Law Society of New South Wales v McGrath

[2000] NSWADT 45

CITATION:	Law Society of New South Wales -v- McGrath [2000] NSWADT 45
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Christopher Keith McGrath
FILE NUMBER:	9801
HEARING DATES:	20/12/99
SUBMISSIONS CLOSED:	12/24/1999
DATE OF DECISION:	05/24/2000
BEFORE:	Barnes M - Judicial Member; Reed H - Judicial Member; O'Grady P - Member
APPLICATION:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Law Society of New South Wales -v- Konstantinidis [1999] NSW ADT 109
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT In person
ORDERS:	1. Application dismissed.

1 The Council of the Law Society of New South Wales (hereafter referred to as the Law Society) in an Application filed 8 January 1998 alleged that Christopher Keith McGrath (hereafter referred to as the Respondent), a legal practitioner within the meaning of s.128 of the Act whilst practising as a Solicitor was guilty of professional misconduct on the grounds that:

The Legal Practitioner failed to provide information and verify his instructions as required by the Council pursuant to s.152(1) of the Legal Profession Act 1987 in respect of two Complaints.

GROUNDS OF COMPLAINT

2 Pursuant to Section 142(1) of the Act the Commissioner forwarded a complaint to the Council for investigation under cover of letter dated 4 March 1996.

3 A letter dated 20 March 1996 was forwarded to the Legal Practitioner by the Council outlining the complaint and requesting a response within fourteen (14) days. The response to that letter was that the Legal Practitioner was no longer located at that address.

4 Enquiries were conducted to locate the Legal Practitioner from 20 March 1996 until he was located on 29 January 1997.

5 On 29 January 1997 Mr Gavin Connor from the Trust Account Division handed the complaint correspondence to the Legal Practitioner. No response was received from the Legal Practitioner in respect of the complaint.

6 On 8 May 1997 the Committee resolved that pursuant to Section 152(1) of the Act the Legal Practitioner be required to respond to the Society’s letter dated 20 March 1996 by statutory declaration within 14 days of the letter notifying him of the resolution unless he could provide a reasonable excuse for failing to comply.

7 On 12 May 1997 the Legal Practitioner was notified of this requirement in a letter.

8 A letter was forwarded to the Legal Practitioner dated 26 June 1997 requesting a response prior to 17 July 1997. No response to that letter was received from the Legal Practitioner.

9 The Legal Practitioner attended the offices of the Law Society on 30 July 1997.

10 A letter was forwarded to the Legal Practitioner dated 1 August 1997 confirming the discussions on 30 July 1997. No written response to that letter was received from the Legal Practitioner.

11 A letter was referred to the Legal Practitioner dated 15 August 1997 requesting a response. No written response was received to that letter from the Legal Practitioner.

12 On 11 September 1997 the Committee resolved to refer the Legal Practitioner to the Tribunal pursuant to Section 155(2) for failure to respond to the complaint pursuant to its said resolution.

13 By letter dated 15 September 1997 the Legal Practitioner was informed of the Committee’s Resolution of 11 September 1997. No response was received to that letter from the Legal Practitioner.

Gay Haggar

14 Pursuant to Section 142(1) of the Act the Commissioner forwarded a complaint to the Council for investigation under cover of letter dated 10 October 1996.

15 A letter dated 17 October 1996 was forwarded to the Legal Practitioner by the Council outlining the complaint and requesting a response within fourteen (14) days. The response to that letter was that the Legal Practitioner was no longer located at that address.

16 On 29 January 1997 Mr Gavin Connor from the Trust Account Division handed the complaint correspondence to the Legal Practitioner. No response was received from the Legal Practitioner in respect of the complaint.

17 On 11 April 1997 a letter was forwarded to the Legal Practitioner by the Council requesting a response within fourteen (14) days. No written response was received from the Legal Practitioner in respect of the complaint.

18 On 8 May 1997 the Committee resolved that pursuant to Section 152(1) of the Act the Legal Practitioner be required to respond to the Society’s letter dated 17 October 1996 by statutory declaration within 14 days of the letter notifying him of the resolution unless he could provide a reasonable excuse for failing to comply.

19 On 12 May 1997 the Legal Practitioner was notified of this requirement by letter.

20 A further letter was forwarded to the Legal Practitioner dated 26 June 1997 requesting a response prior to 17 July 1997. No response to that letter was received from the Legal Practitioner.

21 The Legal Practitioner attended the offices of the Law Society on 30 July 1997.

22 A letter was forwarded to the Legal Practitioner dated 15 August 1997 requesting a response. No written response to that letter was received from the Legal Practitioner.

23 On 11 September 1997 the Committee resolved to refer the Legal Practitioner to the Tribunal pursuant to Section 155(2) for failure to respond to the complaint pursuant to its said resolution.

24 By letter dated 15 September 1997 the Legal Practitioner was informed of the Committee’s resolution of 11 September 1997. No response was received to that letter from the Legal Practitioner.

25 The relief in Schedule 3 of the Application sought the following orders:

1. The Legal Practitioner be reprimanded.

2. An order that the Legal Practitioner pay the costs of the Law Society of and incidental to these proceedings.

26 The Respondent filed a Reply on 3 June 1999 which relevantly noted:

“... in reply to each of the allegations in the Application the application state the following:
Allegation 1:
In the complaint of Christopher Monti the allegation is admitted.
Allegation 2:
In the complaint of Gay Haggar the allegation is admitted."

27 This matter was initially listed for hearing on 26 October 1999. At that time, the Tribunal, with the consent of the Law Society granted the Respondent an adjournment. That adjournment was granted on the basis that the Respondent had recently instructed a Solicitor who was unable to attend on the relevant day. The Respondent sought the adjournment so that he could properly instruct the Solicitor, to facilitate the Solicitor’s appearance before the Tribunal. It was noted at that time the Respondent was not practising as a Solicitor and had not renewed his Practising Certificate since June of 1995. It was also confirmed at that time that the Respondent had not filed any Affidavits in Support of his own position.

28 Incidental to the granting of an adjournment, a further hearing date of 20 December 1999 was allocated. Provision was made to permit application to be made by the parties in the event there was any difficulty with that hearing date together with the provisions for the filing and serving of any Affidavits on behalf of the Respondent by close of business on 23 November 1999.

29 There were no applications for any adjournment prior to 20 December 1999 and the matter was listed for hearing on that day. The Respondent did not file or serve any Affidavit material.

30 On the hearing day the Respondent in summary asserted from the Bar Table the following:

1. His Solicitor could not appear that day.

2. He had been under the mistaken belief that if he had resolved the substance of the complaints raised by the members of the public that this would bring the proceedings to an end.

31 The Respondent on the basis of his legal adviser’s inability to appear and further based on the contention that a recent decision was relevant to his situation, sought to have the matter adjourned, so he could instruct his Solicitor.

32 The decision was that of the Law Society of New South Wales -v- Konstantinidis [1999] NSW ADT 109 (hereafter referred to as the Konstantinidis decision). This was a decision of 18 November 1999. Both the Tribunal and the Respondent had been alerted to that decision by Mr Boyd on 20 December. Mr Boyd made copies of the decision available to the Applicant and the Tribunal Members.

33 The Law Society opposed the adjournment application and the Respondent agreed he had taken no steps to make any application for an adjournment prior to this further allocated hearing date.

34 A directions hearing on 1 December 1999 had been provided for in the timetable laid down on 26 October 1999, and for reasons not clear to the Tribunal and apparently due to an administrative mistake the matter was not actually listed that day, however the Respondent admitted from the Bar Table that whilst on notice of the directions hearing, he had not himself attended on 1 December. The Respondent further acknowledged that whilst he had advised his Solicitor of the hearing date of 20 December 1999, on or about 27 October 1999, the Respondent had not again contacted that Solicitor and he only sought to contact him again on 19 December.

35 The Tribunal was not prepared in those circumstances having regard to the lack of steps taken by the Respondent up to 20 December to grant an adjournment of the proceedings generally, however a short adjournment was granted, for the Respondent and the Applicant’s legal representative Mr Boyd to have discussions as to the conduct of the matter.

36 In the course of the proceedings a position arose where the Respondent subject to reserving his rights to make submissions regarding the legal basis of the Application and in that context, reliance being placed upon the Konstantinidis decision, acknowledged:

(a) He would not be seeking leave to call any evidence.

(b) He did not oppose the tender of the Law Society Affidavit material.

(c) That if the Law Society made out its case he did not dispute the appropriateness of a Reprimand and Costs Order.

37 The Law Society proceeded to tender its evidence in Affidavit and documentary form.

38 The Law Society made its submission including a submission in relation to the Konstantinidis decision and the Respondent was afforded a short adjournment that day to make his final submission.

39 The Law Society’s submission in summary was as follows:

(a) The Society had made out its case in relation to a breach of s.152 of the Legal Professions Act.

(b) That it is an all or nothing situation. It was either professional misconduct or it was nothing. There is no in between ground.

40 There was no factual dispute as to correspondence submitted to the Respondent including:

A letter of 4 June 1996 which the Respondent received on 29 January 1997 which relevantly provided:

" Re: Complaint by Mr C. Monti
The Legal Services Commissioner, Mr Steven Mark, has referred to the Society a complaint made by Mr Monti dated 15 February 1996, copy of which is enclosed.
The complainant claims that you delayed finalising the business sale and lease.
Please let me have your written response within fourteen (14) days. A copy of your reply will be made available to the complainant for comment.
If you can suggest a course of action which may assist resolution of this matter I am keen to hear from you. I need your assistance.
I enclose for your information a brochure entitled "Senior Solicitor's Scheme”.

41 The Respondent was made aware of the resolution of the Society under s.152 to commence proceedings against him. The letter to the Respondent of 12 May 1997 from the Law Society being annexure “H” to the Affidavit of Mr Collins provided:

" Re: Complaint against you by G. Hagger and C. Monti

I refer to my letter to you dated 11 April 1997.

I advise that both of the above matters were considered by the Professional Conduct Committed on 8 May 1997 at which time the Committee resolved as follows:

That pursuant to s.152(1) of the Legal Profession Act, the solicitor be required to provide the information specified hereunder and to verify this information in a Statutory Declaration within 14 days of the letter notifying of this resolution. The solicitor if unable to comply with this resolution, must supply a Statutory Declaration within the specified time detailing any reasonable excuse for failure to comply. Please note that the resolution is in respect of both of the complaints by Ms Hagger and Mr Monti.

Required Information

The solicitor responded to the Society’s letter to him concerning the complaints as handed to him by the trust account inspector Mr G. Connor on 29 January 1997.

I draw your attention to Section 152(4) of the Act which provides that a legal practitioner who, without reasonable excuse, fails to comply with a requirement under the Section is guilty of professional misconduct.”

42 The Society submitted that s.151(1)(c) was a sufficient basis to make out the complaint in that it provides:

“To otherwise assist or co-operate with the investigation of the complaint in a specified manner”.

43 The Practitioner had done nothing to respond to that letter at all and this inactivity, constituted a breach of s.152 and more particularly 152(4).

44 In relation to the matter involving Gay Hagger reliance is placed upon a letter of 17 October 1996 which relevantly provided:

"Re: complaint by Ms G. Hagger.

The Legal Services Commissioner, Mr Steve Mark, has referred to the Society a complaint made by Ms Hagger dated 27June 1996, a copy of which is enclosed.

The complainant claims that:

1. You delayed in acting upon the complainant's personal injuries matter.

2. You mislead the complainant into believing that her personal injury matter was being dealt with.

Please let me have your written response within fourteen (14) days. A copy of your reply will be made available to the complainant for comment.

If you can suggest a course of action which may assist resolution of this matter I am keen to hear from you. I need your assistance.

I enclose for your information a brochure entitled "Senior Solicitors' Scheme".

45 Further reliance is placed upon a letter of 12 May 1997 referred to above, which of course relates to both complaints.

46 Turning to the use of the word “Respond” the Tribunal has had regard to definitions within the Shorter Oxford English Dictionary and in particular the following:

“Respond
An answer or response;
To answer or correspond to;
To reciprocate;
To correspond to something;
To make answer or give a reply in words;
To answer by some responsive act;
To act in response to some influence;
The definition of “response” relevantly provides
An answer, a reply."

47 These words are broad in their meaning and are not at all delineating as to the nature or the quality of the response.

48 Yet the sub-section relied upon by the Law Society relies on the following:

"To otherwise assist in or co-operate with the investigation of the complaint in the specified manner.”

49 The Respondent briefly submitted that the matter fell within the same circumstances as the Konstantinidis decision and specifically he relied upon paragraph 48 of the Judgment, which provides:

"Though this letter identifies the information being sought by requiring the Legal Practitioner to provide a response to the letter dated 21 November 1996, that request, in our opinion, is too broad and vague to be characterised as a particular request for Application for the purposes of s.152(1) of the Act. The terms of the request do not provide the Legal Practitioner with any guide as to what specific response is required in relation to the letter dated 21 November 1996.”

50 In pressing an allegation of Professional Misconduct the Law Society is relying upon an alleged breach of s.152(1) and not any common law test of professional misconduct. Accordingly regard must be had to the proper construction of that clause and any variation in the clause within the time frame of the particulars of complaints relied upon.

51 Section 152 of the Legal Profession Act 1987 relevantly provided up to 1 April 1997 the following:

“(1) For the purpose of investigating a complaint, a Council or the Commissioner may require the Legal Practitioner against whom the complaint is made to provideinformation and/or to produce documents, and to verify such information by Statutory Declaration.
…..
(3) A requirement under this section is to be notified in writing to the Legal Practitioner and is to specify a reasonable time for compliance.
(4) A Legal Practitioner who without reasonable excuse fails to comply with such a requirement is guilty of professional misconduct."

52 In and after 1 April 1997, Section 152 relevantly provides:

"(1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any Legal Practitioner or interstate Legal Practitioner, require the Legal Practitioner or interstate 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 the document) specified in the notice.
(c) Otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.
…..
(3) A requirement under this section is to be notified in writing by the Legal Practitioner or interstate Legal Practitioner and is to specify a reasonable time for compliance.
(4) A Legal Practitioner or interstate Legal Practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.”

53 This Tribunal agrees with the observations of the Tribunal in the matter of Konstantinidis in relation to the standard of truth and is bound by the decision in Briginshaw -v- Briginshaw (1938) 60SLR 339 and also relies upon the statement of Justice Dixon at 361:

"Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and the consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.

54 In this matter regard must be had to the proper construction of s.152(1) at the relevant point in time. In relation to the complaint of Christopher Monti the itemised particulars relied upon, are both prior to and subsequent to 1 April 1997. Similarly in the particulars of the matter of Gay Haggar the particulars are both prior to and subsequent to 1 April 1997.

55 There is no dispute as to the factual circumstances and the Tribunal finds all facts as alleged by the Law Society have been made out. There is certainly no suggestion that the Respondent sought to rely upon any defence based upon reasonable excuse.

56 The Tribunal considers that any alleged breach of s.152 of the Legal Professions Act which relies upon events up to 1 April 1997 has not been made out. The Society's call for a "written response" from the Respondent in relation to the complaints dealing with Mr Monti and Ms Hagger is too vague a request in our view to support an alleged breach of the section.

57 In relation to any alleged circumstances which give rise to a breach post 1 April 1997, Mr Boyd for the Law Society emphasised 152(1)(c) which provided:

"to otherwise assist in, or co-operate with, the investigation of the complaint in the specified manner."

58 The Tribunal is not comfortably satisfied that the call for a written response satisfies the requirements of a specified manner.

59 The Tribunal agrees with Mr Boyd's submission that it is an all or nothing proposition. The Tribunal finds it is too general to fall within the statutory requirements.

60 In the complaint of Gay Haggar, leaving aside the particulars of the complaint as to the alleged conduct of the Respondent, such complaint moved in tandem with that of Mr Monti.

61 Accordingly, having considered the Application and the particulars therein and the evidence, the Tribunal is not comfortably satisfied that the allegations in the Application have been made out.

62 The Tribunal declines to make the orders sought by the Law Society. The Application is dismissed.