Law Society of New South Wales v Knudsen (No 2)

[2006] NSWADT 245

CITATION:	Law Society of New South Wales v Knudsen (No 2) [2006] NSWADT 245
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Peter Stanley Knudsen
FILE NUMBER:	052022
HEARING DATES:	10/05/2006
SUBMISSIONS CLOSED:	06/15/2006
DATE OF DECISION:	08/15/2006
BEFORE:	Chesterman M - ADCJ (Deputy President); Durbach A - Judicial Member; O'Neill A - Non Judicial Member
CATCHWORDS:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Penalty
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Graham Leonard Berry v Law Society of New South Wales and Anor, Unreported, Supreme Court, NSW, Kirby J, 28 April 2005 (Common Law Division, No. 10776 of 2005) Briginshaw v Briginshaw (1938) 60 CLR 336 Council of the Law Society of New South Wales v Knudsen [2004] NSWADT 272 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236 Peter Stanley Knudsen [1998] NSWLT 3 Law Society of New South Wales v Berry [2005] NSWADT 46 Law Society of New South Wales v Knudsen [2005] NSWADT 250 Law Society of New South Wales v Knudsen [2006] NSWADT 49 Legal Services Commissioner v Knudsen [2000] NSWADT 62 NSW Bar Association v Howen [2003] NSWADT 117 NSW Bar Association v Howen (No 2) [2003] NSWADT 235 NSW Bar Association v Maddocks, Unreported, Court of Appeal, NSW, 23 August 1998 (BC8801576) Prothonotary v Del Castillo [2001] NSWCA 75 Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 231 Prothonotary of the Supreme Court of New South Wales v Richard, Unreported, Court of Appeal, NSW, 31 July.1987
REPRESENTATION:	APPLICANT L Pierotti, solicitor RESPONDENT A Diethelm, barrister
ORDERS:	1. The Respondent is publicly reprimanded; 2. The Respondent is to pay a fine of $8,000, to be paid within six months of the date of this decision; 3. If after six months this fine is not paid, the Respondent’s practising certificate is to be suspended until it is paid; 4. If at any time the Respondent is required by the Applicant or by the Legal Services Commissioner to provide information or documents relating to his practice as a solicitor, he is to seek advice regarding compliance with this requirement as soon as he practicably can from Mr Adrian Diethelm, barrister, or (in the event that Mr Diethelm becomes unable or unwilling to provide such advice when requested and notifies him and the Applicant accordingly) from a legal practitioner of appropriate seniority nominated by the Applicant following consultation with the Respondent; 5. The Respondent is to pay the costs of the Applicant, as agreed or assessed

Introduction

1 By an Information filed on 23 June 2005, the Applicant, the Council of the Law Society of New South Wales (‘the Law Society’), alleged that the Respondent solicitor (‘the Solicitor’) was a legal practitioner within the meaning of s 128 of the Legal Profession Act 1987 (‘the Act’) and had been guilty of professional misconduct on two grounds while practising as a solicitor.

2 These two grounds were as follows:-

1. The legal practitioner, without reasonable excuse, failed to comply with a Council requirement under Section 152 of the Legal Profession Act, 1987.

2. The legal practitioner has failed to assist the Law Society in the investigation of a complaint.

3 Because the Information was filed before the commencement of the Legal Profession Act 2004, these proceedings are wholly governed by the Legal Profession Act 1987 (hereafter ‘the LP Act’): see Legal Profession Act 2004, Schedule 9, clause 15.

4 In a decision given on 16 February 2006 (Law Society of New South Wales v Knudsen [2006] NSWADT 49), we made a finding of professional misconduct under Ground 1 of the Information, but dismissed Ground 2. The relevant behaviour of the Solicitor and the grounds on which we held that this behaviour amounted to professional misconduct are set out in our decision at [3 – 55].

5 We also directed that there be a further hearing with regard to what order or orders we should make by way of penalty, pursuant to s 171C of the LP Act. This hearing took place on 10 May 2006. In written submissions filed subsequently, the issue of costs was also raised.

Arguments advanced by the Law Society

6 In the Information, the Law Society requested that the Tribunal should make an order under s 171C(1)(a) of the LP Act removing the name of the Solicitor from the roll of legal practitioners. At the hearing on 10 May 2006, Mr Pierotti, who appeared for the Law Society, submitted that an order of this nature was appropriate in the particular circumstances of this case, even though professional misconduct constituted by failure to comply with a requirement of the Law Society Council under s 152 of the LP Act would not ordinarily attract a penalty of such severity.

7 Section 152, so far as relevant, provides as follows:-

(1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following:
(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,

(b) to produce, at a time and place specified in the notice, any document (or a copy of a document) specified in the notice, …

(4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.

8 Relevant aspects of the Solicitor’s misconduct. As we stated in paragraph [55] of our earlier decision, the Solicitor, after having been served with a notice under s 152(1) on 12 April 2005, failed to comply with it, without reasonable excuse, ‘with respect to a significant quantity of information and with respect to the production of documents’. We added: ‘These failures to comply persisted over more than five months in relation to the information and more than six months in relation to the documents.’

9 The Law Society in fact advised the Solicitor in a letter dated 11 May 2005 that it had made a complaint against him on account of his failure to comply with the notice. In a letter dated 2 June, it advised him that, subject to any submissions that he might make, it would refer this complaint to the Tribunal under s 155 of the LP Act. Shortly after the Information, accompanied by an affidavit by the solicitor for the Law Society, was filed on 23 June 2005, he was served with a copy of these documents. Yet he did not supply the required information to the Law Society until 30 September 2005 and he did not supply the required documents until 31 October 2005.

10 We found also, at [49], that these omissions by the Solicitor were attributable to a ‘reckless failure on his part to consider what was in fact required of him’ by the notice. Because in an earlier communication with the Law Society he had supplied part of the information required by the notice, he had, we said, ‘persuaded himself that there was nothing more left for him to do, even though the briefest examination of [the notice] would have shown him that this was not the case’.

11 In his submissions on penalty, Mr Pierotti placed significant reliance on these features of the evidence regarding the Solicitor’s misconduct. He relied also on three further aspects of this evidence.

12 The first was that, while the Solicitor acknowledged in cross-examination that he laboured under some sort of psychological incapacity to respond to inquiries from administrative bodies such as the Law Society, the steps that he took in order to remedy this incapacity were very limited in scope. Although he knew in May 2005 that the Law Society had made a complaint against him for failing to comply with the s 152 notice, it was not until August of that year that he consulted his counsel in these proceedings, Mr Diethelm, regarding what should be done on the matter, and it was not until September that he tried to obtain help from Mr Norman Rees, a clinical psychologist whom he had visited or consulted by telephone on a number of occasions in 2003 and 2004. Mr Rees was overseas at that time, and it was not until November that the Solicitor attended a series of consultations with him. Mr Rees’s file (which was obtained on a summons to produce and admitted into evidence at the hearing on 10 May 2006) showed that there had been only one subsequent consultation, on 28 January 2006.

13 Secondly, there was, in Mr Pierotti’s submission, only a ‘grudging’ acceptance by the Solicitor of both the scale and the significance of his contravention of the duty to comply with the s 152 notice. During cross-examination, the Solicitor said that his non-compliance was attributable to what he called ‘great difficulty’ that he experienced ‘in dealing with administrative matters’ or with matters in which he was ‘personally involved’. He added that he had a continuing tendency to ‘compartmentalise’ such issues, that is, to segregate them from issues arising in the course of his professional activities on behalf of his clients. He believed that his ‘difficulty’ with regard to ‘administrative’ or ‘personal’ matters did not prevent him rendering wholly satisfactory services to his clients.

14 Later in his cross-examination, he described his failures with regard to ‘administrative’ matters as ‘lamentable’. He also said on one occasion that he had acted ‘quite wrongly’ in terms of his duty to the Law Society and that he had neglected an ‘important aspect’ of his practice. But as Mr Pierotti pointed out, neither in his affidavit evidence nor at any other stage of his oral evidence did he appear to acknowledge the importance of complying fully and promptly with s 152 notices or other similar procedures.

15 The third aspect of the evidence to which Mr Pierotti drew our attention was that while Mr Rees, and also two barristers currently in practice (Mr Jeffrey Phillips SC and Mr Peter Strain), testified on the Solicitor’s behalf during the hearing relating to the substantive issues raised by the Information, the Solicitor’s counsel, Mr Diethelm, indicated that he did not wish to rely on their evidence in relation to penalty. Mr Diethelm had said earlier that they would be available for further cross-examination at the hearing on penalty, if so required. Mr Pierotti argued that this change of approach showed that the Solicitor was not prepared to co-operate in these proceedings and was instead engaging in a ‘battle of tactics’. He added that the Tribunal, in the exercise of its powers under the LP Act to conduct an inquiry into the matters raised by the Information, could in any event decide that the evidence already furnished by any one or more of these witnesses could be taken into consideration on the matter of penalty, despite Mr Diethelm’s statement that the Solicitor did not wish this to occur.

16 Previous misconduct (including breaches of s 152) by the Solicitor. A major component of Mr Pierotti’s claim that the Solicitor should be struck off was the existence of three prior findings by the Tribunal (in 2000, 2004 and 2005 respectively) that the Solicitor had committed professional misconduct through failing to comply with s 152. At one of the three hearings involved, and in proceedings in the Legal Services Tribunal in 1998, he had also been found guilty of misconduct on other grounds. We received evidence of these matters for the first time at our hearing on penalty, without objection by Mr Diethelm.

17 These four sets of disciplinary proceedings, along with the present proceedings, have occurred in the course of some 42 years in practice by the Solicitor.

18 In the earliest of these proceedings (Peter Stanley Knudsen [1998] NSWLT 3), the Legal Services Tribunal stated that it deplored, ‘in absolutely unequivocal terms’, the Solicitor’s misconduct, which took the form of administering an oath to a deponent on two separate occasions when the deponent was not in his presence. In his favour, it took into account his regret and contrition, his awareness of the seriousness of his misconduct, his free and frank acknowledgment of it, his otherwise blameless record during a professional career of some 34 years and the existence of a number of testimonials showing that he was well regarded both by his clients and within the profession. It ordered that he be publicly reprimanded and that he should pay a fine of $3,000, together with the Law Society’s costs.

19 In Legal Services Commissioner v Knudsen [2000] NSWADT 62, the Solicitor failed without reasonable excuse to supply to the Legal Services Commissioner the written information required in a notice under s 152 until nearly three months after the date specified in the notice. The Tribunal held that this constituted professional misconduct and, taking account (at [26]) of what it described as his ‘almost unblemished record’, ordered that he be publicly reprimanded and that he pay a fine of $1,000 and the Commissioner’s costs.

20 The proceedings in Council of the Law Society of New South Wales v Knudsen [2004] NSWADT 272 resulted in a finding of non-compliance by the Solicitor with s 152 together with further findings to the effect that during within the period from 1997 to 2001 he had breached s 61 of the LP Act, misappropriated trust moneys, attempted by the payment of money to induce a witness not to give evidence in disciplinary proceedings, made a false or misleading statutory declaration and breached an undertaking to a practitioner. The Solicitor admitted all these matters. The Tribunal concluded that the breach of undertaking constituted unsatisfactory professional conduct and that each of the other matters constituted professional misconduct.

21 With respect to the breach of s 152, the Tribunal imposed a fine of $1,000. With regard to the other matters, the Tribunal held, at [33], that there were ‘mitigating circumstances’, in so far as the case against the Solicitor ‘in a large part arose because of the behaviour of’ two other legal practitioners who had been involved in the relevant transactions. It added that the Solicitor ‘failed to stop the situation from deteriorating’ and that in this regard he ‘showed poor judgment’. With respect to these matters, the sanctions that it imposed took the form of public reprimands, fines totalling $20,000 and an order for costs.

22 Finally, in Law Society of New South Wales v Knudsen [2005] NSWADT 250, the Solicitor failed, without reasonable excuse, to comply with a notice under s 152 from the Law Society requiring information relating to the same complaint by former clients (David and Suzanne White) as has indirectly given rise to the present proceedings. The notice, which was served on 6 February 2004, required compliance within fourteen days. The required information was not furnished until 11 February 2005 (see the Tribunal’s judgment at [11] and our earlier judgment in these proceedings, Law Society of New South Wales v Knudsen [2006] NSWADT 49, at [18 – 20]). The Solicitor admitted that he had been guilty of non-compliance as alleged.

23 The Tribunal took account, at [19 – 20], of the Solicitor’s two prior breaches of s 152, which we have just outlined. But it also placed significant weight, at [9], on the fact that between July 2003 and September 2004 he had experienced a number of highly traumatic events. These included a stabbing attack upon him by his wife in July 2003, radical prostate surgery in March 2004 and major abdominal surgery in September 2004. The Tribunal accordingly concluded that the public would be sufficiently protected by a public reprimand, a fine ‘at the lower end of the range’ and a costs order. It fixed the amount of the fine at $1,250.

24 Authorities bearing upon s 152 of the LP Act. As we have said, Mr Pierotti acknowledged that non-compliance with s 152, standing alone, would not normally provide a basis for an order removing the name of a legal practitioner from the Roll. But he pointed out that in several cases the Tribunal has placed considerable emphasis on the importance of compliance.

25 In this connection, Mr Pierotti relied on the explanation of s 152 given by the Tribunal in NSW Bar Association v Howen [2003] NSWADT 117 at [26]. This was to the effect that the chief purpose of the section was to protect the public by ensuring that disciplinary measures were as effective as possible, thereby maintaining ‘the highest achievable standards of professional conduct’. He referred also to the Tribunal’s statement, at [40], that a legal practitioner ought to know that the purpose of Part 10 of the LP Act (in which s 152 is to be found) is ‘to benefit the legal profession as well as the public’. The Tribunal then added:-

Although s 152 contains a sanction to encourage compliance, its primary purpose is not to create the circumstances in which legal practitioners may be found guilty of professional misconduct, but to facilitate investigations.

26 In a passage in NSW Bar Association v Howen (No 2) [2003] NSWADT 235 on which Mr Pierotti also relied, the Tribunal said, at [23]:-

Notwithstanding mitigating factors, failure to comply with a notice under section 152 of the Act is professional misconduct. A section 152 Notice is an important device for assisting the Councils and the Commissioner to investigate and resolve complaints against practitioners. Failure to comply with a notice may frustrate an investigation or make the investigation more difficult, time consuming and costly. We cannot deal with failure to comply with a section 152 notice as the failure were a trivial matter.

27 In support of the proposition that a breach of s 152, coupled with evidence of prior misconduct of a similar nature, could provide grounds for an order striking off a legal practitioner, Mr Pierotti cited the Tribunal’s decision in Law Society of New South Wales v Berry [2005] NSWADT 46. Here the respondent solicitor, who was 69 years of age and had been in practice for 45 years, had committed professional misconduct through failure to comply with s 152 on three separate occasions, including the occasion on which the Tribunal proceedings were based. Within the previous thirteen years, he had been before the Tribunal on two further occasions. The Tribunal’s judgment, which was delivered on 3 April 2005, does not indicate what was alleged or proved against him in these two hearings.

28 The Tribunal found, at [8], that the respondent was ‘a lawyer of excellent repute and principles’. It received medical evidence to the effect that his apparent disregard for demands for information came not from stupid obstinacy, but from a personality trait, exacerbated by clinical depression. The latter could be cured by medication and psychotherapy, and the former could be modified by the same psychotherapy. The proposed course of treatment would take three months or longer.

29 The orders sought by the Law Society against the respondent were a reprimand, a fine and an award of costs. But the Tribunal held that the misconduct constituted by the respondent’s most recent failure to comply with s 152, considered in conjunction with his previous record of misconduct, demonstrated that he was unfit to practise and that he should therefore be struck off. At [10 – 15], it explained its reasoning as follows:-

10 All of the evidence considered, we are not satisfied to the requisite standard that the Solicitor is, at this time, a person who is fit to practice. The evidence before us certainly did offer some prospect that the Solicitor’s state could improve, but that appears to be unlikely to be so in the very near future.

11 As was stated that at the outset of these Reasons, the Solicitor having admitted a failure to comply with a Section 152 Notice, thereby conceding professional misconduct, the only matter left for our consideration was what order we might make within the regime set by Sections 171 C – 171 E and we are not persuaded that the most extreme order is not appropriate.

12 We are also mindful of the observations of the Court of Appeal in Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 231 in its reference to Prothonotary v Richard [NSWCA 31.7.1987] holding that “an order striking off the roll should only be made when the probability is that the Solicitor is permanently unfit to practice”.

13 Of course we are mindful of the devastating effect which our Order will have on the Solicitor, but our public duty is clear. Our attention was drawn to the matter of New South Wales Bar Association v Howen (No 2) [2003 NSWADT 235], a matter involving not dissimilar facts, being failure to comply with several Section 152 Notices brought about by an episodic psychological condition. The Tribunal in Howen observed (paragraph 24) “the offences are closely related” and, because the Tribunal was satisfied of Howen’s “determination not to indulge in the same or similar conduct again” (paragraph 26) did not strike him off.

14 Considering the Solicitor’s previous record, this being the fifth instance when he has been found to have or has admitted to having “stuck his head in the sand” either to the detriment of his client, or to the detriment of his practice, we simply could not be comfortably satisfied that he would not again so react if he were to be faced with a similar situation tomorrow.

15 It is perhaps appropriate to indicate that our orders might well have been different had the Solicitor established that his medication and psychotherapy were having the predicted curative effect, perhaps linked with an acceptable supervision program. It is also appropriate for us to state that we would not wish the Solicitor to be denied access to a legal office where his talents could be employed in an appropriately supervised role.

30 Mr Pierotti indicated in his written submissions that the Tribunal’s orders in this case were in fact set aside on appeal. But this was done, as he put it, ‘on quite specific grounds and without there being a hearing on the merits of the allegation against the [respondent]’. He argued that, even though its order was overturned, the Tribunal acted correctly in giving consideration to how the Solicitor would react in a similar situation in the future and to what he was doing to address any failings (especially medical failings) from which he might be suffering.

31 It is appropriate to mention here that we have made our own investigation of the appeal proceedings in the Berry case. In an unreported judgment delivered ex tempore in the Supreme Court on 28 April 2005 (Graham Leonard Berry v Law Society of New South Wales and Anor, Common Law Division, No. 10776 of 2005), Kirby J held that, as counsel for the Law Society had conceded, the Tribunal ‘did not pay regard, or paid insufficient regard, to a principle… that… where there is evidence that a particular default of a practitioner is the consequence of some medical condition, then the drastic step of striking that practitioner from the roll should be taken unless it is apparent that the condition is permanent’. Since, his Honour said, it was common ground that the respondent’s condition was being addressed by medication and was curable, the Tribunal’s order should be set aside. On receiving an undertaking that the respondent would cease to practise, would surrender his practising certificate and would not seek to obtain a practising certificate in this State or elsewhere, his Honour dismissed the complaint under s 155A of the LP Act.

32 The judgment of Kirby J also referred to a suggestion during argument that the Tribunal ‘did not properly regard the issue of onus of proof’. He said, however, that he did not need to deal with that issue.

33 Mr Pierotti argued that we should not take any account of certain statements regarding the Solicitor’s future intentions as to practice. Mr Diethelm made the statements at the hearing on penalty and in his written submissions. Mr Pierotti argued that they did not qualify as evidence, pointing out that while the Solicitor himself could easily have sought to leave to include them in testimony given on 10 May 2006, he had elected not to do so. In Mr Pierotti’s submission, we could take account in this connection of the fact that the Solicitor was now 66 years of age.

34 In responding to a submission by Mr Diethelm (outlined below) that the Solicitor’s failure to respond to the notice under s 152 did not significantly hinder the Law Society’s conduct of its investigation, Mr Pierotti referred to a paragraph of our earlier judgment in these proceedings (Law Society of New South Wales v Knudsen [2006] NSWADT 49 at [35]). In it, we made a finding that in testifying in earlier proceedings brought by the Society – i.e., before the issue of the notice – the Solicitor had ‘misled’ the Society into thinking that a statutory declaration responding to questions that the Society had put to him had been drafted and would soon be made available to the Society.

35 Finally, Mr Pierotti sought to rebut an argument by Mr Diethelm that, since we in our earlier judgment had upheld only one of the two Grounds set out in the Information, we should order that the Solicitor pay one-half of the Law Society’s costs of these proceedings and that the Law Society pay one-half of the Solicitor’s costs. Mr Pierotti submitted that, apart from s 171E of the LP Act, costs orders were a matter for our discretion and that we should have regard to the Solicitor’s conduct of the proceedings, including ‘the late filing of material’.

Arguments advanced by the Solicitor

36 As we stated above (at [14]), Mr Diethelm indicated to us at the hearing of 10 May 2006 that the Solicitor did not wish to rely at the ‘penalty stage’ on the evidence given earlier on his behalf by Mr Rees, Mr Jeffrey Phillips SC or Mr Peter Strain. In his written submissions, Mr Diethelm sought to refute Mr Pierotti’s claim that this change of approach showed that the Solicitor was not prepared to co-operate in these proceedings and was engaging in a ‘battle of tactics’. He argued that the Solicitor was quite entitled to make a decision along these lines and that the Tribunal, in considering the matter of penalty, should not draw any adverse inferences from this aspect of the Solicitor’s case.

37 Mr Diethelm’s primary submission was that an order striking the Solicitor from the Roll would be not only ‘prima facie disproportionate’ but so ‘grossly in excess of any proper exercise of the Tribunal’s discretion’ as to constitute a ‘miscarriage of discretion’. He argued that while the legislature clearly regarded the obligation to comply with s 152 of the LP Act as a ‘serious one’, it did not ‘connote the kind of moral obloquy’ involved in (for example) ‘misappropriation of trust moneys, breaching of court orders or prejudicing clients’ entitlements’.

38 Relying on a passage in our earlier judgment (Law Society of New South Wales v Knudsen [2006] NSWADT 49 at [36]), Mr Diethelm argued that this was not a case in which a failure to comply with a notice under s 152 significantly frustrated the progress of the investigation which gave rise to the issue of the notice. The present case therefore did not fall, he claimed, within the scope of the observations of the Tribunal in NSW Bar Association v Howen (No 2) [2003] NSWADT 235 that we have quoted above at [25].

39 What we said in our earlier judgment at [36] was, in brief, that a statutory declaration that the Solicitor sent to the Law Society on 11 February 2005 contained material that, in part, set out ‘his side of the story’ with regard to the matters raised in the notice under s 152 that the Society issued some two months later. We added:-

It is not as if the Law Society was left totally in the dark as to what the Solicitor claimed to be the true position on these matters. This factor significantly reduced the degree of hindrance to the investigation caused by the Solicitor’s failure to comply with the terms of the requirement to provide a response.

40 Mr Diethelm disputed Mr Pierotti’s characterisation of the Solicitor’s acknowledgment of wrongdoing as ‘grudging’. He argued that the Solicitor had displayed ‘a willingness to answer honestly’ all the questions put to him in cross-examination.

41 In view of the Solicitor’s age and length of service within the profession, the appropriate order by way of penalty was, in Mr Diethelm’s submission, a fine imposed ‘in line with orders made in similar cases of failure to comply with s 152’.

42 As mentioned above, Mr Diethelm’s argument on costs was that each party should pay one-half of the other party’s costs, since each party had succeeded on one of the two grounds in the Information and failed on the other ground.

Our conclusions

43 Basic principles regarding ‘strike-off’ orders. If we are to accede to the Law Society’s request that the Solicitor be struck off the Roll, it must be clear to us that the criteria established in a number of leading authorities have been satisfied. They are usefully summarised in the judgment of Young CJ (with whom Meagher and Tobias JJA agreed) in Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 231 at [17].

44 In that case, his Honour indicated at [13] that the Prothonotary was seeking declarations that the opponent, a solicitor who had been convicted of a crime of drug importation, was not a person of good fame and character and was not a fit and proper person to remain on the Roll. At [17], he set out ten propositions, of which we will quote the first two and the last:-

(1) The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.

(2) An order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practise: Prothonotary v Richard (NSWCA 31.7.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.98) ….

(10) The question is present fitness, not fitness as at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75 at para 71.

45 The likelihood of future failures to supply required information. The Law Society has contended that the Solicitor’s unjustifiable failure during 2005 to provide the Law Society with information and documents required for the purposes of an investigation, when considered in conjunction with (a) evidence of similar failures on three previous occasions and (b) the absence of any evidence suggesting that any of these failures were attributable to a curable medical or psychological disorder, shows to a high level of probability that if confronted with a similar requirement in the future he will again fail to discharge his important professional duty to provide the necessary information and/or documents. The likely outcome, once more, will be that the relevant investigation, whether it is conducted by the Law Society or by some other authority, will be significantly impeded on account of his failure to co-operate.

46 The Solicitor’s election not to rely, for the purposes of the hearing on penalty, on any of the written or expert oral evidence on the Solicitor’s psychological condition provided by Mr Rees, has put us in the position where we must either ignore this evidence (despite having referred to it in our earlier judgment in this case) or, if we are so empowered, override the Solicitor’s election and take account of Mr Rees’ evidence.

47 It was suggested to us that the latter course of action might be open to us, by virtue of the Tribunal’s broad power, under s 73(1) and (2) of the Administrative Decisions Tribunal Act 1997, to ‘determine its own procedure’ and to ‘inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’. But s 168(1) of the LP Act requires that in a hearing into a question of professional misconduct, the Tribunal must ‘observe the rules of law governing the admission of evidence’ despite any contrary provisions of s 73. In Council of the New South Wales Bar Association v LI [2005] NSWCA 415 at [22], Spigelman CJ held that ‘the full range’ of the procedural provisions in s 73 ‘should be applied to the Tribunal’s powers under the Legal Profession Act, subject to express words or necessary implication to the contrary’. But he went on to say, at [23], that ‘plainly, s 168(1) are such express words with respect to s 73(2) and (3)’.

48 The latter statement by the Chief Justice casts doubt, at the very least, on the proposition that we could rely on s 73 as a basis for overriding the Solicitor’s election regarding this evidence. We have decided in any event that even if we were so empowered we should not do this, for a reason put to us by Mr Pierotti at one stage of his submissions. This is that the Solicitor’s decision not to call Mr Rees as a witness at the hearing on 10 May 2006 (which dealt with the issue of penalty) deprived Mr Pierotti of the opportunity, which he had previously sought, to engage in further cross-examination of Mr Rees.

49 By virtue of the same reasoning, we take no account, for the purposes of determining penalty, of the written or oral evidence provided by Mr Phillips or Mr Strain.

50 On the other hand, we have admitted, and we take due account of, both the evidence given by Mr Rees regarding the extent to which the Solicitor sought his expert help up to and during November 2005 (this evidence was largely corroborated by the Solicitor himself) and the evidence derived from Mr Rees’s file as to later attempts by the Solicitor to obtain his help. The evidence on both these matters is summarised above at [12].

51 The outcome of these rulings on evidence is that, for the purposes of our determination on penalty, there is no expert evidence before us to suggest that the Solicitor’s failure to comply with the requirements of the notice under s 152 that was served on him on 12 April 2005 was attributable to any medical or psychological condition.

52 In the three previous Tribunal judgments dealing with contraventions of s 152 by the Solicitor (see [19 – 23] above), there was likewise no expert evidence suggesting an underlying medical or psychological reason. However, in the most recent of them, in 2004, the Tribunal did place significant weight on the occurrence of a series of traumatic events affecting the Solicitor during 2003 and 2004.

53 Leaving aside the case decided in 2004, therefore, the only explanation put to us for the Solicitor’s repeated failures to comply with the requirements of notices issued under s 152 is his own explanation. This is to the effect that he has a continuing disposition to segregate compliance with what he calls ‘administrative’ requirements from the discharge of his responsibilities to his clients, with the result that he provides good service to his clients but fails ‘lamentably’ (to use his own term) where ‘administrative’ matters are concerned.

54 It was not at any stage suggested to us that there were other occasions during the Solicitor’s lengthy period of legal practice on which, having been required by the Law Society or any other comparable authority to provide information and/or documents, he responded promptly. The absence of any such evidence supports (albeit to a limited degree only) the Solicitor’s own indication that his problems in this area are of a continuing nature.

55 The evidence regarding the Solicitor’s attempts to obtain professional help in order to deal with these problems shows clearly that it is a matter to which he accords low priority. After having failed during May 2005 to comply with the notice under s 152, he was very slow to ask both Mr Diethelm and Mr Rees for the different types of assistance that they could provide. After having seen Mr Rees on a number of occasions during November 2005, he appears to have arranged only one more consultation, during January 2006.

56 Because the evidence from Mr Phillips and Mr Strain is not before us at this stage of the proceedings, we have no testimony from fellow-practitioners regarding the Solicitor’s general competence, reliability and integrity.

57 Taking all these considerations into account, we conclude that if in the future the Solicitor were again served with a notice such as s 152 provides for, the probability is that, at least if he were not made subject to greater incentive and/or pressure to comply than has previously been the case, he would yet again fail to comply.

58 We express this conclusion as an affirmative finding of fact, of which we are comfortably satisfied. As indicated in the first of the propositions quoted above (at [44]) from Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 231, this is a matter on which the Law Society, as Informant, bears the onus of proof, to a standard consistent with the principles laid down in Briginshaw v Briginshaw (1938) 60 CLR 336.

59 In so saying, we depart from the approach adopted in Law Society of New South Wales v Berry [2005] NSWADT 46 at [14] (see [29] above). In dealing there with a closely comparable question, the Tribunal considered it sufficient to say that it ‘simply could not be comfortably satisfied that [the respondent solicitor] would not again so react if he were to be faced with a similar situation tomorrow’. With respect, we believe that this formulation understated what was required to be established by the Law Society. The Tribunal, as we see it, needed to be affirmatively satisfied of the probability that the respondent would again ‘so react’ in the relevant situation. Along with similar formulations in paragraphs [10] and [11] of the judgment, this statement would appear to us to have been the basis for the suggestion made to Kirby J during the appeal (see [32] above) that the Tribunal ‘did not properly regard the issue of onus of proof’.

60 Whether a strike-off order is warranted. This brings us to the crux of the determination that we must make on penalty. Do the present and past findings of professional misconduct against the Solicitor (based as they are almost entirely on his repeated failures to comply with a notice served on him under s 152 of the LP Act), coupled with the finding that we have just made regarding his probable behaviour in the future in like situations, warrant the further conclusions (a) that ‘the probability is’ that he is ‘permanently unfit to practise’ and (b) that he should therefore be struck off?

61 We have given very careful consideration to this question. Our decision is that these findings do not justify the further conclusion of probable permanent unfitness for practice, with all the drastic consequences that this entails. In so ruling, we take account of a variety of factors, which we will now seek to explain.

62 This is not a case in which the current deficiencies of the respondent practitioner are such as to affect his day-to-day work on behalf of clients. Except in two instances in the 1990s (dealt with in the decision of the Legal Services Tribunal in 1998) and in a further set of instances during the period from 1997 to 2001 (with regard to which the Tribunal placed significant weight on the existence of mitigating circumstances), the Solicitor would appear to have acted responsibly and effectively for his clients during a period of some 42 years in practice. (In this context, we take no account of the complaint by the two clients, David and Suzanne White, that led to the proceedings in the present case, as the merits of that complaint, so far as we are aware, have not been determined.)

63 His manifest unwillingness or incapacity to co-operate satisfactorily with investigations conducted by bodies such as the Law Society is undoubtedly a very important matter. We have found that his failures in this regard would be likely to continue if the occasion arose again, at least if he were not made subject to greater incentive and/or pressure to comply than has previously been the case. Within the array of qualities that can legitimately be expected of legal practitioners, there is in his case a significant deficiency.

64 We believe, however, that we can properly pay regard to the distinct possibility that an occasion for his problems in this area to come to the surface once more may never eventuate. It is relevant here that he is now 66 years old. We recognise that many legal practitioners remain in practice until they are significantly older than 66. But many do not, and we consider that the likelihood that the Solicitor might not remain in practice for many years more should in this particular context be taken into account into his favour. It is a factor tending to suggest that his case should not be regarded as one of probable permanent unfitness for practice.

65 We should add that in this connection we are not taking into account Mr Diethelm’s statements regarding the Solicitor’s future intentions as to practice (see [33] above). We agree with Mr Pierotti that these statements are not admissible as evidence.

66 So far as we are aware, the only case in this State in which misconduct taking the form of repeated breaches of s 152 of the LP Act has formed the basis for a striking-off order is Law Society of New South Wales v Berry [2005] NSWADT 46. We have already outlined one matter in relation to which we differ from the approach taken in that case. While we recognise that the ground on which the Tribunal’s order was set aside on appeal was not that the Tribunal erred in believing that a striking-off order might be appropriate in such a case, the fact remains that the order was not sustained.

67 For these various reasons, and after giving the matter close consideration, we have concluded that we cannot make the finding necessary to support an order for removal of the Solicitor’s name from the Roll, namely, that ‘the probability is’ that he is ‘permanently unfit to practise’.

The appropriate orders

68 In Legal Services Commissioner v Knudsen [2000] NSWADT 62 at [25], the Tribunal referred to what it understood, on counsel’s advice, to be the seven earlier Tribunal cases in which a practitioner had been guilty of misconduct taking the form of non-compliance with s 152. In one of them (described as an ‘extreme case’) the Tribunal cancelled the respondent’s practising certificate ‘for a period of more than one year’. In the remaining six, the orders made were one or more of the following: a reprimand, a fine, an order that the respondent’s practice be subject to supervision and an order for costs.

69 We have given particular consideration to two categories of order mentioned here, namely the cancellation of the respondent’s practising certificate for a specified period and a supervision order. Except through deterrence (general and specific), we do not see how either of these types of order would in the present case exert pressure on the Solicitor to comply promptly with any future requirement to provide information and/or documents under a provision such as s 152. Except through deterrence, therefore, they would not serve the principal purpose – that is to say, protection of the public – to which orders by way of penalty under s 171C of the LP Act should be directed.

70 We have decided instead that our orders under s 171C should include an order enlarging and reinforcing an undertaking that the Solicitor has already given to his counsel, Mr Diethelm. The Solicitor outlined this undertaking as follows in the course of cross-examination (Transcript, 30 November 2005, p 21, lines 44-49):-

… I’ve made an arrangement with Mr Diethelm and I’ve given him an undertaking that any letter that I receive from the Law Society I will immediately remit a copy to him and we will have an early conference for him to advise and assist me in relation to that response.

71 The Solicitor went on to say:-

I’ve spoken to other colleagues who are aware of my position and asked them if I were to approach them in terms of focusing on answering correspondence which I find unpalatable would they assist me. They’ve agreed that they would.

72 The Solicitor then confirmed, in answer to two brief questions by Mr Pierotti, that his undertaking was given to Mr Diethelm and that it required the Solicitor to ‘bring the matter to their attention’.

73 Neither Mr Pierotti nor Mr Diethelm referred to this part of the Solicitor’s testimony in their submissions as to penalty.

74 In our opinion, the course of action contemplated here by the Solicitor falls within the scope of the type of order described in s 171C(2)(c) of the LP Act. This provision states that when a solicitor has been found guilty of professional misconduct or unsatisfactory professional conduct, one of the orders that the Tribunal may make is to the effect ‘that the solicitor seek advice in relation to the management of the solicitor’s practice from a person specified in the order’.

75 We interpret this provision as including orders that the solicitor must seek advice in relation to only a specific aspect of the management of his or her practice. It would be unnecessarily restrictive to confine it to orders relating to the management of the solicitor’s practice as a whole, given that such an order would place a heavy burden on the person specified in it. We regard the furnishing of information or documents to a body such as the Law Society in compliance with a provision such as s 152 as constituting an aspect of the management of a solicitor’s practice

76 As we see it, the advantages to be gained by exercising in this case the power conferred by s 171C(2)(c) include the following. First, the undertaking already given by the Solicitor to Mr Diethelm may be supplemented by a formal order of the Tribunal. Secondly, the order may, and should, extend to communications received by the Solicitor from the Legal Services Commissioner as well as from the Law Society. Thirdly, if the Solicitor were to infringe the order, this would, among other things, provide a basis on which the Law Society, acting under ss 42(2)(d)(i), 48 and/or 60 of the Legal Profession Act 2004, could refuse to renew, or indeed could cancel, his practising certificate, on the ground that he was not a fit and proper person to hold a certificate. The order under s 171C(2)(c) would therefore have a coercive effect in addition to any element of deterrence.

77 At the hearing on penalty, neither party suggested, and we did not foreshadow, an order under s 171C(2)(c). But the Solicitor’s evidence of his undertaking to Mr Diethelm, as to which Mr Diethelm raised no issue in re-examination, demonstrates the willingness of both of them to sustain the relationship necessitated by such an order.

78 We accordingly order as follows under s 171C(2)(c) of the LP Act:-…

If at any time the Respondent is required by the Applicant or by the Legal Services Commissioner to provide information or documents relating to his practice as a solicitor, he is to seek advice regarding compliance with this requirement as soon as he practicably can from Mr Adrian Diethelm, barrister, or (in the event that Mr Diethelm becomes unable or unwilling to provide such advice when requested and notifies him and the Applicant accordingly) from a legal practitioner of appropriate seniority nominated by the Applicant following consultation with the Respondent.

79 Mr Diethelm acknowledged that it would be appropriate to impose a fine on the Solicitor in this case. We agree. Taking into account the duration of the Solicitor’s failure to supply information and documents, the occurrence of previous similar defaults and the absence of any mitigating factors on this occasion, we consider that the fine should be of a significant amount.

80 We order that the Solicitor pay a fine of $8,000.

81 By virtue of the elements in this case that we have just mentioned, we order also that the Solicitor be publicly reprimanded.

82 We do not accept Mr Diethelm’s submission regarding costs. The relevant provision of the LP Act is s 171E. Under s 171E(1), which provides that the Tribunal may make a costs order against a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct, the standard practice is to require all the informant’s costs to be paid even if one or more of the grounds in the information was dismissed. Furthermore, an order for payment of one-half of the Solicitor’s costs by the Law Society, such as Mr Diethelm has sought, is not authorised by the section. Section 171E(2) is the only provision empowering the Tribunal to make such an order. According to its express terms, it is only applicable when the Tribunal, at the conclusion of a hearing, ‘is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct’. That is not the case here.

83 We order that the Solicitor pay the Law Society’s costs as agreed or assessed.