Law Society of New South Wales v Fernie

[2006] NSWADT 123

CITATION:	Law Society of New South Wales v Fernie [2006] NSWADT 123
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Graeme Barry Fernie
FILE NUMBER:	062004
HEARING DATES:	31/03/2006
SUBMISSIONS CLOSED:	03/31/2006
DATE OF DECISION:	04/24/2006
BEFORE:	Vass CB -Judicial Member; Molloy GB - Judicial Member; Dyster B - Non Judicial Member
CATCHWORDS:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Milios LSTR No. 3 of 1998
REPRESENTATION:	APPLICANT P Boyd, Solicitor RESPONDENT In person
ORDERS:	1. The Legal Practitioner is guilty of professional misconduct; 2. The Legal Practitioner be publicly reprimanded; 3.The Legal Practitioner be fined the sum of $2,000.00 payable within 28 days of the date of these orders; 4.That the Legal Practitioner comply with the terms of Section 152 of the Legal Profession Act 1987 within 21 days of the date of these orders, and that failing such compliance the Legal Practitioner’s Practising Certificate be cancelled and that the Legal Practitioner’s Practising Certificate not be renewed until such time as he has complied with the requirements of Section 152 of the Act.; 5. The Legal Practitioner pay the costs of the Society

1 The Council of the Law Society of New South Wales (the Society), by Disciplinary Application filed on 1 February 2006, informs the Tribunal that Graeme Barry Fernie (the Legal Practitioner) while practising as a Solicitor, was guilty of professional misconduct on the grounds that the Legal Practitioner having being duly served with a notice pursuant to Section 152 of the Legal Profession Act 1987 (the Act) has, without reasonable excuse, failed to comply the requirements of that notice.

2 The particulars of the Legal Practitioner’s professional misconduct commenced with the Professional Conduct Committee of the Law Society resolving on 4 November 2004, that a notice under Section 152 of the Act be issued to the Legal Practitioner. The Legal Practitioner was served with that notice on 17 November 2004 and he had until 8 December 2004 to comply with the notice or to provide a Statutory Declaration setting out his reasons for any inability to do so. The notice was not complied with and the Law Society wrote to the solicitor on at least 7 more occasions to give him the opportunity to comply with the notice. The Solicitor in fact did on 16 June 2005 pass on to the Law Society the file relating to the matter, the subject of the complaint that had been made to the Society, but he made no other attempt to comply with the terms of the notice. The Professional Conduct Committee resolved at its meeting on 15 December 2005 to institute proceedings in this Tribunal pursuant to Section 155(2) of the Act.

3 The application was listed for Hearing on 31 March 2006 and as at that date, the Legal Practitioner had still not complied with the terms of the notice. At the Hearing, Mr P Boyd, Solicitor, appeared for the Society and the Legal Practitioner appeared in person.

4 The Legal Practitioner filed in these proceedings a Reply dated 1 March 2006 and in that Reply, he admitted the complaint and stated:

“To the extent that any excuse for the non-compliance with the notice pursuant to Section 152(1) of the Legal Profession Act 1987, may be relied upon, I rely upon my affidavit to be filed in these proceedings.”

5 No affidavit was filed by the Legal Practitioner in these proceedings.

6 At the Hearing, the Legal Practitioner made no further submission to the Tribunal other than to state that he relied upon the matters as stated in a letter that he wrote to the Law Society on 22 September 2005. In that letter he stated:

“The writer can find no particular excuse other than the rather lame one of having been somewhat stunned by the complaint, and having taken the time-honoured, but foolish, “ignore it, and it will go away” approach.”

7 The Society tendered an affidavit of Raymond John Collins sworn on 31 January 2006 and annexed to that affidavit were copies of all the correspondence between the Society and the Legal Practitioner. On the evidence, the Tribunal finds that the Legal Practitioner was provided with every opportunity to reply to letters from the Society and more importantly to the notice served on the Legal Practitioner pursuant to Section 152 of the Act. The Legal Practitioner failed to comply with the notice and has provided no explanation to this Tribunal for his failure. Such failure is statutory professional misconduct.

8 The Tribunal has previous noted on numerous occasions that it regards very seriously any failure to comply with the requirements of Section 152 of the Act. In Milios LSTR No. 3 of 1998 the former Legal Services Tribunal observed:

“The Tribunal wants it clearly understood by the Legal Profession that it requires Legal Practitioners to comply with the provisions of Section 152 and that it will view very seriously any failure to comply with the requirements to provide written information verified by statutory declaration unless there is a reasonable excuse.”

9 Although it is not for us to speculate it does seem to us that this matter could have been resolved by the Legal Practitioner responding to the correspondence from the Society as required and his failure to respond to that correspondence has left the Society with no choice but to institute these proceedings. Failure to comply with the Section 152 notice, or provide an excuse for such failure to comply, virtually mandate the practitioner being found guilty of professional misconduct and suffering the humiliation and embarrassment that flows from any such finding. It is regrettable that the Legal Practitioner has allowed this matter to reach this level.

10 The Tribunal finds that the Legal Practitioner breached Section 152 of the Act and that therefore the Disciplinary Application is established and the Tribunal finds that the Legal Practitioner is guilty of professional misconduct.

ORDERS

11 The Tribunal therefore orders:

1. The Legal Practitioner is guilty of professional misconduct

2. The Legal Practitioner be publicly reprimanded

3.The Legal Practitioner be fined the sum of $2,000.00 payable within 28 days of the date of these orders.

4.That the Legal Practitioner comply with the terms of Section 152 of the Legal Profession Act 1987 within 21 days of the date of these orders, and that failing such compliance the Legal Practitioner’s Practising Certificate be cancelled and that the Legal Practitioner’s Practising Certificate not be renewed until such time as he has complied with the requirements of Section 152 of the Act.

5. The Legal Practitioner pay the costs of the Society