Law Society of New South Wales v Musgrave

[2000] NSWADT 125

CITATION:	Law Society of New South Wales -v- Musgrave [2000] NSWADT 125
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Peter John Musgrave
FILE NUMBER:	992034
HEARING DATES:	06/03/2000, 07/03/2000
SUBMISSIONS CLOSED:	04/17/2000
DATE OF DECISION:	09/05/2000
BEFORE:	Brennan JWF - Judicial Member; Pheils J - Judicial Member; Miller PO - Member
APPLICATION:	Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - impersonate a Solicitor - Professional Misconduct - mislead client - Unsatisfactory Professional Conduct - fail to carry out client's instructions - Unsatisfactory Professional Conduct - fail to respond to client
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT G Walsh, solicitor
ORDERS:	No orders, findings only.

1 On 1 October 1999 the Applicant, the Council of the Law Society of New South Wales (“the Society”) informed the Tribunal that, as a result of the Council’s investigations of complaints made under Part 10 of the Legal Profession Act 1987 against the Respondent (“the solicitor”) the Council claims that the solicitor, while practising as a solicitor, was guilty of professional misconduct and unsatisfactory professional conduct.

2 The Society alleged that the solicitor was guilty of fifteen (15) grounds of professional misconduct (broken into four (4) separate counts) and on two (2) grounds of unsatisfactory professional conduct. In addition two orders for payment of compensation were sought. The first was by a complainant Tammy Martin who sought $100.00. The second claim related to a complaint that was withdrawn and there being no evidence on that claim it is dismissed.

3 The first ground of professional misconduct alleged that the solicitor deliberately misled, or endeavoured to mislead, his clients in three specified matters.

4 The second ground of professional misconduct alleged that the solicitor had been guilty of gross negligence and delay in the handling of ten (10) matters.

5 The third ground of professional misconduct alleged was a willful contravention of Section 61 of the Legal Profession Act while the fourth count alleged was that the solicitor falsely represented that he was a solicitor named Steven Miller.

6 The two counts of unsatisfactory professional conduct alleged: Firstly that the solicitor failed to carry out his client’s instructions and secondly that the solicitor failed to respond to his client’s letter requesting a refund of one hundred dollars ($100.000).

7 In the course of the hearing two of the three counts alleging that the solicitor deliberately misled, or endeavoured to mislead his clients, were withdrawn, leaving one count under that hearing relating to a client, Malcolm Devine. In addition some of the ten complaints of gross negligence and delay against the solicitor were also withdrawn.

8 In other proceedings before the Tribunal by the Legal Services Commissioner against the solicitor a hearing was fixed for 26 October 1998. Two days before that date, the solicitor disappeared from Coffs Harbour and reappeared, on 5 November 1998, when he returned to his home and received medical treatment. It was during that period that the events which gave rise to the fourth count of impersonating another solicitor are said to have occurred. The Tribunal was assisted with a large volume of medical evidence in relation to the solicitor’s disappearance and his health at that time. The solicitor has in answer to some complaints admitted the facts relied upon by the Law Society but relied upon his medical condition at the relevant time to support a finding that he was not responsible and/or did not do the acts alleged against him willfully or intentionally. These medical matters, accordingly, have an impact upon a number of the issues before the Tribunal and it appears appropriate to deal first with those issues.

9 On behalf of the Law Society, an affidavit was filed by Dr Gertler, who was also called for cross-examination. On behalf of the solicitor, Dr David Straton, psychiatrist, and Dr Wendy-Louise Walker, psychologist, also swore affidavits and gave evidence during the hearing. Various medical reports and tests were tendered in evidence.

10 The evidence before the Tribunal established a particularly sad and distressing series of events which impacted heavily upon the solicitor’s life in the lead-up to his disappearance on 24 October 1998. In his first six years of practice, the solicitor worked in the Sydney area, in the course of which he was involved in a number of very distressing Family Law matters, which appears to have led to his decision to move to the country. One of those matters to which he referred was a proceeding where he secured access for a parent who, on the first exercise of that access, killed himself and his three young children. The solicitor also gave evidence of his distress before he came to Coffs Harbour in acting in a custody dispute in which there was extremely distressing evidence of sexual abuse on a young girl.

11 After a period of employment outside the metropolitan area, he was involved in litigation with his former employers when he sought to establish a practice with his ultimate partner and that litigation the solicitor took very personally and he dates the deterioration in his health from that time in about 1992.

12 The solicitor’s evidence was that, at the time of the litigation with his prior employers, he enjoyed good health, but then commenced to worry more about work and about trivial matters that had not previously worried him. He experienced mood changes and found himself staring into space and he said became depressed and experienced some impairment of concentration and memory retention. Unfortunately, at this time, and indeed up until the time of his disappearance, the solicitor did not seek any medical help. Supporting evidence of the increased stress in his life, his being quiet, withdrawn, moody and overworked was provided by his former professional partner, his wife and his former secretary.

13 Insofar as the solicitor admits some of the complaints mentioned in the information but denies on medical grounds that he is responsible in that his actions were not willful or intended, the solicitor seeks to rely upon medical evidence that he was suffering from a disassociative fugue and, insofar as that was remote in part of time from the facts of other complaints he relied upon his periods of depression and disassociation to excuse him or to minimise his responsibility.

14 Both psychiatrists gave evidence in relation to the disassociative fugue, which appears first to have been raised by Professor Montgomery, following the October 1998 incident. Dr Straton in his report of 25 February 1999 found it his diagnosis that the solicitor “did indeed suffer from a dissociative fugue and he is also suffering from an adjustment disorder with depressed mood”. In his oral evidence, Dr Straton considered the issue of malingering in this case and concluded "Yes, it was my judgment that this was a genuine case of dissociation fugue” (p88,89).

15 In evidence the standard texts of the American Psychiatric Society was referred to and an extract tendered. The definition of dissociative fugue was accepted by Dr Gertler as:

(i) Characterised by sudden loss of personal identity and of the memory of one’s entire past life, by the assumption of a new identity, and by a tendency to wander far from home to take up the new residence, occupation and life.
(ii) He also adopted from that text the description:
“the disorder usually occurs in the contact of heightened emotional tension arising from conflict in one’s personal or professional life. It may also begin after stressful exposure to civilian catastrophes or military combat. As in the other associative disorders, the process of disassociation is the central causative factor in symptom formation. It results in the exclusion from consciousness of a patient’s personal identity and memories of the past”.

16 The final sentence from the text was accepted by Dr Gertler as an extreme case.

17 Dr Gertler was engaged by the Law Society to assess the solicitor’s fitness to practise. Dr Gertler’s first report refers to the solicitor’s describing his “chronic anxiety with probably mild depression and irritability over a period of some months prior to the episode in October 1998”. From the oral evidence Dr Gertler’s record of the solicitor’s history of his difficulties is of shorter duration than the solicitor outlined to the three other experts. Dr Gertler did not consider it appropriate to make other enquiries of family or professional associates, or indeed the treating doctor, and his initial opinion relied on the answers he obtained to his questions in the initial consultation. In his opinion the solicitor did not suffer from a dissociative fuge as was the evidence of the other experts. Dr Gertler subsequently read various reports before submitting his second opinion and his views remained unchanged.

18 Dr Walker, in her report of 15 March 1999 in relation to the solicitor referred to four criteria for Dissociative Fugue transcribed from the Diagnostic and Statistic Manual of Mental Disorders of the American Psychiatric Association as follows:

(a) The predominant disturbance is sudden unexpected travel away from home or one’s customary place of work and the inability to recall one’s past;
(b) Confusion about personal identity or assumption of a new identity;
(c) The disturbance does not occur exclusively during the course of Dissociative Identity Disorder and is not due to the direct psychological effects of a substance (e.g. drug abuse, a medication) or a general mental condition (e.g. temporal lobe epilepsy);
(d) The symptoms cause clinically significant distress or impairment in social occupational or other important areas of functioning.

Dr Walker found that in relation to his October 1998 disappearance these four criteria were met. She carried out various tests and took a detailed history. She reported (p6) that other interviews “yielded spontaneous comments about minor instances of abnormal dissociation proceeding the fugue and increasing in intensity.”

19 Dr Walker on page 6 of her report of 15 March 1999 pinpoints the fugue status as being for the period of his absence but she pointed out at that time the solicitor “continues to suffer disruption to consciousness, memory and perception in his daily life (in the form of staring into space, not attending to things people say and disruption to focus of concentration and memory)”. (p7)

20 Dr Gertler, despite the apparent typographical error in the transcript on page 40, clearly from his cross-examination and his reports quite emphatically disagrees with the opinions of Professor Montgomery and Drs Walker and Straton that the solicitor suffered a dissociative fugue.

21 Dr Gertler rejects the finding of the dissociative fugue. Indeed his findings are inconsistent with any psychiatric illness. Dr Gertler’s views are perhaps that shown from the following three quotations from the transcript on 29 November 1999 (first at p41-42):-

Q. Is there a difference between dissociative fugue and dissociative episodes?
A. Yes. Well, a fugue really relates to a prolonged episode of disassociation. Dissociative episodes occur normally. People drive along and suddenly are aware, it is ten minutes further on and they haven’t been aware of driving. That is a type of dissociative state.
Q. But when they come out of that state they may have no recollection of what they did?
A. No. Well, they are aware that they drove, they did something, but they don’t have a recollection of driving past a certain place or through a certain town, are not aware of the passage of time.
Q. Are these dissociative states or episodes solely due to mental illness?
A. No.
Q. Are they part of any particular mental illness?
A. No.
Q. They are just normal?
A. Those types of, yes, episodes, dissociation for want after better word.
Q. So if someone was suffering from episodes of disassociation, you wouldn’t necessarily extrapolate from that that they were mentally ill?
A. That is right.
Then at page 53
Q. Were there any findings which you made or evidence which would explain his behaviour through some mental illness or otherwise?
A. I think at that time he was under stress, he was suffering from anxiety and he may have been depressed as well. He was certainly depressed in February when I saw him, but not profoundly depressed. I would explain his behaviour as relating to anxiety, not severe anxiety sufficient to lead on to dissociative fugue, but anxiety leading to certain behaviour. I don’t know whether that is --
Q. Well, it depends on the certain behaviour. Is the certain behaviour the behaviour of an automaton or behaviour that a person is likely –
A. I though it was consciously directed.
Q. You were asked questions about his memory. Did you form any view as to this man’s loss of memory of events in the past in the course of his practice? Did any issues arise in your examination of him.
A. In terms of prior to October?
Q. Correct.
A. I didn’t think there was any evidence of him suffering from a psychiatric condition severe enough to warrant or to lead to loss of memory at other times.
Q. Or of his being in a situation where he did things and didn’t know what he was doing?
A. I think he would have been aware of what he was doing at that time.
And finally p55
Q. Having read the factors set out in Dr Walker’s report, the second report, and from your observations of Mr Musgrave about which you have given evidence, are you able to give an opinion as to whether Mr Musgrave may have been suffering some psychological or psychiatric defect prior to 1997?
A. I am able to say that he was suffering from stress in his practice, anxiety, psychological rather than psychiatric.
Q. Would those factors cause a person such as Mr Musgrave not to be aware of what he was doing in the sense of writing letters or having conversations with a person, a client?
A. At the time he was doing them?
Q. Yes.
A. No.

22 Dr Walker in her report of 12 November 1999 expressed her opinion as follows:

“Mr Musgrave suffered a major dissociative episode, fugue, more than a year ago. However, in my opinion, he had been experiencing more minor episodes of dissociation for a decade before that (possibly earlier). It is most likely that his misdemeanours in his practice have resulted from his abnormal dissociation; this mechanism has permitted him partly to avoid the experience of stress, worry and guilt-feelings but has also distorted his judgment significantly at times.”

23 In the evidence of Dr Straton on 29 November 1999 (p89) which formed part of the evidence in these proceedings, the following passage deals with the other medical finding which is important to a determination of the issues before the Tribunal:

Q. And you also mentioned in your report of 25 February 1999 that he was a suffering from an adjustment disorder with depressed mood?
A. Yes.
Q. One of the issues touched upon with Dr Gertler by my learned friend was the length of time that Mr Musgrave may have been suffering from such illness.
A. Yes.
Q. Are you able to express an opinion as to how long a time, if any, he may have been suffering from a adjustment disorder with depressed mood or depression?
A. Well, some of the key symptoms that we look for in depression are things like early morning waking, at 2 or 3 in the morning, and loss of patient’s libido, loss of sex drive, and I did ask if that was the case and the answers that he gave me were that his sleep had been disturbed through early morning waking for about eighteen weeks, he had been depressed for eighteen weeks, irritable for two years and his libido had been reduced for eighteen months, and he didn’t go to social activities very much. So I drew the judgment that it was two years, from February 1997 to February 1999. In addition the history of panic attacks and chest pains in late 96 I saw as being probably the first signs.

24 There is a large amount of medical evidence before the Tribunal. The Tribunal is satisfied that on the balance of probabilities the solicitor did suffer a dissociative fugue in October 1998 from approximately the time of his disappearance until some time about the time of his return to Coffs Harbour on 5 November 1998. This was an episode of illness of short duration.

25 The Tribunal also finds that the fugue was preceded for a time extending over a period of about two years in which the solicitor on the evidence suffered anxiety, increasing stress, loss of concentration, but was not clinically depressed. The Tribunal is satisfied on the balance of probabilities that while these experiences may in part help to understand the solicitor’s behaviour they do not excuse his misconduct although that misconduct no doubt heightened his distress and anxiety. The Tribunal finds that prior to the onset of the dissociative fugue the solicitor did not have a condition which relieves him of responsibility for his acts.

Complaint by Malcolm Devine

26 The Society submits that the matters alleged amount to professional misconduct. The solicitor in his reply admits that he misled his client and the facts particularised in 28 separate paragraphs but says that by virtue of his then psychiatric condition the misleading was not carried out by him knowingly or intentionally. The significance of those particulars could well be lost if it were now sought to paraphrase them so these are detailed in full as follows:

“1.(b) The solicitor misled Malcolm Devine by telling him that a Statement of Claim had been issued when it had not and by then furnishing him with information in relation to the progress, conduct and settlement of that non-existent litigation.

Particulars of complaint:

(i) In November 1992 Malcolm Devine (the complainant) sought advice from the solicitor in relation to the recovery of $10,000.00 that he had paid to Alex Lewis (Lewis) for the part-purchase of a business in which he then worked, as well as claiming monies from Lewis for unpaid wages, sales commission and interest which was owed to him.
(ii) The solicitor drafted a Statement of Claim which nominated the complainant as the Plaintiff and East West Hotel and Leisure Pty Limited, Alexander Lewis and Rhonda Lewis as respectively the First, Second and Third Defendants.
(iii) The solicitor did not file the Statement of Claim.
(iv) In early 1993 the solicitor informed the complainant that he had filed the Statement of Claim in the Coffs Harbour District Court.
(v) The solicitor informed the complainant that because the Coffs Harbour District Court only sat a few times a year, it would take several years before the Statement of Claim would be heard.
(vi) In about February 1995 the solicitor informed the complainant that the Statement of Claim was scheduled to be heard in April 1995.
(vii) The solicitor advised the complainant in April 1995 that he would be required to attend the Coffs Harbour District Court during the then forthcoming court sittings.
(viii) The solicitor subsequently informed the complainant that his Statement of Claim would not be heard during those sittings but it was likely to be heard in the following sittings of that Court.
(ix) In late 1995 the solicitor informed the complainant that his Statement of Claim was to be heard at the forthcoming Coffs Harbour District Court sittings and that he would be required to attend Court and to give evidence at that hearing.
(x) In anticipation of giving evidence the solicitor held conferences with the complainant in relation to the hearing of his Statement of Claim.

(xi) The solicitor informed the complainant that he had had some informal discussions with the Defendant Lewis and that an offer of $25,000.00 inclusive of all outstanding monies and Court costs had been made in settlement of the Statement of Claim. The complainant rejected this “offer” and a “counter offer” in the sum of $40,000.00 was made. The complainant was advised that the “counter offer” of $40,000.00 had been rejected by the Defendant Lewis.
(xii) In about 1995 or early 1996, during the course of a conference between the solicitor and the complainant, the complainant instructed the solicitor to brief a barrister in relation to a hearing of his Statement of Claim. The solicitor undertook to brief a barrister. No barrister was briefed.
(xiii)In early 1996 the solicitor informed the complainant that the District Court Judge, who was to preside at the forthcoming Coffs Harbour District Court sittings, had advised that he would list the complainant’s Statement of Claim for hearing in Sydney.
(xiv) On 10 September 1996 the complainant attended upon a conference with the solicitor. The solicitor informed the complainant that his Statement of Claim was listed for hearing on 23 October 1996.
(xv) Shortly prior to 23 October 1996, the solicitor informed the complainant that the hearing date of his Statement of Claim had again been vacated.
(xvi) On 19 May 1997 the solicitor informed the complainant that the hearing of the Statement of Claim was to be listed for hearing in the Sydney District Court on 14 July 1997. The complainant made arrangements to travel to Sydney on 13 July 1997 in anticipation of giving evidence at that hearing.
(xvii) However, a few days before 14 July 1997 the solicitor informed the complainant that the Defendant Lewis had lodged a cross-claim for $100,000.00 for loss of business income because the complainant had set up a business in competition to that being run by the Defendant Lewis. The solicitor informed the complainant that the hearing date of his Statement of Claim had been vacated.
(xviii) The solicitor subsequently informed the complainant that the hearing of his Statement of Claim was now listed to commence on 11 August 1997 and that a barrister had been briefed to appear at that hearing but that his (the complainant’s) attendance was not required.
(xix) In late 1997 the solicitor informed the complainant that the hearing of his Statement of Claim had been concluded and that Judgment was expected in early 1998.
(xx) In about June or July 1998 the solicitor informed the complainant that he had been successful in his District Court action and that orders had been made by the District Court for Judgment in his favour in the sum of $32,600.00 plus legal costs and interest.
(xxi) As a result of the information supplied by the solicitor, the complainant sought and obtained a bank loan from the National Australia Bank in the sum of $35,000.00 which he intended to repay out of the Judgment monies.
(xxii) When the settlement monies were not forthcoming by the end of August or early September 1998, the solicitor informed the complainant that he would issue bankruptcy notices to the Defendants to recover the Judgment monies.
(xxiii) In October 1998 the solicitor informed the complainant that the Judgment monies were to be paid by 30 October 1998 and if not paid by then, arrangements had been made for a local real estate agency to take possession of the Defendant’s property and for the auction of such property.
(xxiv) During a conference between the solicitor and the complainant on 15 September 1998, the complainant proposed a counter-offer be put to the defendant Lewis that if he was having difficulties raising the funds by 30 October 1998 the complainant would provide finance in the sum of approximately $40,000.00 (being settlement monies of $32,600.00 plus fees) and which could be repaid in monthly instalments including interest at bank rates. The complainant proposed that this finance would be subject to a mortgage over the Defendants’ property.
(xxv) On 21 October 1998 the solicitor informed the complainant that a bankruptcy notice was to be “finalised” on 30 October 1998 and that a local real estate agency would be making arrangements for an auction of the Defendant’s property after that date.
(xxvi) On 21 October 1998 the solicitor also informed the complainant that the trustee in bankruptcy would be taking possession of the Defendant’s property on 2 November 1998 if the complainant’s proposed offer of finance was not accepted by the Defendant.
(xxvii) The solicitor also informed the complainant that the complainant’s counter offer of finance had been put to the Defendant. Lewis and that a decision as to acceptance would be made prior to the settlement date of 30 October 1998.
(xxviii) No Statement of Liquidated Claim had ever been filed and consequently there was no Judgment in favour of the complainant in the sum of $32,600.00 plus costs and nor were there any enforcement proceedings or negotiations undertaken by the solicitor.”

27 The course of conduct complained of extends from early 1993 when the solicitor wrongfully informed his client that he had filed the Statement of Claim right through to October 1998 that is within a few days of the solicitor’s disappearance prior to his then pending appearance before this Tribunal. This is an appalling story of a client being deceived by the solicitor over a long period of time and the facts are verified by Affidavit by Mr Devine sworn 8 February 2000.

28 In his evidence on 7 March at page 79, the solicitor, when asked for an explanation said:

“I can’t recall a great deal of it. I do know that I did receive instructions from Mr Devine from the material that I have seen. I obviously prepared a Statement of Claim. As to why that wasn’t filed and not proceeded with, I don’t know.”

The solicitor asserted that he had an honest belief that he did not knowingly or intentionally mislead Mr Devine and that he did not have any recollection of the particulars relating to the misleading of his client. The solicitor confirmed that he did not dispute the factual matters alleged. The Tribunal is satisfied that the facts relied upon by the Society are established from the material before it.

29 The Tribunal has found that, in the period of his disappearance from 28 October 1998 to 5 November 1998, the solicitor was suffering from the dissociated fugue already described.

30 There were sources of stress in the solicitor’s life before he came to Coffs Harbour and subsequently. The evidence of Dr Walker on 6 March (page 25) is part of the medical evidence in the proceedings brought by the Legal Services Commissioner admitted into evidence in these proceedings. It is a helpful source of medical evidence in assessing the solicitor’s conduct before the fugue. The psychologist makes it clear that she cannot reconstruct events from the past to determine which events were the result of dissociation. One question and answer (page 27) fits into part of the time frame of these factual matters:

Q: Now, Mr Musgrave has put forward as an explanation of his behaviour between 1993 and 1995 that he had his head in the sand. Would you think that was an appropriate characterisation of behaviour that I put to you?
A: It is not a justification, but it is probably a fair description of what he experienced, that whenever there were difficult, guilt-provoking, anxiety provoking situations, instead of stepping back, setting it out and getting appropriate advice, he tended to slither sideways, so ‘head in the sand’ is quite a reasonable description, I think, of what went on.

31 The gross deception detailed occurred prior to the onset of the fugue on 28 October 1998 and the Tribunal finds that the solicitor’s conduct constitutes behaviour which satisfies the non-exhaustive definition of professional misconduct in the Legal Profession Act. The misconduct is disgraceful.

GROUND 2(a) Fairbairn

32 This complaint was based on the failure of the solicitor to file an Affidavit of Service in respect of service on the first defendant within the period required under the District Court Rules, as a result of which the claim lapsed. The complaint is defended.

33 The evidence before the Tribunal is contained paragraph 3.5 of the solicitor’s affidavit of 14 February 2000 and his oral evidence. His evidence might be best summarised by his answer to one question at p83:-

Q. Could you just explain the circumstances in which you did not file the Affidavit of Service?
A. In that matter it as a civil action against Mr Fairbairn’s son and a friend of his son, Mr Irvine. We had to take an action out against both parties because that is who Mr Fairbairn Snr had advanced money to, but I was under clear instructions from Mr Fairbairn not to attempt to recover at all from his son. He didn’t expect his son to repay the money. He wanted Irvine to pay it. “……. I did not file an Affidavit of Service in the matter because it wasn’t really the Defendant Fairbairn that we were after; it was the other Defendant, Irvine against whom Mr Fairbairn Senior sought recovery.”

34 The only evidence before the Tribunal is that the solicitor acted in accordance with the client’s instructions and this complaint is dismissed.

GROUND 2(b) K & J Trucks Coffs Harbour Pty Limited

35 The complainant alleged that the solicitor failed to advise his client that the litigation to which it was a party as Defendant which had previously been struck out for want of prosecution had been the subject of a successful Notice of Motion to restore it to the List and that he failed to advise progress of the litigation between December 1997 and October 1998. The particulars indicate that the matter was listed in the District Court on 6 October 1998 for the Plaintiff was to show cause.

36 In his oral evidence the solicitor denied that he had not kept Mr Schuhmann informed at all and deposed to his having also had discussion with Mr Schuhmann’s wife whom he said was involved actively in the company. The solicitor gave evidence that he saw Mrs Schuhmann most weekends and that their children played soccer together and discussions on this and other matters would occur on those occasions. In cross-examination reference was made to those conversations with Mrs Schuhmann but the solicitor was not really tested on that point. There is no evidence from Mrs Schuhmann but there was an opportunity for the Society to speak to her by phone or to seek time to contact her as the solicitor had not mentioned his conversations with Mrs Schuhmann in his Affidavit. The evidence of the solicitor and of Mr Schuhmann conflict. Exhibit 7 comprises two accounts for professional services sent to the client dated 18 August and 26 August 1998 and there is evidence of conversations with Mrs Schuhmann. The evidence is confused and does not establish if and when certain events happened. The Tribunal finds that this complaint is not established and it is dismissed.

GROUND 2(c) Quinn - Failure to appear at callover

37 The facts were not in dispute. The solicitor received instructions on 27 February 1998 to take debt recovery proceedings. On 14 May 1998 he issued an Amended Statement of Liquidated Claim in the proceedings which had been instituted initially by another solicitor. Those proceedings were taken in Grafton Local Court and Notice of Grounds of Defence were filed on 25 Jun 1998. On 8 September 1998 the matter was listed for callover and the solicitor did not appear on that occasion. On application of the defendant the complaint was non-suited and the solicitor did not inform the complainant of that non-suiting before the incident on 28 October 1998 after which he effectively ceased to practice.

38 In his affidavit the husband details correspondence with the solicitor for the defendant in relation to a change of venue from Grafton to Coffs Harbour Local Court on the basis that this would be more convenient to the solicitors for each party.

39 The solicitor in reply says that his non-appearance on 8 September 1998 was caused by administrative error. This evidence and explanation was confirmed in cross-examination and the Tribunal is of the view that his failure to attend while negligent does not constitute unsatisfactory professional conduct, let alone the professional misconduct of which the Law Society complains. This ground is dismissed.

40 Annexure “M” to the affidavit of Raymond John Collins sworn 1 October 1999 raises another conduct issue in relation to the Quinn proceedings which alleged misleading conduct. This is not particularised in the grounds and there appears to be no indication of whether or not the solicitor replied to the Society’s request for a response. This issue accordingly cannot be considered further.

GROUND 2(d) Malcolm Devine and Patricia Devine - stamp duty

41 This complaint was detailed in eight (8) particulars of which six (6) were admitted by the solicitor. It was admitted that the solicitor received instructions to act on the purchase a property and to transfer an existing property owned by the clients into a superannuation fund in conjunction with financial advice to be provided by the accountant for the clients. There were several discussions including the solicitor in relation to superannuation requirements which were on the basis that the transfer to the Fund had to be executed by May 1998. Particular (iii) alleges that in May 1998 the solicitor requested a cheque for stamp duty on the property being purchased, which was provided. The Society alleges but the solicitor does not admit that the solicitor then returned the stamp duty cheque on the property being acquired to the clients and advised that stamp duty on the superannuation property would be a nominal $10.00.

42 It is agreed that the solicitor sent the Transfer on the property being transferred to the superannuation fund and the deed establishing a unit trust to his Law Stationers for assessment of duty. On 13 July 1998 the document was returned to the solicitor unstamped with advice that ad valorem duty plus penalty for late payment was payable on the Deed and the Transfer of the property to the superannuation fund. Finally the Society particularises and the solicitor does not admit that the solicitor did not seek payment of the stamp duty on the property being transferred to the superannuation fund and did not take steps to complete the transfer in sufficient time to have it included in the Trust by May 1998 to the financial detriment of the clients.

43 The affidavit by Mr Devine sworn 8 February 2000 annexes a letter from the solicitor dated 27 January 1998 requesting two cheques: one to pay stamp duty on the property to be transferred to the superannuation fund ($4,444.00) based on a valuation of $170,000 and a further cheque to pay the valuer’s fees of $168. The annexed diary notes of the client include notation of a discussion with the solicitor on 24 February 1998 in relation to the finalisation of documentation and the stamp duty issues. The next diary note indicates that on 4 May 1998 the solicitor advised the client that the stamp duty “on the Contract” would be $10.00 which we take to be reference to the duty on the superannuation transfer. The final annexure to the client’s affidavit is a letter of 16 July 1998 from the solicitor which in effect advises that the nominal duty of $10.00 is not payable and that duty of $5328.00 was payable. The client details a discussion with the solicitor on 29 January 1998 regarding payment of the stamp duty at ad valorem rates and the valuation fees. The copy of the letter of 27 January 1998 annexed to the client’s affidavit bears separate endorsements in relation to each of the two cheques requested in terms: “Will drop up”. The client was not called for cross-examination on his affidavit of 8 February 2000. No further material was put on in reply to the solicitor’s affidavit dealing with this matter sworn on 11 February 2000. The solicitor’s response was in terms that the client was adamant that the Transfer would attract nominal stamp duty of $10.00. The affidavit deposes to the solicitor not having access to the file in the matter and states:

“I researched this and spoke to Mr and Mrs Devine’s accountant to find that Mr Devine was in error and full ad valorem duty would be payable on the then current market value of the property. I do believe that I did request from Mr Devine the full amount of the stamp duty payable and that was not received. Any delay in firstly stamping the Transfer and then registering the Transfer were as a result of Mr Devine not wanting to pay two fees payable including the obtaining of a necessary valuation”.

44 The annexure of the letter of 27 January 1998 to the client’s affidavit clearly supports the request for payment of duty. The evidence before the Tribunal as to whether a stamp duty cheque was provided and returned is limited to particulars and not supported by the client’s affidavit except insofar as the notations “Will drop up” are concerned. The denial by the solicitor of the client’s willingness to pay stamp duty at ad valorem rates is quite clear.

45 The solicitor’s evidence in chief is confusing. It does not correspond with admitted evidence on documentation which is of assistance to him. It is clear that the stamp duty was requested and despite the note “Will drop up” it is not clear if and if so when the stamp duty was provided by the client. The solicitor’s explanation is that the client insisted on paying nominal duty and the solicitor’s approach to the Office of State Revenue to seek determination of the duty payable is consistent with that explanation. The client’s Affidavit deposes to the letters of 27 January and 7 May 1998 having been received by him but that the letter of 16 July 1998 was not received by him.

46 The solicitor’s letter of 16 July 1998 bears both a residential and a fax address. In cross-examination the solicitor confirmed that he had faxed the letter but did not know whether he had followed the matter up. The solicitor’s subsequent evidence about stamp duty penalty and his assertion that no penalty was payable as no documents had been signed further clouds the position. The state of the evidence is confused and clouded as far as this complaint is concerned. The onus is of course upon the Society to establish the grounds according to the civil standard and the Tribunal cannot be satisfied on the evidence as to what happened so as to form a judgment on the conduct of the solicitor. This complaint is accordingly dismissed.

GROUND 2(e) Kelwyn Connell – Failure to transfer file to new solicitor pursuant to authority in March 1998

47 This complaint is particularised as follows:

(a) In March 1998 the complainant instructed Catherine McKimm & Associates, Solicitors to take over the conduct of his property settlement and he signed an authority for that purpose.
(b) In March 1998 Catherine McKimm and Associates sent a signed authority to the solicitor and requested the transfer of the file.
(c) The Solicitor did not respond to that letter nor did he transfer the file.

48 In his reply the solicitor admits that “he failed to respond to an authority to release documents”. In his particulars he says:

“The Legal practitioner says that his failure to respond to an authority to release documents was an administrative oversight on the part of his office.”

49 In his affidavit the solicitor says:

“It would appear that my office failed to immediately respond to the authority as signed by Mr Connell and his brother in relation to many documents held on her behalf including updated Wills”.

50 The particulars are not evidence of the matters alleged. There is an admission, albeit a qualified admission from the solicitor. This is a complaint alleging professional misconduct which is the most serious complaint which can be made against a solicitor under the Act. The cross-examination of the solicitor on this issue (p115) has left the complaint in a situation where the Tribunal cannot, on the scant material before it, properly assess the conduct of the solicitor with any degree of comfort or certainty. This complaint is accordingly dismissed.

GROUND 2(f) Natasha Lawler

51 The Information alleges that the solicitor failed to act on the instructions of his client given in or about late 1996 to commence court proceedings under the Motor Accidents Act. Particulars detailed:

(i) In late 1996 the solicitor received instructions from the mother of Natasha Lawler (the complainant) to commence proceedings under the Motor Accidents Act in relation to injuries sustained by her daughter in a motor vehicle accident.
(ii) No claim under the Motor Accidents Act was commenced as at 24 October 1998.

52 In his reply the solicitor admits that he failed to act on instructions. He admits the particulars and says by virtue of his then psychiatric condition his failure was not knowing or intentional. While three affidavits were lodged by the clients in support of the Law Society’s case (Schumann, Martin and Malcolm Devine) there is no affidavit from Natasha Lawler or her mother and the only material in the Affidavit of Raymond Collins on behalf of the Law Society was the detailing of the complaint as detailed in the appropriate procedural resolution of the Society’s committee.

53 There was oral evidence from the solicitor in chief (Page 87) as follows:

Q. Is this a matter where you failed to commence proceedings after a motor accident?
A. I understood that I had commenced proceedings, in that statutory notice was given but it would appear that from what I have seen on file that with liability denied I didn’t go to the next step of filing a Statement of Claim, but I had certainly attended to matters on that.
Q. You had done some work?
A. Oh, yes.
Q. But you had not proceeded with the next step of filing the Statement of Claim?
A. Yes.
Q. Do you recall actually acting for Ms Lawler?
A. I can only recall receiving instructions actually not from her, from her parents. I can remember seeing photographs from the scene of the accident, which was in Sydney. I can remember discussing the difficulties with the claim. That is, in summary, the totality of my recollection.

54 The cross-examination on this matter was at page 115 of the transcript as follows:

Q. I take further to the matter of Natasha Lawler. That is, the complaint No. 1F and your affidavit in reply indicated that you admit the allegation but it is because of your medical condition at that time that you say that you did not follow those instructions. Is that correct?
A. Yes, with the qualification that I did commence or I did work on the matter as a result of those instructions.
Q. Yes, but in a period of approximately two years a claim wasn’t lodged, was it?
A. It would appear so.

55 There is some issue as to there being difficulties in the matter which have not been explored or explained. In the absence of evidence, ideally from the client and perhaps from the mother, perhaps access to the file and some effort to allow the Tribunal to properly assess this complaint which alleges professional misconduct the Tribunal finds again that it is faced with a situation of being unable to properly assess the evidence to make a finding on that evidence. This complaint, accordingly, is also dismissed.

GROUND 2(i) Stybuck Pty Limited:

The solicitor failed to take any or adequate steps to progress the registration of the lease on instructions from his client, Sybuck Pty Limited, during the period between August 1997 and November 1998

56 Particulars of complaint:

(i) In 1997 Stybuck Pty Limited, through its directors (the complainant) furnished instructions to the solicitor to act on its behalf in relation to a commercial lease of a property owned by the company
(ii) On 11 August 1997 the solicitor forwarded an original executed lease, together with a trust account cheque for stamp duty and registration fees and related documents (the documents) to his Sydney Law Stationers.
(iii) Shortly thereafter, the documents including the trust account cheques and the lease were returned to the solicitor together with requisitions from the Office of State Revenue which required the preparation and execution of a statutory declaration by the solicitor.
(iv) The solicitor did not reply to the requisitions and the lease remained unregistered.

57 In his reply the solicitor admits that he failed to finalise registration of the lease, admits the particulars and says that his failure to finalise registration of the commercial lease was “an administrative oversight on the part of his office”

58 In his affidavit the solicitor again admits failing to take adequate steps to obtain registration of the lease. His Affidavit goes on to say:

“Without the benefit of my file or a copy I believe that I did send the lease to my Sydney Law Stationers for registration. However I do not recall receiving any requisitions as alleged . If the documents were returned as alleged it would appear that they were merely filed in my client’s file and not brought to my attention”.

59 In his evidence under cross-examination the solicitor was asked at 115:

Q. And likewise the last two complaints numbers 2 (I) and 2(j), again you use the expression ‘it’s an administrative oversight?
A. Yes, my conveyancing clerk had not done it and I am now aware that she didn’t.
and later on page 116:-
Q. The period of time over which that oversight occurred was approximately 15 months?
A. It would appear so.

60 In his evidence in chief is the following material was adduced (commencing at page 87):

Q. You said in your affidavit, in effect, you just overlooked the documents; they were left in the file?
A. Yes, it appears that the lease was sent to the Stamp Duties Office for stamping. A requisition was raised. Unfortunately my staff had left that letter in the file and that requisition was not answered, but the lease was sent off for registration.
Q. The requisition was then raised?
A. The requisition wasn’t answered.

61 On the basis of the evidence before it, it is clear that the solicitor is responsible for the matter and that he did not adequately supervise it. The Tribunal does not know from the evidence what measures were in place in the solicitor’s practice to ensure that correspondence was not left unanswered and documents left unattended in the file. There is a clear breakdown in the management of the matter for which the solicitor, who was the person handling the matter must assume responsibility. On the limited evidence in front of it, the Tribunal does not feel that a finding of professional misconduct is warranted but that the failure of the solicitor to detect what, on the evidence, was an oversight for that period of time does constitute unsatisfactory professional conduct and a finding to that effect is accordingly made.

GROUND 2 (j) Mr and Mrs Lindberg:

The solicitor failed to take adequate steps to progress the transfer of realty into the names of his clients, Mr and Mrs. Lindberg, during the period between May 1994 and October 1998

62 This complaint asserted professional misconduct involving gross negligence and delay.

63 Particulars of complaint:

(i) In either late 1993 or early 1994, Mr and Mrs Lindberg (the complainants) instructed the solicitor to act on their behalf in the purchase by them of an aircraft hanger at Walgett airport (the purchase).
(ii) After settlement of the purchase on 16 May 1994, the solicitor forwarded the original Certificate of Title, Transfer and Notice of Sale (the documents) to his Sydney Law Stationers for registration. The solicitor enclosed a trust account cheque for $50 being the registration fee.
(iii) The documents were returned on several occasions to the solicitors with requisitions by the Land Titles Office.
(iv) As at 24 October 1998 the solicitor did not reply to the requisitions and the registration of the Transfer remained incomplete.

64 In his reply the solicitor admits the complaint and the particulars and says “that his failure to finalise the transfer of title was an administrative oversight on the part of his office”.

65 No Affidavit from either of the clients and the affidavit of John Raymond Collins and supporting information does not contain any evidence relative to the matter, which is only referred to in the documentation in the resolution of the Society and the referred complaint from Legal Services Commissioner.

66 The solicitor’s affidavit was read so we have that evidence before us. The relevant paragraph 3.15 reads:

“I admit that I failed to take adequate steps to finalise registration of a Real Property Act Transfer into the names of my client’s Mr & Mrs Lindberg as set out in paragraph 7 (subparagraph 15), which relates to Ground 2j of the Information and again note that no such complaint has been lodged by my client with either the Law Society of New South Wales or the Office of the Legal Services Commissioner. Without the benefit of my file or a copy I believe that I did attempt to obtain registration of the Real Property Act Transfer however the Land Titles Office did raise a requisition that did require the vendor’s solicitor to answer. At this time however the vendor’s solicitor, a sole practitioner from Walgett was unfortunately tragically killed in a light aircraft accident. It would appear that the documents were overlooked by my conveyancing staff and left in the file with the requisition raised still unanswered”.

67 The solicitor gave evidence on this matter at pages 88 and 89 and then on cross-examination at page 115 and 116. The evidence makes no reference to particular 3 relating to the documents being returned on several occasions to the solicitor “with requisitions by the Land Titles Office.” When this occurred and what steps the solicitor took, we do not know. It is clear from the evidence that the matter remained unresolved for four years and that is an extraordinarily long period of time. From the particulars there appears to be more to the matter than the requisition simply being left unanswered in the file. The evidence is simply unsatisfactory and it is not in a condition where the Tribunal can comfortably make a finding, particularly a finding adverse to the solicitor which could jeopardise his right to practise. The delay is totally unacceptable but the evidence raises uncertainty which unfortunately has not been addressed to the Tribunal’s satisfaction. These issues may have been resolved with the production of some documents and, more particularly, the file but in the circumstances on the state of the evidence, the appropriate course is for the Tribunal to dismiss this ground.

GROUND 3 Tammy Martin:

The solicitor wilfully breached Section 61 of the Legal Profession Act 1987 in that he failed to return $100.00 to Ms Tammy Martin in accordance with her direction

68 Particulars of complaint:

(i) On 28 July 1998, Ms Tammy Martin (the complainant) instructed the solicitor to register a business name styled ‘Woolgoolga Property Management’. At that conference the complainant gave the solicitor $100.00 in cash on account of registration fees.
(ii) By letter dated 20 August 1998 the complainant wrote to the solicitor and advised that because of his delays, she had personally obtained a Certificate of Registration of a business name for ‘Woolgoolga Property Management’ and she asked for her fees of $100.00 to be returned to her. The solicitor did not reply to this letter.
(iii) The fees of $100.00 were not returned to the complainant by the solicitor.
In the particulars there was no sub-paragraph (iii) and sub paragraph (iv) was withdrawn by the Law Society in the course of the hearing (transcript page 58).

69 The complainant Tammy Martin swore an affidavit on 3 February 2000 in which she said:

(1) On 28 July 1998 I paid to my solicitor Peter Musgrave the sum of $100.00 in cash in order for him to register a business name. I did not receive a receipt.
(2) On 20 August 1998 I forwarded to Peter Musgrave a letter a copy of which is annexed hereto and marked with the letter “A”. I received no reply to the said letter.
(3) I am claiming compensation in the sum of $100.00.”

70 The annexure was a letter dated 20 August 1998 which advised that the deponent had registered the business name at the Department of Fair Trading in Coffs Harbour, requested a receipt for the payment of $100.00 made on 28 July 1998 or alternatively a refund of the payment. The letter advised that the business name had been formally registered. The letter went on to address another matter that the deponent had discussed with the solicitor within the last few days of her writing requesting that a warning letter be sent to another real estate agent.

71 The solicitor’s affidavit in reply of 11 February 2000 annexes a copy of the solicitor’s letter of 30 July to the Department of Fair Trading attaching registration application and cheque in payment of the fee of $100.00 (PJM12). There is a further annexure (PJM13) being a letter dated 21 August from the Department of Fair Trading advising the application could not be approved as the name was already registered. The letter included the statement “as fees are not payable, arrangements have been made for a refund of any moneys paid in respect of this application”. On the face of that letter the solicitor was entitled to expect that the Department would refund the fee of $100.00. Indeed, it appears that subsequently an application was made for the refund. The client appears on this evidence to have hired the solicitor to do a task, paid him the money to cover the out of pocket expense and then proceeded to perform the work herself, all within a time sequence of about four weeks. All the circumstances are relevant in that, not only is a breach of Section 61 alleged but the client is claiming compensation of $100.00 and the sixth ground alleges unsatisfactory professional conduct in that the solicitor failed to respond to the client’s letter requesting that refund.

72 In relation to the compensation claim by Tammy Martin that claim is dismissed on the basis that the moneys were paid to the solicitor for a purpose and expended by him in accordance with those instructions. The solicitor’s application for registration of the name was made within two days of instructions and the payment properly made.

73 The alleged breach of Section 61(I)(b) is the failure some time after 20 August 1998 when the solicitor received the letter from the client to refund to her the sum of $100.00. The evidence on that is quite clear, namely that $100.00 had been paid to the Department of Fair Trading as evidenced by the copy of the solicitor’s letter of 30 July and the Departmental letter of 21 August 1998. There is no evidence, nor indeed any allegation, of any other failure to comply with S.61 or other Trust Account requirements. This complaint is not supported by the evidence and it is dismissed.

Complaint by Tammy Martin (Complaint 6):

The solicitor failed to respond to the complainant’s letter of 20 August 1998 requesting a return of $100.00 paid to him for registration fees

74 The solicitor admits that he did not respond to the client’s letter of 20 August. Having considered the matter, the Tribunal is of the view that, bearing in mind the course of conduct of the client and the short period involved, and the other evidence as to the declining health of the solicitor in the period up to his disappearance on 25 October 1998, it is not appropriate for the Tribunal to treat this omission over a short period of time when the solicitor was clearly unwell as constituting in the circumstances unsatisfactory professional conduct.

GROUND 4 Professional Misconduct is alleged on the basis that the solicitor falsely represented that he was a solicitor named Steven Miller

75 This representation is alleged to have been made to employment agencies and to a firm of patent attorneys in Brisbane.

76 The events particularised are detailed as having occurred on 2, 3 and 4 November 1998 during the period when the solicitor disappeared from Coffs Harbour. The ground is dependent upon wilful or intentional acts or omissions by the solicitor. The Tribunal has found that on the medical evidence before it that during the period from 24 October 1998 to 5 November 1998 the solicitor was suffering from a dissociative fugue. The medical evidence already referred to satisfies the Tribunal on the balance of probabilities that the solicitor suffered from that condition at that time. He showed at that time the major characteristics of this illness referred to by the expert witnesses with loss of personal identity, assumption of new identity and moving to take up a new occupation and life. The medical evidence satisfies the Tribunal that the solicitor is not responsible for the false representations he made during that period so that that wilfulness or intent necessary to establish that fourth ground are lacking and the complaint is also dismissed.

Other complaints:

77 There is no evidence before the Tribunal in relation to the fifth complaint and this is not raised in submissions. There being no evidence before the Tribunal, this complaint and the remaining complaints numbers 1 (a), 1(c), the first part of 2 (a), the first part of 2(e), 2(g) and 2(h) are also dismissed.

78 At the conclusion of the evidence, directions were given for the provision of written submissions. The Tribunal appreciated the assistance and effort put subsequently into the preparation of those submissions by the two legal representatives.

79 The hearing of this information commenced on the same day as the conclusion of the giving of evidence and making of submissions in a separate information brought by the Legal Services Commissioner against the solicitor. In both matters, following the request of Counsel in the Legal Services Commissioner’s matter, it was arranged that the Tribunal would prepare its findings on the complaints in both matters and then, in the event that adverse findings were made against the solicitor, the matters would be listed for delivery of those findings and if findings adverse to the solicitor were made for the hearing of argument as to penalty.

Outcome

80 The matter now stands adjourned part heard pending relisting on a date to be fixed by the Registrar for further submissions as to orders to be made. It was not possible as had originally intended for the findings to be handed down and submissions on the outcome to be made on the same day as all the relevant parties could not be brought together at the time the findings were completed.