Green v Law Society of New South Wales

[2002] NSWADTAP 8

Appeal Panel

CITATION:	Green -v- Law Society of New South Wales [2002] NSWADTAP 8
PARTIES:	APPLICANT Michael Geoffrey Green RESPONDENT Council of the law Society of New South Wales
FILE NUMBER:	019046
HEARING DATES:	12/12/2001
SUBMISSIONS CLOSED:	12/12/2001
DATE OF DECISION:	12/12/2001
DECISION UNDER APPEAL:	Law Society of New South Wales -v- Michael Geoffrey Green [2001] NSWADT 142
BEFORE:	O'Connor K - DCJ (President); Clisdell RJ - Judicial Member; O'Neill A - Member
CATCHWORDS:	no evidence - scope of Tribunal Order - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	002020
DATE OF DECISION UNDER APPEAL:	08/23/2001
LEGISLATION CITED:	Legal Profession Act 1987 Workers Compensation Act 1987
CASES CITED:	Council of the Law Society of New South Wales v Green [2001] NSWADT 142 (23 August 2001) Keefe v Law Society of NSW (1998) 44 NSWLR 451 Bainbridge-Hawker v Minister of State for Trade and Customs (1958) 99 CLR 521 House v The King (1936) 55 CLR 499
REPRESENTATION:	APPLICANT In person RESPONDENT I Wales SC, barrister
ORDERS:	1. Appeal dismissed; 2. Appellant to pay the respondent’s costs of the appeal.

1 This is a revised version of the reasons delivered ex tempore at the conclusion of the hearing on 12 December 2001.

Background
2 The appeal is made by a legal practitioner (a solicitor) following findings of liability and penalty orders by the Legal Services Division in relation to Informations presented by the Council of the Law Society: Council of the Law Society of New South Wales v Green [2001] NSWADT 142 (23 August 2001).

3 The charges arise from a complaint by a barrister to the Law Society over delay in the payment of fees. On investigation the Law Society found that the relevant workers compensation settlement payment so far as it related to costs and expenses had been received some time before and had been deposited by the practitioner into his general account not his trust account.

4 The practitioner, in reply to the Law Society’s inquiries, took the view that the Society had no legitimate interest in how he handled the payment for costs and expenses.

5 In this area of practice, according to the practitioner, it is usual for the agreed amount for costs and expenses to be the subject of a separate payment in the form of a cheque payable to the firm. The conduct in issue relates to the practice of placing that amount directly into the general account without the client’s authority. The occurrence of this practice may have been influenced by the then operative s 122 of the Workers Compensation Act 1987, which provided that a solicitor is not entitled to recover from a client any costs in respect of proceedings under that Act.

6 On the other hand, s 61 of the Legal Profession Act 1987, as it stood at the relevant time, required that any payments received on behalf of clients or third parties must be paid into the trust account. Any doubts as to whether it was lawful to divert that component of the payment which is attributable to costs and expenses to the general account without relevant authority were resolved adversely to the practice by the disciplinary tribunal in 1997 and later by the Court of Appeal (Priestley, Sheller, Powell JJA): see now Keefe v Law Society of NSW (1998) 44 NSWLR 451 [in particular, ruling in respect of Complaint F rejecting a submission relying on s 122 of the Workers Compensation Act 1987, not recorded in the edited reasons appearing in the NSWLR but available in full on the Internet].

7 During the course of investigating the complaint the Law Society called on the practitioner to remedy the omission to pay counsel but he failed to take any action until September 2000 despite having settled and received payment in respect of the relevant matter more than 3 years before. Ultimately, the Council pressed charges of professional misconduct in regard to his conduct in paying settlement monies into his general account; his dilatoriness in paying counsel’s fees; and in relation to his responses to notices given to him in the course of the investigation.

8 The charges of professional conduct were itemised under five grounds: failure to provide information required by a trust account inspector in breach of s 55(3) and (5) of the Legal Profession Act (Grounds 2(a) and (b) of the information); failure to reply to investigator enquiries (Ground 5); failure to comply with a s 152 notice issued by an investigator (Ground 1); delay in paying counsel in respect of clients Burg and Dalu (Ground 3(a) and (b) respectively); and contravention of s 61 requiring monies received on behalf of clients and other third parties to be paid into the trust account in respect of the handling of the payment received for Burg (Ground 4).

9 The Division rejected a submission that as the Council was an unincorporated body of persons it did not have the requisite capacity and standing to bring proceedings under the Act.

10 The Division made findings of professional misconduct in respect of Grounds 1, 2(a), 3(a) and 4.

11 The Tribunal made the following orders:

‘1. The legal practitioner be publicly reprimanded.
2. The legal practitioner be fined the sum of $1,000.

3. Noting that the legal practitioner does not hold a current practising certificate, no fresh practising certificate be issued to the legal practitioner until such time as he has:

(a) fully complied, so far as he is able, with the Informant's Notice pursuant to s.152 of the Legal Profession Act and dated 3 February 1998, and
(b) paid the full amount of the fine that has been imposed.
4. If the legal practitioner again commences practice on his own account then his practice is, for a period of 12 months commencing from that date, to be subject to inspection at three monthly intervals at the expense of the legal practitioner by a suitably qualified Solicitor appointed by the Law Society for that purpose.

5. The legal practitioner, at his own cost, successfully complete the Best Practice Management course or its equivalent (to be determined by the Manager, Professional Standards Department of the Law Society of New South Wales) prior to his making an application for a practising certificate.

6. The legal practitioner pay the costs of the Council of the Law Society of New South Wales of these proceedings.’

Appeal
12 The practitioner appealed, and represented himself. In answer to the question on the appeal form, ‘what are the errors of law in the Tribunal’s decision’, the practitioner repeated the objection made in the original proceedings as to the question of the Council’s standing to bring the proceedings. He submitted that it lacked standing, thereby invalidating the notices given during the course of the investigation as well as the proceedings. At hearing he also queried the lawfulness of the delegation arrangements as between the Council and the Committees of the Law Society.

13 He made specific objections to the findings in respect of the four grounds upon which he been found guilty of professional misconduct. The fact-finding process is capable of giving rise to an error if there is no evidence for a finding, no probative evidence or the finding is manifestly unreasonable. The appellant alleged that there was no evidence in respect of each of the grounds, and further that if there was evidence in respect of the s 61 contravention there was no evidence to enable the Division as it had done to find it ‘wilful’ and therefore disgraceful. The objections to the Orders were related essentially to their practicability.

14 In addition he made written submissions dated 18 October 2001 elaborating on these grounds.

Reasons
15 All of the points raised with the exception of the s 61 point were technical and none of them, for the reasons that Mr Wales (counsel for the respondent) gave, raised questions of law.

16 Mr Wales submitted that the statutory scheme plainly empowers the Council, albeit a body of persons, to commence proceedings; and that in any event if there is a problem it is a mere irregularity that can not defeat the proceedings, citing Bainbridge-Hawker v Minister of State for Trade and Customs (1958) 99 CLR 521 at 554. As to the question of the adequacy of any delegations, he referred to passages from para [118] vol 17, Evidence, in Halsbury (4th ed). The question of adequacy of delegations was not raised, when it should have been, before the Tribunal below; and there was affidavit material from the relevant officer of the Law Society before the Tribunal going to that issue which was not challenged. There is no basis for opening that question now.

17 More generally, Mr Wales submitted that there was evidence before the Division upon which it was open to make the findings that it did. We agree.

18 The only point of any possible substance was the issue as to s 61 of the Legal Profession Act 1987 which it appeared was the matter about which Mr Green was most concerned.

19 But it is plain, in our view, that the law as it stood at the time of the conduct in issue was that it was not lawful for workers compensation payments in respect of costs to be paid into the general account. In a sense that point is underlined by the amendment that is now reflected in s 61A where the Parliament has expressly changed the position. (Section 61A provides that s 61 does not apply in respect of money received by a solicitor for a person claiming workers compensation for the payment of costs due to the solicitor in respect of the claim, being costs that have been awarded by the Compensation Court.)

20 That itself is an indication as to what the Parliament saw as the previous state of the law which is clearly in our view as set out in the submissions by Mr Wales.

21 As to the question of the practicality of the Orders, the practitioner conceded under questioning from the Appeal Panel that it would be possible for him to take steps to comply with Order 3(a). The practitioner’s objection to Order 4 was that it was a direction that it was open to the Law Society to give; and therefore need not have been made by the Tribunal. The order making powers of the Tribunal are broad, and in our view clearly encompass the possibility of an Order of this kind: see Legal Profession Act 1987, s 171C(2)(b). No question of power was raised in relation to the Tribunal’s capacity to make such an order or the order found in Order 5.

22 Towards the end of the hearing Mr Green conceded that the power to make Orders 3(a), 4 and 5 was given to the Tribunal by the legislation. In those circumstances it would only be by way of a House v The King (1936) 55 CLR 499 submission that one could raise the possibility of an error of law, that is, the discretion on penalty miscarried to so great an extent that it was a manifestly unreasonable exercise of the discretion. There was no suggestion of that in this case. Mr Green merely pointed towards issues that he saw as relevant to the practicability of the Orders. They are matters that were open to be canvassed in the primary proceedings.

23 Finally, Mr Green raised the question of being presented by the respondent with some authorities today that he had not had a prior opportunity to consider. Given the weakness of the points of appeal it is our view that no real prejudice could be demonstrated if there was in fact any lateness of provision of authorities. As to the only point that we saw as having any arguability, the s 61 point, the key authorities are well known, were canvassed in the primary hearing and were foreshadowed in the reply of the Law Society to the appeal.

ORDERS
1. Appeal dismissed.

2. Appellant to pay the respondent’s costs of the appeal.