Law Society of New South Wales v Dwyer

[2006] NSWADT 247

CITATION:	Law Society of New South Wales v Dwyer [2006] NSWADT 247
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Bronwyn Ann Dwyer
FILE NUMBER:	052036
HEARING DATES:	27/06/2006
SUBMISSIONS CLOSED:	06/27/2006
DATE OF DECISION:	08/17/2006
BEFORE:	Vass CB -Judicial Member; Currie JS - Judicial Member; O'Neill A - Non Judicial Member
CATCHWORDS:	Solicitor - disciplinary application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 2004
CASES CITED:	Allinson -v- General Council of Medical Education and Registration (1894) 1 QB 750 at 763: [1891-4] All Er Rep 768 Brigenshaw -v- Brigenshaw (1938) 60 CLR 336 at 368 and at 350 In Re Vickrey (1931) 1 CL 572 Incorporated Law Institute of New South Wales –v Meagher (1989) 9 CLR 655 Kennedy -v- Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 Law Society of New South Wales -v- Hill [2002] NSW ADT 190 Law Society of New South Wales -v- Lucas [2004] NSW ADT 231 Law Society of New South Wales -v- McNamara (1980) 48 NSWLR 72 Neat Holdings Pty Ltd -v- Karajan Holdings Pty Ltd (1992) 110 LR 449 New South Wales Bar Association – Kalaf (CA) (NSW) unreported New South Wales Bar Association -v- Cummins (2001) 52 NSWLR 279 Re: Hodgekiss (1962) SR (NSW) 340 Rejfek -v- McElroy (1965) 112 CLR 517 Rondel -v- Worsley [1969] 1 AC 191 at 227; [1967] All Er 993
REPRESENTATION:	APPLICANT I Wales, SC RESPONDENT G Walsh, solicitor
ORDERS:	1.The Solicitor be publicly reprimanded; 2.The Solicitor pay the costs of the Council of the Law Society of New South Wales

1 The Council of the Law Society of New South Wales (the Law Society) filed an Application for Original Decision alleging that Bronwyn Ann Dwyer (the Solicitor) was guilty of professional misconduct upon two grounds. The first ground is that the Solicitor failed to inform a Mr Reed, the Complainant, that the Court had dismissed proceedings, in which he was the Plaintiff, because of inactivity and the particulars given to support that allegation are:

(i) Mr Reed instructed the firm Back Schwartz Vaughan by whom the Solicitor was employed, to act for him in relation to an action for defamation against one Hugh Veness, on the basis of an article allegedly authored and published by Mr Veness in the National Parks Journal.

(ii) Proceedings were commenced by the firm, being the Port Macquarie News Case and the proceedings (the subject of Mr Reed’s complaint).

(iii) The Port Macquarie News Case settled in 1994 when the defendants agreed to pay a certain sum to Mr Reed and a deed of release was executed by the parties.

(iv) In 1995 a principal of the firm, Frank Back, wrote to Mr Reed in terms to the effect, “…as far as we are aware there are no outstanding matters to be attended to by us on your behalf.”

(v) The Solicitor became responsible for conduct of the matter on or about 10 July 2000, when the firm received a letter of that date from the Court, giving notice of dismissal of the proceedings for inactivity under Part 32A, Supreme Court Rules.

(vi) On 13 September 2000, following some correspondence between the Court and the Solicitor, and the Solicitor and Mr Reed, the Court dismissed the proceedings pursuant to Part 32A.

(vii) On 14 March 2001, 24 May 2001 and 2 November 2001 Mr Reed forwarded letters to the Solicitor enquiring as to the state of the proceedings.

(viii) The Solicitor did not reply to any of these letters.

(ix) On 26 July 2002, following numerous telephone calls from Mr Reed to the Solicitor, the Solicitor informed Mr Reed that the proceedings had been dismissed.

2 The allegation in ground two is that the Solicitor misled or attempted to mislead the Law Society and the particulars given to support that allegation are a repeat of the particulars given in support of ground one and in addition. That:

(x) The Solicitor asserted that at sometime in 2000, after Mr Reed had provided a sum of $2000 for Counsel, Mr Reed telephoned the Solicitor and at that time she informed him that his matter had been dismissed: paragraph 1 on page 3 of the Solicitor’s letter to the Society dated 15.11.02 read together with paragraph 2.5 on page 2 of the Solicitor’s letter to the Society dated 18.2.03 and paragraph 2 of the letter from the Solicitor to the Society dated 10.4.2003.

(xi) The above statement is misleading as:

(a) Mr Reed did not telephone the Solicitor as asserted by the Solicitor.

(b) The Solicitor did not inform Mr Reed that the matter had been dismissed until sometime towards the end of July 2002.

3 In relation to ground one the Solicitor has filed a Reply in which she admits that she failed to inform Mr Reed in the year 2000 that the Court had dismissed the proceedings because of inactivity but she goes on to say that it has always been her state of mind that she in fact did so.

4 In relation to ground two, the Solicitor did not admit that ground on the basis that she has the honestly held belief that she had spoken to Mr Reed.

Background

5 The starting point as to the background of this matter occurred as long ago as 20 December 1986. On that date an article was published in a newspaper owned by Port Macquarie Newspapers Pty Limited about Mr Reed. The author was a Mr Veness. The subject article was also published in identical terms in the National Parks and Wildlife Journal.

6 In March 1987, Mr Reed instructed Back Schwartz Vaughan to act on his behalf in relation to a defamation action against Port Macquarie Newspapers Pty Limited and against Veness.

7 In or about October 1987, separate proceedings were instituted in the Supreme Court of New South Wales at Sydney being No 18779/87 against Port Macquarie Newspapers Pty Limited and Mr Veness and No 18778/87 against Mr Veness only. The latter action related to the publication of the same article in the National Parks and Wildlife Journal. The latter publication apparently was of a more limited nature to that of the newspaper in the locale where Mr Reed resided.

8 On 23 February 1988, the Defences to the respective actions were filed. The matters were being conducted basically on the payment of disbursements until the matters were resolved.

9 The conduct of the matter was taken over by a Ms Goodman in December 1987 and subsequently by Mr Bechelli in April 1991.

10 In October 1991, interrogatories were served in both matters.

11 In February 1992, answers to interrogatories were received.

12 In January 1993, answers to interrogatories were received.

13 In February 1993 a Motion was filed to Amend the Statement of Claim so as to join the National Parks Association of New South Wales and this occurred on 26 February 1993. A Defence was filed in that matter by the Second Defendant on 27 September 1993. A Defence was filed by National Parks Association on 28 September 1993.

14 The action is respect of proceedings No 18779/1997 was fixed for hearing on 5 September 1994.

15 On 18 August 1994, that action was settled by way of the execution of a Deed of Settlement and a Notice of Discontinuance. The parties to the Deed were Messrs Reed and Veness and Port Macquarie Newspapers Pty Limited. Mr Reed was to be paid an amount of $14,000.00 and Mr Reed released Veness and Port Macquarie Newspapers Pty Limited from any claim, action, suit or proceedings which Mr Reed now has or at any time thereafter may have had arising from the publication of the article by the Releasees.

16 On or about 18 July 2000, the Solicitor was asked by Mr Back, a Senior Partner of Back Schwartz Vaughan to deal with the Notice that had been received from the Supreme Court in respect of the remaining defamation action of Mr Reed. That Notice was issued pursuant to Part 32A of the Supreme Court Rules.

17 At the time of the request by Mr Back, the Solicitor had been employed with the firm for approximately six years. She had not had the previous carriage of the matter.

18 On 19 July 2000, a letter was forwarded by Back Schwartz Vaughan to Mr Reed at his address at Brombin via Beechwood. That letter annexed a copy of the Notice received from the Supreme Court and requested Mr Reed to inform the Solicitor if he proposed to take any further action in the matter. The letter went on to state that if no action is taken the matter will be “struck out”.

19 On 13 August 2000, Mr Reed wrote to Back Schwartz Vaughan. In that letter, Mr Reed acknowledged having received the correspondence from the Solicitor together with the Notice from the Supreme Court. He referred to having contacted a woman at the Supreme Court and that she advised him to respond as quickly as possible. He then went on to state:

“unless you have sound advice against proceeding then please regard this as my instructions to proceed with the matter and notify the Court accordingly in response to its Notice.”

20 The letter went on to state:

“…as both cases were the same, I have paid you half the costs and offered to pay the remainder on the settlement of the second. You responded by letter and this was the last I’d heard from you until Friday that there was no outstanding matters with you that you were handling on my behalf. I replied indicating this case existed, but you never came back to me. For a number of reasons I never pressured you further in the matter. But it seems these things just don’t go away, and therefore unless you convince me otherwise we should proceed and try to get a settlement. If I got it on one with the same defence and arguments, I can’t see why I can’t achieve it on this one too.”

21 The aforementioned letter was specifically addressed to Mr Frank Back.

22 On 17 August 2000, a further letter was written by Mr Reed to the specific attention of the Solicitor. In this letter he annexed a copy of the letter forwarded to the Supreme Court and raised a query as to whether any representations had been made to the Court:

“in accordance with my instructions or whether you have contacted the Court in any way”. The letter specifically states “I must ask you once again to ensure this matter is not struck out by ensuring the Court is properly informed of my intention to continue with the case”

23 As the subject files were in archives, steps were initiated to have them delivered to the Solicitor’s office. A letter was forwarded to Mr Reed from the Solicitor in relation to this aspect of the matter.

24 On Monday, 21 August 2000, an email was forwarded to Mr Reed by the Solicitor. In that email she makes reference to having spoken to Robert Kaye, Barrister. The Solicitor made reference to the “28 day” time period and that this period “is unlikely to be fatal to any application to pursue the action…”.

25 Between 21 August and 31 August 2000, the Solicitor believed that she had spoken to Mr Reed and had requested monies on account of costs namely in the sum of $2,000.00.

26 On 31 August 2000, an email was forwarded from Back Schwartz Vaughan, Solicitors, to Mr Reed providing trust account details.

27 On 6 September 2000, Mr Reed forwarded a memo to Susan Nettleton who is the Secretary for the Solicitor. In that email Mr Reed indicated he would send the monies by way of a NAB cheque.

28 On 13 September 2000, Mr Reed’s action was dismissed by the Registrar in Chambers.

29 At a time approximately in October 2000, the Solicitor was endeavouring to get the materials together to brief Mr Kay of Counsel. At that time the office was closed for two weeks during the Olympic Games. The Solicitor believes that she spoke to Mr Reed and in the course of that conversation which was per medium of telephone, that she informed him that the matter had been dismissed.

30 On 18 November 2000 the Solicitor received a further letter from Mr Reed. In that email he stated “I would be pleased to hear from you as to progress on my case”.

31 On 14 March 2001, Mr Reed again wrote to the Solicitor specifically to ascertain what was happening in the matter.

32 On 24 May 2001, Mr Reed wrote a further letter to the Solicitor indicating that he had not received a response to the three previous communications and seeking acknowledgement to the letter attached and the sum of $2,000.00 paid to the Trust Account.

33 The Solicitor ignored the letters from Mr Reed.

34 On 8 July 2002, Mr Reed attended upon the offices of Back Schwartz Vaughan in Sydney. The Solicitor was absent from the office. Mr Reed telephoned the office on a number of occasions between 9 July and 26 July 2002. The Solicitor spoke to Mr Reed sometime after 22 July 2002 in which there was some conversation about Mr Carr and that there had been no cost orders made against Mr Reed.

35 The evidence of the Solicitor which appears from her affidavit filed on 29 March 2006 and from her oral evidence is that the defamation action had been on foot since 1987. The Solicitor had not previously been involved in the matter and it was not until she had a conversation with Mr Back, a partner in the firm, on or about 17 July 2000 that she became aware of the matters existence. A notice had been received from the Supreme Court on 10 July 2000 and the Solicitor was in effect asked by Mr Back to deal with the notice. She said she was not asked to take over the carriage of the matter. She had to retrieve the file from archives and the file consisted of 6 boxes of materials and was in a state of disarray. She ascertained that no work had been undertaken on the matter by the firm for approximately 7 years.

36 The Solicitor sought to deal with the matter as best she could and delegate it to a staff member to make direct inquiries with the Supreme Court in relation to the matters status. She also, in accordance with a specific instruction from Mr Back, sought monies on account of costs from Mr Reed.

37 The Part 32A Notice from the Supreme Court specified that the matter would be struck out “unless a party satisfies the Court that special circumstances exist that render it desirable that such an order should not be made”. The Notice further refers to the necessity for a written application to be lodged with the Court before the expiration of 28 days from the date of the letter.

38 The letters written to the firm on 13 and 17 August 2000 by Mr Reed make it clear that unless he was advised of the contrary, he wanted to proceed with the matters and wanted the Solicitor to notify the Court in response to the Notice.

39 The Solicitor acknowledges that she did not respond appropriately to those letters and she accepts that she did not speak to Mr Reed as she always believed she did.

40 Unsatisfactory professional conduct is defined in Section 496 of the Legal Profession Act 2004 (the Act) as follows:

“For the purposes of this Act:

“Unsatisfactory professional conduct” includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.”

41 Professional misconduct is defined in Section 497 of the Act as follows:

“1. For the purposes of this Act:

“professional misconduct” includes:

(1) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(2) conduct of an Australian legal practitioner, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

2. For the finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.”

42 Mr Walsh who appeared for the Solicitor referred to the Tribunal to a passage of the judgment by Lord Reid in the decision Rondel –v- Worsley [1969] 1 AC 191 at 227; [1967] All Er 993 at 998 when submitting that a legal practitioner has a fundamental and overriding duty of candour to the Court and to the client. In that decision, Lord Reid observed:

“Every Counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.”

43 Mr Walsh further submitted that the standard of proof that must be discharged by the Law Society is on the balance of probabilities but nevertheless, the gravity of the conduct contended is to be taken into account (Brigenshaw -v- Brigenshaw (1938) 60 CLR 336 at 368). The further submission by Mr Walsh was that the Solicitor’s state of mind, knowledge and contention at the time when the breach is alleged must be taken into account and he relied upon a number of decisions and in particular, the decision in Re: Hodgekiss (1962) SR (NSW) 340.

44 In Re: Hodgekiss Hardie J in respect of breaches of ss.41 and 42 of the earlier Legal Practitioners Act said:

“I’m of opinion that the Section deals with personal breaches of the statutory provisions in question on occasions when the Solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. It is thus essential in any enquiry as to whether there have been wilful breaches by a Solicitor of the provisions of ss.41 and 42 to examine the facts and circumstances relevant to his stage of mind, knowledge and intention at the material dates.”

45 The serious matter to be determined by this Tribunal is whether she had an honest belief that she in fact had had a telephone conversation with Mr Reed in which she informed him that the proceedings had been dismissed and therefore, when responding to correspondence from the Law Society she was not attempting to mislead the Society. The Solicitor has made, in the course of the investigation by the Law Society, a number of responses.

46 In the Solicitor’s response dated 15 November 2002, she states “I informed Mr Reed by telephone that his matter had been dismissed.” She goes further on to state that she did not have a file note and noted that Mr Reed recalled a discussion about Mr Kaye and “I believe I raised that with him at the time I indicated the matter had been dismissed.”

47 On 18 February 2003, Mary Young on behalf of the Law Society, wrote to the Solicitor and sought information as to the approximate date of the telephone conversation with Mr Reed.

48 On 18 February 2003, the Solicitor forwarded a further response. In that response the Solicitor indicated that she informed Mr Reed that no action would be taken until money was provided on account of costs. She denied that her actions were deliberate and intentional to ensure the matter was struck out. She referred to the fact that there had been no contact from Mr Reed for six years. She again asserted that she had informed Mr Reed that the matter was dismissed in the Year 2000. She further maintained that she had the conversation with Mr Reed and that she was not in a position to advise him as to the merits of proceeding with the action or whether or not in the circumstances he could mount an application to the Court at that time. It was her understanding that when matters are dismissed there was always the potential to make an application to re-enliven them. She further maintained that she was not aware that the matter had been dismissed until the monies were provided.

49 On 25 March 2003, the Solicitor provided a further response to the Law Society.

50 In that letter the Solicitor refers to her belief that Mr Reed telephoned the office after she had spoken with Mr Back and she advised him that monies were to be provided before any action was taken. Mr Back had instructed her to obtain funds on account. She also referred to not having seen the type of Notice that had been issued by the Court. The Solicitor provided copies of the pleadings and all correspondence including email communications. She also confirmed that the sum of $2,000.00 had been remitted to the complainant.

51 On 3 April 2003, Mary Young wrote again to the Solicitor summarising the issues of complaint. She also again sought advices as to whether or no the Solicitor telephoned Mr Reed advising him of the dismissal of his matter and whether there were any records of same.

52 On 10 April 2003, a further response was forwarded.

53 In that letter she confirmed conducting a search of the telephone records at the firm and being unable to find any recording of a telephone call made to Argentina. She also confirmed that she did not have any recollection of informing Mr Reed in Argentina. It was her belief that Mr Reed had telephoned her after he had provided the funds on account.

54 On 23 December 2003, a further response was forwarded on behalf of the Solicitor.

55 In that response, the Solicitor again confirmed that it was “her best recollection that she did speak to the complainant in the Year 2000 and in that conversation had informed him that the matter had been dismissed....” She further stated, “…The Solicitor has provided her instructions on the basis of her best recollection of events and would never seek to mislead the Law Society in relation to such a matter. She is terribly distressed that such an allegation is now being made against her, when she was simply placed in a situation whereby the problem was referred to her basically to try and sort out”.

56 On 1 October 2004, a letter was forwarded by the Law Society dismissing two of the complaints made by Mr Reed.

57 On 1 November 2004, a further response was made on behalf of the Solicitor.

58 In that response the following submission was made:

“As I understand the Solicitor’s instructions, her state of mind was such that she believed that notwithstanding the fact that the matter was subsequently struck out that it could be, to use her term “resurrected”. In this regard one can appreciate the point made in your letter but I wish to assure you and the Committee that my client has not in any way sought to mislead the Society.”

59 The Solicitor was unable to add anything further to the previous responses made on her behalf.

60 On 21 January 2005 a further response was forwarded to the Law Society.

61 In that response the Solicitor asserted that she did maintain she spoke to Mr Reed both in 2000 and July 2002.

62 On 21 January 2005, a further response was forwarded on behalf of the Solicitor.

63 In that further response, issues raised by Mary Young on 12 January 2005 were sought to be addressed. Those issues were the assertion that the Solicitor had not made any comment on any conversation with Mr Reed in July 2002 from her or on her behalf. Directly it was sought to ascertain whether she conceded a conversation took place in July 2002 and what was her version of what was said.

64 In fact there were two responses of 21 January 2005. The first addressed the issues raised on 12 January 2005 and it was confirmed that in the conversation of July 2005, the Solicitor confirmed that the matter had been dismissed and that she had $2,000.00 in the trust account to return to Mr Reed.

65 On 31 March 2005, a further response was forwarded on behalf of the Solicitor.

66 In that response the Solicitor again sought to respond to the further issues raised by the Law Society in the letter addressed to the Solicitor’s legal representative of 14 February 2005.

67 On 9 May 2005, a letter was forwarded by the Law Society to the Solicitor’s legal representative particularising the resolutions passed by the Professional Conduct Committee of the Law Society on 5 May 2005.

68 On 19 May 2005, a further response was forwarded on behalf of the legal practitioner addressing a number of issues.

69 In that submission, the specific issue of misleading or attempting to mislead the Law Society were sought to be addressed. It was stated:

“The problem that she has, as a legal practitioner, and a human being, is that she does have a recollection of that phone call and telling Mr Reed that the matter has been dismissed. Memory, as we all know, is not as if a photograph is taken of some event. It is a reconstructive process.”

70 Thus, the Solicitor asserted, as she continued to do, that she at all material times has had an honestly held belief that a phone call took place between her and Mr Reed in which she informed him in 2000 that the matter had been dismissed. She now accepts that the phone call did not take place.

71 The Tribunal has had the opportunity to observe the solicitor when she gave oral evidence during the hearing and it is the Tribunal’s finding that the Solicitor did have the honestly held belief that she had had a telephone conversation with Mr Reed in the year 2000 when she informed him that the proceedings had been dismissed. In those circumstances, the Tribunal does not find that the Solicitor has attempted to mislead the Law Society or has misled the Law Society. In the circumstances, the Tribunal will order that ground two be dismissed.

72 The Solicitor became a salaried partner of the firm, Back Schwartz Vaughan on 1 February 2001, so at the time the proceedings were dismissed, she was an employed solicitor.

73 The Tribunal notes with concern that up to the time that the solicitor became a salaried partner, and in relation to this matter, she was certainly not adequately supervised.

74 Having regard to Solicitor’s Reply in which she admits ground one, and having regard to the fact that she was particularly warned by Mr Reed in his letter of 17 August 2000 to ensure that the matter was struck out yet she took no action to contact the Supreme Court and the further failure by her to respond to the letters written to her by Mr Reed on 18 November 2000, 14 March 2001 and 24 May 2001, the Tribunal makes the finding that ground one is established.

75 The Tribunal has had the benefit of reading a number of affidavits from very experienced legal practitioners, including members of the Bar and one Senior Counsel, all deposing to the Solicitors integrity, honesty and competence as a legal practitioner.

76 Taking into account the reference affidavits and also the history of the matter, the Tribunal is of the view that the appropriate order is that the solicitor is guilty of unsatisfactory professional conduct.

ORDER

1. The Solicitor be publicly reprimanded.

2. The Solicitor pay the costs of the Council of the Law Society of New South Wales.