at his post office box at Wodonga, and by a letter from the Law Society of 1 December, addressed to him at the same address. In the Registrar’s letter he was informed of the Tribunal’s direction that his attention be drawn to Part 3, Division 2, Rule 27 of the Tribunal’s Rules.
19 Rule 27 of the Administrative Decisions Tribunal Rules 1998 (“the Rules”) provides in relation to the Legal Services Division:
Lodgment of a reply to information
(2) The reply must:(1) The legal practitioner in respect of whom an information is lodged must lodge with the Tribunal a reply to the information as required by section 167 of the Legal Profession Act 1987 within 21 days from the day on which the documents referred to in rule 26 are served.
(b) traverse each allegation in the information with which the legal practitioner takes issue and must state in summary form any material facts and circumstances on which the legal practitioner relies.
(a) be in or to the effect of the approved form, and
(3) If the legal practitioner fails to lodge with the Tribunal a reply complying with subrule (2) within the time specified by subrule (1) or such further time as the Tribunal allows, the legal practitioner may not lead evidence on the hearing of the information in relation to any matter of which notice should have been given in a reply unless the Tribunal grants leave to do so.
20 It is noted that there is no provision in the Act corresponding to section 167 of the Legal Profession Act 1987.
21 By a letter dated 23 December 2009 from the Registrar, addressed to the practitioner at his previous business address at Beechworth, the practitioner was notified of the hearing date and the proposed composition of the bench. He was asked to confirm he had no objections to the proposed bench. He did not reply. The practitioner’s evidence is that since he has moved his place of business from Beechworth to Wodonga, he has had a redirection arrangement with the post office for mail for him addressed to Beechworth to be redirected to his Wodonga post office box.
22 The Registrar sent a similar letter to the Law Society on 23 December and the Law Society responded on 4 January noting that the matter was for hearing on 24 February and advising that it had no objection to the proposed constitution of the panel. The Law Society sent a letter enclosing a copy of that letter and addressed to the practitioner at his post office box at Wodonga.
23 The proceedings were listed for hearing at 10 am on 24 February in Sydney. No Reply or affidavit material had been filed with the Tribunal on behalf of the practitioner or served on the Law Society.
24 The listing of the matter for hearing was repeatedly delayed and numerous directions made for the practitioner to file a Reply and any affidavit material he sought to rely upon. But he filed nothing in the 7 months between service of the application on him and the hearing. He did not by a Reply dispute any of the allegations in the Application and affidavit filed by the Law Society.
25 The practitioner eventually appeared by telephone on 24 February. He asked for the hearing to be adjourned on the basis that he had not had adequate notice of the hearing and needed more time to prepare and arrange representation. We did not believe his evidence as to when he received notice. He claimed he had not received any of the letters from the Tribunal and the Law Society, sent to him on 1 December, 4 December and 23 December, that included notice of the hearing date. None of the two letters from the Tribunal has been returned to the Tribunal and the Law Society Letter of 1 December was sent by express post and has not been returned. We did not believe him. He told the Tribunal that he did not receive the letter from the law Society of 4 January into his mailbox until Monday 22 February, seven weeks later. We did not believe him.
26 In the course of his submissions in support of the adjournment application we raised with him issues about his credit, particularly his suggestion that his documents went to the AAT by mistake; his spurious objections to the notice as to service and it being a copy; his misrepresentation of the letter accompanying the original notice as only telling him it enclosed a copy of a notice that would be served upon him; his failure to raise at any prior time an allegation that when the notice was served he did not have the relevant file and has not had it since 2005; his failure to honour a representation to the Tribunal that he would refile his documents if they were not received by the Tribunal by 5 November; his allegations that he didn’t receive various letters; his repeated non-compliance with directions; and his failure to file any Reply during the period of almost seven months when the matter had been before the Tribunal. Our more detailed findings on some of those matters are set out later under the heading ‘Credit of the Respondent practitioner’.
27 We find that the practitioner knew from early December that the proceedings were listed for hearing on 24 February, but still did nothing to prepare.
28 Rule 29 of the Rules provides that the Legal Services Division of the Tribunal may proceed with a hearing in the absence of the practitioner if it is satisfied that:
(a) The Information and Accompanying documents have been served on the practitioner;
(b) The time for a reply, and any extension ordered by the Tribunal has expired;
(d) Sufficient notice of the date of the hearing has been given to the practitioner.(c ) The time specified by the Tribunal for compliance with any direction has expired; and
29 In all the circumstances we were satisfied that the practitioner had ample notice of the hearing date and more than ample time to arrange representation and file any Reply and affidavits. We therefore refused the application for an adjournment.
Credit of the practitioner
30 There is a series of matters that reflect adversely on the credit of the practitioner.
31 When he wrote to the Law Society by fax of 5 December 2007 he said he had been away ‘on leave’ and did not receive the correspondence until 4 December. He said:
I shall assume that you will hold all actions regarding the matters that you raise until my replies are received and given proper consideration.I shall have a reply to you by 5 pm Friday the 7 December.
32 However, his faxed response, although dated 6 December, was not faxed to the Law Society until 13 December.
33 The Manager of the Professional Standards Department wrote to him on 12 February 2008. The letter was addressed to his post office box at Beechworth. In that letter the Manager reminded the practitioner that he had not complied with the notice, enclosed a copy of the notice and asked the practitioner to comply with the notice within 14 days.
34 Ms Ong, a solicitor in the Professional Standards Department, wrote to the practitioner on 7 March 2008. The letter was addressed to him at his post office box in Beechworth. The letter noted that he had not produced the file or provided a statutory declaration setting out reasons for any inability to produce it. It warned him that the Professional Conduct Committee of the Society would therefore be requested to consider making a complaint against him under the Act.
35 On 9 April 2008 Ms Ong wrote to him and told him that the Professional Conduct Committee would at its meeting on 19 April be considering whether to make a complaint against him for failing to comply with the notice.
36 Ms Ong wrote to him on 21 April 2008. The letter was addressed to him at his post office box in Beechworth. She informed him that the Professional Conduct Committee had decided to lodge a complaint against him under section 504 of the Act for failure to comply with the notice. She enclosed a further copy of the notice and copies of earlier correspondence to him. She invited any submissions he wanted to make in response.
37 The practitioner replied by his letter of 8 May, almost six months after the notice was served. In that letter he claimed he had never been served with a notice under Section 660 of the Act. He said:
Although you have told me that you proposed to serve a section 660 Notice on me this has never been done. I have never been served with a section 660 Notice. You have provided me with a copy of such a Notice, this copy has an incorrect address on it. With respect, you cannot found a complaint against me for not complying with a Section 660 notice that has not been served on me. Ipso facto there is no prospect of me being found to have not complied with a section 660 Notice and this complaint should be dismissed.
38 Ms Ong responded by a letter of 13 May enclosing a copy of the practitioner’s fax of 5 December 2007 acknowledging receipt of the notice. She had tried to send a fax to him at the fax number on his letterhead, but found the fax could not be sent to that number. When she called the number by phone, there was a message that the number had been disconnected.
39 The practitioner then sent a fax on 29 May 2008. It was dated 27 May and was transmitted from the number on his letterhead for telephone and fax. In that fax he said regarding the notice:
The letter that was faxed to me by the Society on the 5 December 2007 acknowledges receipt by me of a letter to me from Ms Thorman dated the 13 November 2007 in which Ms Thorman states:With regard to my letter of the 8 May I correctly stated therein “I have never been served with a section 660 Notice”.
I enclose a copy of a letter enclosing a Notice under section 660 of the Legal Profession Act 2004.
Please note that the original has been forwarded by post to your business address by way of service.
Clearly Ms Thorman intended to put me on notice that she intended to serve me with a section 660 notice and that she intended to serve the section 660 notice on me by post at my business address.I have never received the Section 660 notice that Ms Thorman referred to as the “original” notice that was to be served.
Ipso facto I have not been served with the Section 660 Notice. Although Ms Thorman clearly intended to serve the “original” on me.
It is clear that Ms Thorman did not intend me to act upon the copy notice. It is clear that Ms Thorman intended me to act on “original” notice when it was served.
As the “original” notice has not been served I am clearly not obligated to respond to the copy.
When I responded to you that “I have never been served with the section 660 notice” I was giving you the correct position.
However, if you would like me to comply with the so called “original” section 660 Notice then you should serve it on me, then I will do so.If you would like me to respond to the copy section 660 notice you should advise me of this and I will do so.
40 By letter of 4 June 2008 addressed to the practitioner at his Beechworth post office box, Ms Ong stated:
I refer to your letter dated 27 May 2008.
The letter that you quote began with the sentence “I enclose a copy of a letter enclosing a Notice under Section 660 of the Legal Profession Act, 2004” , clearly noted on the right hand side the words “By Fax: 03 5728 2163”.
That letter could not be faxed to you successfully on 13 November 2007.
You fail to mention that there was a further letter also dated 13 November 2007 which commenced with:
“As you will be aware, I am investigating the complaint made with regard to your conduct …
Enclosed is a Notice under Section 660 of the Legal Profession Act, 2004.”
Both letters dated 13 November 2007 were posted to you. In this respect, I draw your attention to the provisions of Section 727 of the Legal Profession Act, 2004 in relation to service of notices on practitioners.
There is no requirement under Section 660 that you be served with the original of the Notice – see section 660(4). You have known about the requirement in the notice to produce your file in the matter of Dion Brian Sullivan v RACV Insurance Manufacturers of Australia Pty Limited since 4 December 2007 as noted in your faxed letter of 5 December 2007. An extension of 14 days from Mr Ray Collins’ letter to you of 13 February 2008 was given to you and I note that a further copy of the Section 660 Notice was successfully faxed to you on 12 February 2008.
There is a continuing non compliance with the Notice by you until and unless you produce the required file to the Society. The file should be produced by secure means ie by courier or by registered mail and I would expect that evidence of the forwarding of such file will be retained securely by you, in case the same in required.
Thereafter, I propose to prepare my report in relation to your non compliance with the Notice in due course for consideration by the Committee.If there are any further submissions that you wish to make in relation to your failure to comply with the Notice, you are at liberty to forward those submissions to me within the next 14 days.
41 It is clear that either of the letters sending the section 660 notice to the practitioner by post would be adequate service of the notice under subsection 660(4) of the Act and he received both of them. The argument the practitioner raised that the notice was not properly served had no legal basis. He is a legal practitioner. He conceded at the hearing that he did not at any time look at the Act to see what the requirements were for giving a section 660 notice to a practitioner. He gave sworn evidence that he had received advice that ‘the Acts Interpretation Act’ required that the notice ‘had to be formally served’. He did not disclose the source of such alleged advice. He did not refer us to any provision in that Act. There is no NSW legislation of that name.
42 The Acts Interpretation Act 1901 (Cth) does not apply to NSW legislation, such as the Legal Profession Act 2004. In any event Section 28A of that Commonwealth Act, which relates to ‘service of documents does not contain any provision requiring ‘formal service’. In subsection 28A(1) it provides that if a document is required or permitted to be served on, given to, or sent to a person, ‘then unless the contrary intention appears’ it can be served by delivering it to the person personally or by leaving it at, or sending it by prepaid post to, the place of residence or business last known to the person serving it. So even if the practitioner mistakenly believed that Act applied, if he read the relevant provision, he would have known that ‘formal service’ was not required. He did not read that provision.
43 We have referred to the Interpretation Act 1987 (NSW), but could find no provision of any relevance to the argument the practitioner raised.
44 On the balance of probabilities the practitioner did not believe that formal service was required, when he purported that he did.
45 The objections he raised to the notices he received also misrepresented what was said in the letters accompanying them. The objections the practitioner raised – that the letters purported only that the enclosure was a copy of a notice that it was proposed to serve on him, that service of the copy was ineffective, and that ‘formal service’ of the notice was required – were all spurious objections without merit. He was a lawyer and dealing with a very serious threat to his livelihood. But he did not raise the objections till almost six months passed and he did not research the requirements of the Act as to serving him with the notice. In raising these objections he demonstrated he was not bona fide.
46 This was further illustrated by his submissions and evidence at the hearing. He told the Tribunal: ‘I was never served with the notice. I was served with a copy and a letter saying they were going to serve it on me.’ And later he said the letter with the notice said, ‘this is a notice we are going to serve on you’ and it was sent to an incorrect address. Of course, the letter that was wrongly addressed was addressed to him at 6B Bissey Road Beechworth instead of 6B Diffey Road, and that letter from Ms Thorman was the letter that did not refer to any copy of the notice. It recited that pursuant to section 660 she could require him by notice to ‘provide information, produce information and otherwise assist in, and co-operate with, the investigation’. It concluded: ‘Enclosed is a Notice under Section 660 of the Legal Profession Act, 2004. Please respond in accordance with its requirements and notes.’
47 When asked in cross examination if he received that letter he said he couldn’t say. When it was identified to him, he said he couldn’t ‘specifically recall what documents I have because I’m not at my office’. The hearing was adjourned for him to go to his office and then the cross-examination proceeded. In the course of that cross-examination he was asked twice whether he received that letter and the notice enclosed. He was evasive. The both times he responded ‘by facsimile’, which is on the evidence clearly incorrect. Then it was put to him that he received the notice and he responded, ‘Yes, but I wrote and asked if they wanted me to act on it because it was not the original’. That was untrue on two counts; as to what he wrote and as to it not being an original.
48 On 6 November 2009. Mr Pierotti, a solicitor with the Professional Standards Department, telephoned the practitioner and told him his documents had not been received by the Tribunal or the Law Society. The practitioner told Mr Pierotti that he thought the documents had gone to the Administrative Appeals Tribunal. This is a very peculiar response.
49 By October (he alleged on 4 November he sent his documents to the Tribunal in the last week of October) the practitioner had been served with the Application in this Tribunal, had participated by telephone in two directions hearings in this Tribunal, and had written a letter to the Tribunal on 30 June 2009, correctly addressed to the Registrar of the Tribunal at its address, ‘Level 15, St James Centre, 111 Elizabeth St, Sydney NSW’.
50 The practitioner offered no explanation as to why he thought the documents might have gone to the AAT. There is no evidence that he may have addressed them to the AAT and no reason that he would. One would have thought that if the documents went to the AAT, it would forward them to the Tribunal. No such documents have been received by the Tribunal or returned to the Law Society. Our finding is that he did not send any such documents and his suggestion about documents going to the AAT was fabrication.
51 In the hearing on 24 February in submissions in support of his application for an adjournment, the practitioner told the Tribunal that the first notice he had of the hearing date was when he received the letter of 4 January at his Post Office box at Wodonga ‘yesterday’ (23 February). Later he contradicted that when he said that he or his secretary collect the mail daily and the letter was collected on Monday (22nd) but he didn’t read it till the morning of the hearing (24th) as he was in court on the Monday and Tuesday.
52 When he first participated in the hearing he told the Tribunal he had two defences and his Reply would be brief. He said his first defence was that he was not served with the notice. He said his second defence was ‘they wanted a file that was not in my possession since 2005’. If the file was not in his possession when he was served with the notice then the appropriate response to the notice was to provide a Statutory Declaration to that effect.
53 But he did not do that. Indeed he did nothing to address the requirements of the notice until his fax sent 13 December, a whole month after the notice was sent to him. By then he had had the letter at least thre weeks. And he did not in that fax, or his previous fax of 5 December, say that he did not have the file the notice required him to produce. Indeed he did not raise that allegation in any correspondence with the Law Society or at any of the directions hearings. On the evidence we find he did not raise it at any time with the Law Society or the Tribunal in the 26 months from when he received the notice and the hearing.
54 What the practitioner asked the Tribunal to believe was that he has not had the file since 2005 and yet instead of raising this as an issue in response to the notice, he raised the spurious objection that, although he had received the notice, it had not been ‘served.
55 But he also contradicted himself on this issue. Shortly after he told the Tribunal that he hadn’t had the file since 2005, he said, ‘It’s not my file and it hasn’t been in my possession for 2 years.’ He claimed he had previously told the Tribunal this, but there is no record of it in the records of the directions hearings before us. He said at the hearing ‘the file is with Gerard McCarthy at Gerringong’ and ‘it was his client. He’s had the file since at least June 2005.’ He claimed the file belonged to Mr McCarthy and the practitioner returned it after doing work in the matter. Then when his adjournment application was refused, and still before he gave evidence, he told the Tribunal ‘I can comply with the notice within 24 hours.’ Later in sworn evidence he testified that he had returned the file to Mr McCarthy ‘before I closed my New South Wales practice in June 2005’.
56 Later in his evidence he alleged that he told Ms Thorman that he didn’t have the file, but said he wasn’t sure it was her. Later he said it was Ms Thorman or Ms Ong. Eventually he conceded, ‘maybe I didn’t tell the Law Society I didn’t have the file. I can’t say because I don’t have all the papers with me.’ We have no doubt that the first time he alleged he did not have the file when the notice was served was more than two years later at the hearing.
57 On 24 February, after the evidence and the submissions from counsel for the Applicant on the issue of whether the practitioner is guilty of professional misconduct, the practitioner told the Tribunal he would prefer to have an adjournment so that he could make written submissions on that issue. We therefore made directions for him to file and serve his submissions on that issue by 3 March and the Applicant to then file and serve any submissions in reply by 10 March. At the time of delivering this decision there have been no written submissions by the practitioner.
58 The practitioner was a person of very poor credit. He often lied and is very unreliable.
Non-compliance with the Notice
59 On 6 October 2005, the Council of the Law Society appointed a member of its Professional Standards Department, Monica Thorman, to investigate complaints about the practitioner under Parts 2.2 and 2.4 of Chapter 2 of the Act. The complaint of Dion Brian Sullivan of overcharging in relation to his claim against RACV Insurance Manufacturers of Australia was such a complaint.
60 There were other complaints against the practitioner arising out of his practice in New South Wales and Ms Thorman had correspondence with him about this and other matters. In his evidence on 24 February the Practitioner referred to him having dealings with Ms Thorman before and about 13 November 2007. He did not dispute or question that she was at those times an investigator for the Law Society, as she indicated on the Section 660 notice dated 13 November 2007.
61 The notice is in the following terms and signed by Ms Thorman:
I, Monica Thorman in exercise of the powers given to me by Section 660 of the Legal Profession Act, 2004 require you, Marshall Sheehan, an Australian lawyer:
To produce to me, on or before the twenty-first day after service on you of this notice, the documents specified in the Schedule below at the offices of the Professional Standards Department, 7th Floor, Law Society Building, 170 Phillip Street, Sydney;
SCHEDULE
The file of Marshall Sheehan & Associates in the matter of Dion Brian Sullivan –v- RACV Insurance Manufacturers of Australia Pty Ltd
If you, Marshall Sheehan are unable to comply with the preceding requirement, you must provide a statutory declaration to me on or before twenty-one days after service of this notice stating the reasons for your inability to so comply.
62 On 13 November 2007 the original notice was sent with a covering letter to the practitioner by prepaid post addressed to him at 6B Bissey Road, Beechworth, Victoria 3747. A copy of the notice was sent to him with another covering letter addressed to him at his post office box, ‘PO Box 320 Beechworth, VIC 3747’. Attempts to send the notice and covering letter to the fax number shown on his then letterhead were unsuccessful. By an undated fax sent on 5 December 2007 to the Manager of the Law Society Professional Standards Department he acknowledged ‘Notices received from Ms Thorman’. Apparently he received both of the letters.
63 The evidence establishes that the original notice and a copy and accompanying letters were probably delivered by the post office within a few days of 13 November 2007. The practitioner alleged in his fax of 5 December that he did not receive those documents until 4 December because he was away on leave. It is not necessary to decide whether that is true, because the period for compliance was 21 days from receipt of the notice, and he certainly had the notice by 4 December.
64 The service of the notice by post satisfied the requirements of Subsection 660(4). The period specified for compliance (21 days from receipt of the notice) was on the evidence a reasonable period. The practitioner was required to produce the file or provide a statutory declaration as to why he was unable to produce the file. The practitioner did neither.
65 If he had the file, he should have produced it. If he did not have the file, he should have provided the declaration. He did neither of these things. The practitioner has not established any reasonable excuse for his failure to comply and has therefore contravened subsection 676(3).
66 We therefore find under subsection 676(4) of the Act that the practitioner is guilty of professional misconduct.
Further directions
67 We make the following directions for the further conduct of this matter:
(a) The Applicant must file and serve on the Respondent by 21 April 2010 any written submissions in support of the orders sought.
(c) The Applicant must file and serve any submissions in reply by 19 May 2010.(b) The Respondent must file and serve by 12 May 2010 any written submissions in response.
(d) Unless the Tribunal is persuaded that a further hearing is required, it will decide the remaining questions ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
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