Law Society of New South Wales v Mills

[2000] NSWADT 26

CITATION:	Law Society of New South Wales -v- Mills [2000] NSWADT 26
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT David Bruce Mills
FILE NUMBER:	992022
HEARING DATES:	08/11/99
SUBMISSIONS CLOSED:	12/01/1999
DATE OF DECISION:	03/21/2000
BEFORE:	Turner RF - Judicial Member; Barnes M - Judicial Member; Hayes E - Member
APPLICATION:	Compensation - Professional Misconduct - fail to carry out instructions - Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - mislead client
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT No appearance APPLICANT FOR COMPENSATION R Johnson, barrister
ORDERS:	1.The respondent’s name be removed from the Roll of Legal Practitioners.; 2.The respondent pay the applicant’s costs.; 3.The application for compensation is refused.

1 The Respondent solicitor admitted 8 March 1974 was one of a two man Sydney suburban practice.

2 His practising certificate was cancelled by the Law Society on 15 July 1993.

3 By letter 15 February 1997 he informed the Professional Standards of the Law Society:

“I do not intend to practice.”

4 By information filed 16 July 1999, the Law Society informed the Tribunal of having made investigations under Part 10 of the Legal Profession Act 1987 of complaints made against DAVID BRUCE MILLS, a legal practitioner within the meaning of s128 of the Act . The Council claims that the said solicitor, while practising as such, was guilty of professional misconduct on the following grounds:

1. In matters involving three separate clients he delayed and failed to carry out their instructions without reasonable cause.
2. He mislead the clients.

5 The Law Society has submitted it’s evidence in support of the information, affidavits, statutory declarations and correspondence. No appearance was made by the Respondent.

6 The Law Society has in it’s submissions advised the Tribunal that:

“The Tribunal can be satisfied that the Legal Practitioner knew that the proceedings were listed for hearing on 8 November 1999 yet he chose not to appear or be represented. The Tribunal accepts this evidence.”

7 The Respondent by a facsimile sent letter to the Society 20 August 1999 stated:

“I confirm my advice that I do not propose to take any action in this matter.”

GROUNDS OF COMPLAINT

1. Mervyn Ernest Webb - Client

8 In or about August 1983 the solicitor accepted instructions to file an application for a property settlement following upon the client receiving a Decree Nisi in the Family Court. The application was filed 17 July 1984. On 8 August 1984 the matter was listed and stood out of the list with leave to other party to apply to have the matter relisted. There was no appearance by or on behalf of Mr Webb.

9 On numerous occasions between 1986 and August 1993, the client enquired as to the progress of the matter. He was not informed of the true status of the matter.

a. The solicitor failed to carry out his client’s instructions;
b. The solicitor misled his client.

10 Mr John Peter Byrnes took instructions from Mr Webb on or about 8 August 1994. The Australian Legal Aid office granted the client Legal Aid in the property settlement application. On 15 September 1983. On 5 June 1984 Legal Aid was cancelled because the Respondent had not replied to the Deputy Director of the Legal Aid office. From 17 July 1984 the Respondent took no further steps on the client’s behalf. The Respondent had made statements to his client which were false and false to his knowledge

2. Michael Gurney

11 The Respondent was instructed in respect of a family law property settlement in 1990. The Court made consent orders on 31 May 1991 following upon the divorce. The client was to transfer his interest in the former matrimonial home to the wife, who was to pay certain sums of money to the mortgage and on transfer of the property, pay Mr Gurney an amount of $39,250.00, less any arrears accruing on the mortgage.

12 Subsequent to the orders of the Family Court 21 May 1991, the Respondent failed to finalise the matter in accordance with the Court’s orders.

13 The client on 15 July 1992 instructed solicitors in Coffs Harbour. From 31 May 1991 until 15 July 1992 the Respondent had made statements to his client which were false and false to his knowledge.

3. Joanne Curry

14 In October 1995 the client was a passenger in a motor vehicle which was involved in an accident. She sustained eye, neck and knee injuries. Two weeks after the accident she instructed the Respondent.

15 During 1986 she attended various doctors for medical reports to support her case. In 1986 or 1987 the Respondent informed her that he was awaiting advice from the Court as to a hearing date. In 1988 the client took out a second mortgage after having been advised by the Respondent that she would be able to repay the second mortgage within twelve months.

16 In June and July 1990 the client became concerned with the preparation of her case and was informed the case would be heard in August 1990. She had an arthroscopy performed on the left knee in February 1991. On each occasion when she enquired about the progress of her case, the Respondent advised her “the matter is still progressing”. In March 1993 the Respondent gave the client a cheque for $40,000 and by letter dated 20 May 1993 purported to set out “details relating to the finalisation of the above matter”.

17 The client complained to the Law Society and sought the assistance of a new solicitor in 1994. Her claim was settled for approximately $70,000.

18 The Respondent failed to carry out his client’s instructions. He misled his client. He made statements to his client which were false and false to his knowledge.

19 On 19 May 1992 solicitors of Coolangatta, Queensland complained to the Law Society on behalf of a client, Twin Towns Funeral Service. On 28 July 1992 the Respondent wrote to the Law Society adopting a letter 20 June 1991 addressed to the Queensland solicitors stating:

“We are acting on behalf of Mr Hoffman in a compensation claim and have been instructed that your client’s account will be met when our client’s claim is finalised. We are making enquiries at the present time to ascertain when the claim is expected to be heard.”

20 The statement was false to the Respondent’s knowledge as no proceedings had been commenced on Mr Hoffman’s behalf

21 Section 139(1) of the Legal Profession Act 1987 states:

“A complainant who has suffered a loss because of the conduct of the subject of the complaint may request a compensation order.”

22 Mr Webb seeks an order for compensation in professional costs and disbursements due to his unsuccessful application to the Family Law Court of Australia in Sydney.

23 By his application filed on 5 February 1996 he sought the following orders:

1. That the applicant be given leave to serve the application filed 17 July 1984.
2. That the applicant be granted leave to proceed with an application for property settlement.

24 In the same application the applicant husband seeks final property orders and the wife sought an order that the husband’s application be dismissed.

25 The Judicial Registrar in his judgment of 26 April 1996 found that:

“The husband has failed to demonstrate” a prima facie case and dismissed the application.

26 The application was dismissed on the merits and not because of the conduct of the subject of the complaint.

27 These costs arise from the unsuccessful property settlement case Mr Byrnes brought in before a Judicial Registrar in the Family Court instructing counsel. Hearing 3 April 1996. Judgment 26 April 1996. The Respondent was aware that a claim for compensation was being made.

28 The Law Society submits that the Legal Practitioner is not fit to practice and that his name should be removed from the Role of Legal Practitioners. It’s submissions rely on the proven facts and five authorities dealing with Common Law Professional Misconduct. Also misleading his clients.

29 The Tribunal orders:

1. The respondent’s name be removed from the Roll of Legal Practitioners.
2. The respondent pay the applicant’s costs.
3. The application for compensation is refused.