Law Society of New South Wales v Roberts

[2003] NSWADT 101

CITATION:	Law Society of New South Wales -v- Roberts [2003] NSWADT 101
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Dai Peter Roberts
FILE NUMBER:	012037; 022013
HEARING DATES:	14/10/2002, 15/10/2002
SUBMISSIONS CLOSED:	11/11/2002
DATE OF DECISION:	05/13/2003
BEFORE:	Currie JS - Judicial Member; Foster GF - Judicial Member; Hoareau D - Member
APPLICATION:	Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to account - Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - fail to keep client adequately advised - Professional Misconduct - fail to meet undertaking of Law Society/Bar Association/LSC - Professional Misconduct - fail to pay counsel's fees - Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - misappropriate trust moneys/moneys - Professional Misconduct - mislead client - Professional Misconduct - mislead Court/Tribunal - Unsatisfactory Professional Conduct - delay - Unsatisfactory Professional Conduct - fail to respond to client - Unsatisfactory Professional Conduct - mislead Law Society/Bar Association/LSC - Unsatisfactory Professional Conduct - fail to safely secure documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Law Society of NSW v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Walsh - BC9706885 - NSWCA - 15/12/1997
REPRESENTATION:	APPLICANT I M Wales SC, barrister RESPONDENT J W Conomos, barrister
ORDERS:	1. The Practitioner's name be removed from the Roll; 2. The Practitioner pay the costs of the Informant in proceedings number 012037 and 022013; 3. The Practitioner pay to Abbott Pardy & Jenkins, Solicitors, as compensation, the amount of $5,068.35.

1 These proceedings, numbered 012037 and 022013 in the Administrative Decisions Tribunal, Legal Services Division, were commenced by the Council of the Law Society of New South Wales against Mr Dai Peter Roberts, a solicitor, by Informations filed on 29 November 2001 and 23 April 2002, respectively.

2 Both Informations relate to the conduct of Mr Roberts ("the Practitioner") in the course of his practice as a solicitor.

3 The Information in proceedings numbered 012037 involves twelve separate counts of alleged professional misconduct in relation to various clients of the Practitioner, together with a separate allegation of unsatisfactory professional conduct in relation to another client. The Information in proceedings numbered 022013 concern an allegation of professional misconduct, resulting from an alleged wilful breach of section 61 of the Legal Profession Act 1987 in relation to another client.

Issues for Determination

4 The issues for determination are as follows. Firstly, in respect of each of the allegations of professional misconduct and unsatisfactory professional conduct in each of the counts constituting proceedings numbered 012037, whether the allegation is made out so that the Practitioner has been guilty of professional misconduct or unsatisfactory professional conduct. Secondly, in the proceedings numbered 022013, whether the allegation of professional misconduct is made out; and thirdly, what orders are appropriate.

Determination of these issues

5 The Tribunal has determined these issues as follows. The reasons for the Tribunal's findings in each of these matters is set out below.

6 In relation to the allegations of professional misconduct and unsatisfactory professional conduct in each of the counts constituting proceedings numbered 012037, the Tribunal finds the Practitioner guilty of professional misconduct in relation to complaints numbered 1, 2, 3, 4, 7, 8, 9 and 11, as set out below.

7 In addition, in relation to complaint 4, Abbot Pardy & Jenkins, the Tribunal makes the compensation order sought by the Law Society, so that the Practitioner will be ordered to pay Abbott, Pardy & Jenkins, Solicitors, as compensation, the amount of $5,068.35.

8 Further in relation to proceedings numbered 012037, in relation to complaints numbered 5, 6, 7, 10 and 12, and in relation to the separate complaint of Peter Hall, the Tribunal finds that the Practitioner is guilty of unsatisfactory professional conduct.

9 In light of these findings, and for the reasons discussed at paragraphs 93 to 103 below, the Tribunal believes that the appropriate penalty is for the Practitioner's name to be removed from the Roll and the Tribunal so orders. The Practitioner will pay the costs of the Informant in both proceedings and will pay compensation to Abbott, Pardy & Jenkins in the amount of $5,068.35.

REASONS FOR THESE ORDERS
Format of these reasons

10 These reasons for determination will commence with a discussion of each of the counts in proceedings numbered 012037; and the Tribunal's finding in respect of each such count, they will then deal with the counts in proceedings numbered 022013, and the Tribunal's finding in respect of each such count, and they will conclude with the Tribunal's reasons for the orders as to penalty.

Proceedings number 012037
Complaint 1: Mika Ikonen

11 The allegation in this count was that the Practitioner was guilty of professional misconduct in his handling of a motor vehicle accident claim on behalf of Mr Ikonen. In particular it is alleged that there was considerable delay by the Practitioner in attending to the matter despite having been paid by the client monies on account of filing fees. There is also an allegation that the Practitioner failed to comply with a s152(2) notice issued by the Council of the Law Society.

12 It seems clear that there was considerable delay between March 1997 when the solicitor was first instructed to act, through to the lodgement of a complaint by the client on 9 June 1998. The Tribunal notes that it was not until 10 December 1998 that the Practitioner actually commenced proceedings by filing a Statement of Claim in the Local Court.

13 In his affidavit of 27 May 2002, the Practitioner briefly outlines his conduct of the matter, and under cross examination the Practitioner provided further details.

14 In relation to the part of the complaint concerning the s152(2) notice, the Practitioner says that at the time of receiving this notice he had arranged to move office and had packed files away.

15 The Tribunal is satisfied that the Practitioner's delay in dealing promptly and professionally with this matter involved a substantial failure to reach the reasonable expected standard of competence and diligence. That constitutes professional misconduct by the Practitioner.

16 In relation to the alleged failure to comply with the s152(2) notice, the Tribunal notes firstly that there would have been no need for such a notice if the Practitioner had dealt promptly with the allegations raised in the Law Society's correspondence, commencing with forwarding the complaint of 5 August 1998. There is a partial excuse for some delay in responding to the Law Society's letter of 15 December 1998 requiring the production of the file, on the basis that the Practitioner was seeing his solicitor to obtain advice on his position, in early January 1999. However, on 18 February 1999, that solicitor sent a letter to the Law Society indicating that he was unable to advise when the requested material would be furnished and in fact it was not furnished until 24 March 1999.

17 The Tribunal finds that the Practitioner, without reasonable excuse, failed to comply with the s152(2) notice. By operation of subsection 152(4) that conduct constitutes professional misconduct.

Complaint 2: Anthony Spencer re Ben Spencer (a minor)

18 These allegations relate to the Practitioner's handling of a claim by Mr Ben Spencer, who was then a minor, resulting from an accident on 30 January 1993, as a result of which he required amputation of part of his ring finger. It is alleged that the Practitioner was guilty of gross negligence and delay and, again, that there was failure to comply with a s152(2) notice without reasonable excuse. It is also claimed, that the Practitioner attempted to mislead the Law Society and that the Practitioner misappropriated trust money.

19 In this matter instructions were furnished to the Practitioner by Ben Spencer's father, Anthony Spencer. The matter appears to have moved slowly from the date of instructions (which we take it was some time fairly shortly after the accident, in January 1993) until, January 1996. The Tribunal notes that an initial advice on evidence was received from Counsel on 15 April 1993, and that in the ensuing months in 1993 Anthony Spencer provided the Practitioner with $300 and signed certain medical authorities. However, it was not until 30 January 1996 that the solicitor arranged for a cheque to be drawn in favour of the District Court, presumably for filing fees. The delays experienced by Mr Anthony Spencer were reflected in his letter to the Practitioner dated 2 June 1997 in which he says in part:

"As it has now been four and a half years since I first visited you, I feel something should be forthcoming with this case".

20 Mr Spencer made those remarks because, on his account as set out in that letter, he knew nothing as to whether a case had been prepared, or lodged in Court, or which Court it had been lodged in, or how the matter was progressing to any possible settlement.

21 Again, as in the first count, there are allegations of failure to deal with Law Society enquiries promptly. In late June 1998 the Law Society received a complaint from the Legal Services Commissioner which, on 6 July 1998 the Law Society forwarded to the Practitioner. No response had been received by 29 September 1998, when the Law Society passed a resolution pursuant to s152 of the Legal Profession Act, requiring a verified response from the Practitioner. In this regard, the Practitioner was required to provide a statutory declaration by 20 November 1998. The Practitioner did not respond by that date, and it was not until 25 November 1998 that he forwarded a letter to the Society indicating that he had been unable to comply with the notice by reason of moving office.

22 There followed further correspondence between the Society and the solicitor for the Practitioner, and it was not until 24 March 1999 that the Practitioner made a statutory declaration in response to the s152 notice of 29 September 1998.

23 In paragraph 9 of his statutory declaration of 24 March 1999 the Practitioner said:

"The proceedings have been on foot in the District Court for some considerable time"
and
"A number of appointments were made for Mr Spencer to call at my office in order that I could advise him of progress. He failed to keep some of those appointments…"

24 Those statements in the statutory declaration are alleged by the Law Society to be untrue or misleading.

25 The Tribunal took careful note of how the Practitioner gave evidence in person in relation to these allegations and in particular under cross examination.

26 The Tribunal has concluded that the Practitioner's statutory declaration was misleading in respect of the two statements quoted above.

27 Further in relation to this client, the Law Society alleges that the Practitioner has been guilty of misappropriating trust money. This allegation is based on the exchange of correspondence in August and October 1999, carrying through to a letter from the solicitor for the Practitioner of 22 August 2000, which appears to establish that the cheque drawn by the Practitioner in favour of the District Court on 30 January 1996 had in fact never been presented.

28 Although the Tribunal regards the dealing with this cheque as further indication of a delay, and failure to provide diligent attention, by the Practitioner, the Law Society concedes that this complaint of misappropriation is not supported by the evidence.

29 However, in relation to this client, the Tribunal finds that the Practitioner has been guilty of gross delay amounting to unsatisfactory professional conduct, and that that conduct involves a substantial and consistent failure to reach reasonable standards of competence and diligence. Accordingly the Practitioner is guilty of professional misconduct in relation to this matter.

30 The Tribunal also finds that the Practitioner, without reasonable excuse, failed to comply with the required requirement of the Law Society pursuant to s152 of the Legal Profession Act. By operation of subsection 152(4), the Practitioner is thereby guilty of professional misconduct.

Complaint 3: Laurence Albert Slavik (complaint by State Debt Recovery Office)

31 The allegation in this count relates to the Practitioner's treatment of a cheque in the sum of $11,050 from the Legal Aid Commission. That cheque represented the Practitioner's claim for his costs from Legal Aid in relation to acting for Mr Slavik in a criminal trial.

32 On 28 July 1998 the Law Society forwarded to the Practitioner a letter of complaint from the State Debt Recovery Office, relating to the Practitioner's alleged failure to pay transcript fees out of the cheque received for $11,050.

33 On 10 August 1998 the Practitioner said in a letter to the Society that he was not aware of any fees having been paid by the Legal Aid Commission in relation to the matter of Slavik. It is alleged, and the Tribunal finds, that that statement was misleading. The statement was clarified in a letter dated 23 August 2000 from the solicitor for the Practitioner which conceded that the cheque for $11,050 received from the Legal Aid Commission included the sum of $346 in respect of transcript fees in relation to the Slavik matter.

34 In his affidavit filed on 10 June 2002, the Practitioner said that the Slavik matter was principally under the control of Mr Steven Doran, a consultant of the Practitioner's firm and that he, the Practitioner, was not specifically aware that a cheque had been received from the Legal Aid Commission. The Practitioner says that he was not attempting to mislead the Law Society in his letter of 10 August 1998.

35 The Practitioner was asked in cross-examination whether he looked at the Slavik file before asserting in his letter of 10 August 1998, paragraph 2, that he was not aware of any fees having been paid by the Legal Aid Commission. The Practitioner replied that he did not think that he had looked at the file. Further, in cross examination the Practitioner made it clear that a clerk had some responsibility for the running of this matter. The fact remains, of course, that the Practitioner was the principal of his firm, and was clearly the respondent to the Law Society's complaint. In those circumstances, he should have taken very great care before telling the Law Society that he was "not aware of any fees having been paid by the Legal Aid Commission". The Tribunal found the Practitioner's testimony under cross-examination to be unconvincing and inconsistent.

36 The Tribunal finds that the evidence establishes that the Practitioner attempted to mislead the Law Society in the manner alleged.

37 The Tribunal finds that the Practitioner breached section 61 of the Legal Profession Act. As a matter of law, the Practitioner was obliged to deposit the cheque for $11,050 into his trust account. This obligation follows from the terms of subsection 61(1), as the funds were "received on behalf of another person".

38 The Tribunal also finds that the Practitioner misappropriated trust money because, even if the Practitioner's contention that the cheque was placed into the general account without his knowledge, is accepted, the obligations imposed by section 61 are continuing. The evidence clearly establishes that the Practitioner became aware of what had occurred by July 1998. The Tribunal finds that from this date on, the Practitioner knew that funds had been paid into his general account which should not have been so paid, and from that point on his deliberate retention of those funds was a wilful breach of section 61, and in that sense, a misappropriation, and, by operation of s.61(7), professional misconduct.

Complaint 4: Abbott Pardy & Jenkins

39 This count involves an alleged breach of an undertaking by the Practitioner to pay the fees of his Armidale agents, Messrs Abbott Pardy & Jenkins, being costs and disbursements in the sum of $2,320, and counsel's fees in the sum of $3,000.

40 The Practitioner in a letter dated 12 March 1997 undertook to pay the reasonable fees of Abbott Pardy & Jenkins. It is alleged that the Practitioner is guilty of professional misconduct in breaching this undertaking and also in attempting to mislead the Law Society by reason of his statements to Mr Collins, the manager of the Professional Standards Division of the Law Society. It is alleged that on 22 July 1998, during the course of a telephone conversation with Mr Collins, the Practitioner, referring to the monies due to Abbott Pardy & Jenkins, said words to the effect: "I will fix that up tomorrow too" and "That’s okay, they will all be fixed tomorrow and I will let you know".

41 Subsequently the solicitor for the Practitioner, in a letter to the Law Society of 24 March 1999 conceded that the monies had not been paid in full but explained that arrangements for payment by instalments had been made.

42 Significantly, the Practitioner conceded in cross-examination that when he spoke to Mr Collins he was not in a position then to pay Abbott Pardy & Jenkins and had no particular reason to believe that funds would arrive on the following day.

43 The Practitioner concedes, in his affidavit filed on 12 June 2002, in paragraph 17, that his failure to pay this money was a breach of his undertaking.

44 The Tribunal finds the Practitioner is guilty of professional misconduct by reason of his breach of this undertaking and his attempt to mislead the Law Society. The Tribunal will also grant the compensation order sought by the Law Society, so that the Practitioner will be ordered to pay Abbott, Pardy & Jenkins, Solicitors, the sum of $5,068.35.

Complaint 5: Sean Rafferty

45 It is alleged that the Practitioner was guilty of professional misconduct by reason of gross delay in the handling of this matter in which he acted for Mr Rafferty in a motor vehicle/personal injury claim.

46 The evidence reveals that there was a considerable period between the solicitor receiving instructions, on 31 January 1994, and initial correspondence with the insurer, apparently on 22 March 1995.

47 The matter, as revealed by the apparent course of correspondence between the Practitioner and the insurers clearly proceeded very slowly. It is apparent that the Practitioner briefed Mr Ward of counsel in or about March 1996. The Tribunal notes that as at 5 June 1997 (that is, three and a half years from the date of the accident and well over three years from the date of the Practitioner's instructions), the Practitioner had not filed a statement of claim in respect of the accident as required by section 52 of the then Motor Accidents Act, 1998. The critical three year limitation period was allowed to expire. In the submissions made on his behalf, the Practitioner does concede that he did not specifically indicate to the client the three year limitation period appropriate to this claim. In his affidavit filed on 12 June 2002, the Practitioner denied being guilty of gross delay. In cross-examination the Practitioner indicated that he "left everything to Mr Ward" and that he was content to allow counsel to do things normally done by solicitors.

48 The Tribunal finds that the solicitor is guilty of unsatisfactory professional conduct by reason of the delays which occurred in this matter, but believes in all the circumstances that the delays are not of such a nature as to constitute professional misconduct.

Complaint 6: Stephen Navin

49 In this count it is alleged that the Practitioner was guilty of professional misconduct in that he failed to comply with court orders and attempted to mislead the Law Society. This matter again involved the Practitioner acting as solicitor in respect of a motor vehicle personal injury claim.

50 It is apparent from the evidence, and the Tribunal finds, that there was very substantial delay between the time of the Practitioner receiving instructions, the filing of a statement of claim, the preparation of a praecipe for trial, and in the general conduct of the matter before the Assistant Registrar of the Sydney District Court.

51 The Tribunal notes that on 14 May 1998 Mr Ward of counsel forwarded a letter to the solicitor which detailed the deficiencies in the preparation of the case, most of which appear to have arisen from delay.

52 It is also apparent to the Tribunal that the Practitioner was aware from correspondence with counsel that the matter had been referred to the Duty Judge to show cause, that is, to show cause why the matter should not be struck out. The Practitioner has conceded that his client's wish was that the matter proceed; so that implicitly his instructions were to file an affidavit showing cause. This he failed to do. In his affidavit filed in these proceedings, the Practitioner concedes that he should have had an affidavit prepared for that date.

53 In his evidence before the Tribunal and in the submissions made on his behalf, the Practitioner contended that he understood that his affidavit sworn on 30 July 1998 satisfied the points required in the orders of Judge Garling made on 16 July 1998. The Practitioner contended continuously in relation to this matter that he relied on the advice of counsel.

54 In all the circumstances, the Tribunal is not prepared to find that the Practitioner failed to comply with court orders or attempted to mislead the Law Society. Accordingly the allegation of professional misconduct is not made out. However the Tribunal finds the Practitioner guilty of unsatisfactory professional conduct.

Complaint 7: Cindy Spika

55 In this matter the Practitioner again acted for the plaintiff in a motor vehicle personal injury claim. It is alleged that the Practitioner was guilty of professional misconduct in his handling of the matter by reason of gross negligence and delay, misleading the Registrar of the Court of Appeal, misleading the Parramatta District Court, failing to release his file and failing to respond to telephone calls or to respond substantively to correspondence.

56 The evidence reveals that there was substantial delay in the processing of Ms Spika's claim. The Practitioner relies on the fact that most of the work on the file was done by counsel and that staff at his office merely followed counsel's advice in processing the matter. The Tribunal finds that this course of action amounts to unsatisfactory professional conduct but is not satisfied that the evidence demonstrates any professional misconduct in this regard.

57 As to the claim of misleading the Registrar of the Court of Appeal, much turns on the accuracy of the transcript of proceedings. The Practitioner concedes that the transcript is a correct transcription of the short hand reporters notes but he contends that the reporter misheard him and that the words "I wasn't aware" should read "I was aware". Although it was submitted by the Law Society that this explanation is implausible, the Tribunal is prepared to accept the Practitioner's contentions in this regard.

58 The next ground of complaint involved the Practitioner allegedly misleading the Parramatta District Court. The Practitioner's evidence under cross-examination was most unsatisfactory in this regard. The Practitioner wavered as to the reason why the statement was made in the letter to "Leanne" on 23 February 1998 that monies had been received when in fact no monies had been received. Indeed, the Practitioner changed his contention in relation to these allegations under cross-examination, by denying that he was responsible personally for this letter: a contention which had not previously been raised by the Practitioner. This letter is not the subject of a complaint. However, the Practitioner's admission that the letter was deliberately false, supports the Law Society's contention that the letter to the transcript section of the Parramatta District Court was also deliberately false and written for the same reason: to provide a basis of a claim for urgency. The Tribunal does not accept the Practitioner's explanation that the letter may have been written without his knowledge. The Tribunal finds that the solicitor is guilty of professional misconduct in attempting to mislead the Parramatta District Court.

59 The Tribunal also finds that the Practitioner failed to release his file relating to the third party claim of Ms Spika and that he failed to respond to various telephone calls and to correspondence as described in paragraphs 15 – 25 of the Information. In respect of these matters the Tribunal finds that the solicitor is guilty of unsatisfactory professional conduct, but the conduct does not in the Tribunal's opinion amount to professional misconduct.

Complaint 8: Legal Services Commissioner re Cindy Spika

60 This is a separate ground of complaint from Complaint 7. This complaint is to the effect that the Practitioner failed without good cause to comply with a section 152 notice issued by the Legal Services Commissioner on 16 July 1999.

61 The Practitioner admits that he failed to comply with a notice issued under section 152 of the Legal Profession Act, and the Tribunal finds that there was no reasonable excuse for so doing. By operation of subsection 152(4) of the Act that conduct constitutes professional misconduct.

Complaint 9: John Rizk

62 The allegation is that the Practitioner failed to comply with the notice issued to him by the Law Society under section 152 of the Legal Profession Act. Paragraph 32 of the Practitioner's affidavit filed on 12 June 2002, the Practitioner admits that he failed to comply with the notice but explains his actions in terms of a significant number of personal matters which required his attention at the time, including the termination of a number of employees.

63 The Tribunal finds that the Practitioner was guilty of failing to comply with the section 152 notice, without reasonable excuse. By operation of subsection 152(4), this conduct constitutes professional misconduct.

Complaint 10: John Edward Lewis re Craig Lewis

64 In this matter the Practitioner was instructed by John Edward Lewis to act on behalf of his son Craig Lewis who was involved in an accident at Liverpool High School on 30 January 1996, at which time he was a minor. It is alleged that the Practitioner is guilty of professional misconduct in that he neglected to reply to correspondence from Messrs HC Stathis & Co and delayed in releasing his file to that firm when Mr John Edward Lewis indicated that he wished to change solicitors and to instruct HC Stathis & Co.

65 HC Stathis & Co sent a letter to the Practitioner on 23 May 2000 requesting the Practitioner to forward to them all files relating to Craig Lewis and an account of monies received by the Practitioner on account of disbursements.

66 In his written submissions the Practitioner does admit that there was delay but says that the file was one which was not able to be forwarded on at the time required and that some time did elapse before the file came back into the possession of the Practitioner, and it was then forwarded to HC Stathis & Co. In his affidavit filed on 12 June 2002, at paragraph 34, the Practitioner explains that following receipt of the request for delivery of the file to HC Stathis & Co, some time elapsed before it was discovered that the relevant files were in the possession of a former employee of the Practitioner, Mrs Blanchett.

67 Although the Tribunal is dissatisfied with the delay in responding to the Law Society and in relation to the file generally, the Tribunal does not believe that this delay, in all the circumstances, amounts to professional misconduct by the Practitioner. However the Tribunal finds the Practitioner guilty of unsatisfactory professional conduct.

Complaint 11: Surinder Singh Banga

68 In this count it is alleged that the Practitioner was guilty of profession misconduct by reason of gross negligence and delay and in misleading his client.

69 The Practitioner was instructed by Mr Banga to act in respect of a Victim's Compensation Claim following an assault on Mr Banga and his wife on 21 April 1997.

70 Mr Navraj Singh Banga, the son of Mr Banga, by affidavit sworn on 31 August 2001 and filed in the proceedings, gives a clear account of a conversation he witnessed between the Practitioner and his father on 25 March 1998. At that time Mr Navraj Banga interpreted for his father. According to Mr Navraj Banga, the Practitioner told him that his father's Victim's Compensation Claim was proceeding and that the Practitioner would send a copy of the application when the lady looking after the case returned to work. The Practitioner chose not to cross examine either Surinder Banga or Navraj Banga. He agreed in cross examination that he was aware of the consequences of that decision, so far as the usual rules of reception of evidence are concerned.

71 The Practitioner has not satisfactorily explained conversation on that day and says in his submissions that he "relies on his evidence". In the Practitioner's affidavit filed on 12 June 2002, at paragraphs 36 to 38, he denies that he misled the client.

72 The Tribunal accepts the evidence of Mr Navraj Banga and finds that the Practitioner misled his client and is accordingly guilty of professional misconduct.

73 The matter appears to have been handled very poorly by the Practitioner and the two year limitation period was allowed to expire. On 23 May 2000 a magistrate, on appeal to the Victim's Compensation Tribunal, confirmed the determination of a Compensation Assessor, refusing the client leave to lodge the application outside the 2 year limitation period. The matter was clearly under the control of the Practitioner. Accordingly the Tribunal finds the Practitioner has been guilty of gross delay involving a substantial failure to reach the reasonable expected standard of competence and diligence. That constitutes professional misconduct by the Practitioner.

Complaint 12: Stephen Muscat

74 This count involves an allegation that the Practitioner was guilty of professional misconduct in acting on behalf of Mr Muscat in a Victim's Compensation Claim, by reason of failing to safely secure medical and hospital records, police report, medication receipts and photographs delivered to him, and his delay in handling the matter.

75 There were initial difficulties in arranging filing of the necessary claims for victims compensation and it appears that in 2 instances the application for compensation was not received by the Victims Compensation Tribunal. Thereafter, in March 2000 the client consulted Mr Waldersee of counsel to act on his behalf. It is alleged that the Practitioner did not reply to requests from Mr Waldersee for the client's file to be sent to him.

76 It is alleged that when the file was eventually made available certain key documents were missing from the file. Then on 23 October 2000 the Victim's Compensation Tribunal declined to make an interim award of compensation based on the absence of the medical evidence, which some of the material missing from the file when collected from the Practitioner.

77 The Practitioner says that he has no recollection of ever having received the missing items. He indicates that he has undertaken a thorough search of his office. He also denies that he has been guilty of any delay in relation to the matter.

78 The Tribunal finds that the Practitioner is not guilty of professional misconduct, but is guilty of unsatisfactory professional conduct.

Complaint 1: Peter Hall

79 In this matter, Mr Hall instructed the Practitioner to act in respect of a wrongful dismissal from employment claim. It is alleged that the Practitioner is guilty of unsatisfactory professional conduct in failing to inform Mr Hall of the 21 day time limit for filing a claim, of failing to keep Mr Hall informed of the progress of the matter, of failing to communicate with Mr Hall, in delaying supplying certain statements to Mr Hall, and in failing to do anything to progress Mr Hall's claim except serve the original claim form.

80 It is alleged that the client spoke to the Practitioner in attending his office on 1 September 1999, and was informed by the Practitioner that he would be in contact with the client in "about 1 week".

81 In relation to informing the client of the 21 day time limit, the Practitioner's response in paragraph 42 of his affidavit filed on 12 June 2002 is highly unsatisfactory and lacks candour. He says that he does not admit nor does he deny that Mr Hall may not have been informed of the time limit. That sort of response to a serious complaint is not viewed favourably by the Tribunal. The Practitioner annexes to that affidavit as Annexure "L" a statutory declaration made by him on 7 September 2000. Essentially the Practitioner relies on the fact that Mr Marr of counsel had been briefed in the matter and that he was relying on Mr Marr to progress the matter satisfactorily. However, the Tribunal has not seen anything which explains satisfactorily the failure of the Practitioner to inform Mr Hall of the 21 day time limit. It is also apparent that the Practitioner has been guilty of delay and failure to correspond adequately with his client and keep his client informed of progress of the matter.

82 Accordingly, the Tribunal finds that the Practitioner is guilty of unsatisfactory professional conduct.

Proceedings number 022013

83 The Information filed in these proceedings contain a complaint that the Practitioner was guilty of professional misconduct in relation to Practitioner's client Edna O'Callaghan, in that the Practitioner wilfully breached section 61 of the Legal Profession Act, misappropriated monies due to counsel, failed to pay counsel, failed to account to his client, and failed to disclose his costs.

84 The Practitioner acted for Mrs O'Callaghan in relation to injuries she sustained in a motor vehicle accidence in February 1997. It is alleged that from time to time Mrs O'Callaghan paid to the Practitioner monies on account of disbursements and that these sums amounted to $950, that sum having been paid by the Practitioner into his trust account. It is alleged that at no time did the Practitioner disclose his costs to his client in compliance with division 2 of part 11 of the Legal Profession Act.

85 It appears that following settlement of Mrs O'Callaghan's claim, and pursuant to terms of settlement, the Practitioner's costs were agreed in the sum of $14,000. That amount was sent to the Practitioner by the solicitors for the defendant, by letter dated 25 February 2000.

86 It is alleged that the Practitioner failed to deposit the $14,000 into his trust account, in contravention of section 61. It appears that the Practitioner has declined to advise the Law Society where the cheque was deposited.

87 It is further alleged that the $14,000 represented not only the Practitioner's costs but also an amount paid on account of outstanding counsel's fees due to both senior and junior counsel. It is alleged that $2,100 owing to senior counsel has not been paid.

88 It is further alleged that the Practitioner failed to account to his client for an amount of $235 held in the trust account at the time of receipt of the $14,000, and that he has additionally failed to account to her for the $14,000.

89 In his submissions the Practitioner says the failure to properly account was due to the fact that on 24 February 2000 his unrestricted practising certificate was cancelled, and as a result he had to terminate staff, including the office manager who did all of the bookwork for the firm. He further says that at this time, and as a result of the cancellation of his certificate and the need to terminate staff, he was under a great deal of emotional stress. He states that he believed at that time that the trust account was "frozen".

90 The Tribunal does not accept that this is a reasonable construction of the letter which the Practitioner received from the manager appointed by the Law Society (Exhibit E). Nor does it explain why the practitioner could not have forwarded the cheque for the $14,000 to the manager to be dealt with. An alternative would be to negotiate the cheque through the general account. The Tribunal has difficulty in accepting the Practitioner's explanation that he was not sufficiently accustomed to transactions on the general account to enable this to happen.

91 The Practitioner also contended that between 3 and 6 months after receiving the money, even though the O'Callaghan matter was complete, he realised that senior counsel had not been paid. On the Practitioner's account, some of the cash which would go towards that payment was, at the time of the hearing of this complaint, still in his draw. The Tribunal finds this implausible. Even more implausibly, the Practitioner's evidence that he put aside cash to pay senior counsel and that this money found its way into the old brief to senior counsel. The Tribunal does not accept the Practitioner's evidence in this regard, and puts very little weight on the Practitioner's evidence in relation to his treatment of the $14,000 generally.

92 There has been a clear failure to account to the client, and a failure by the Practitioner to disclose his costs. There has been a wilful breach of section 61 of the Legal Profession Act and in the circumstances the Tribunal is satisfied that there has been a misappropriation of the monies due to counsel. On the basis of these findings the Practitioner is guilty of professional misconduct.

Penalty, and appropriate orders

93 In these proceedings, and taking matters 012037 and 022013 together, the Law Society submits that an appropriate order is that the Practitioner's name be removed from the Roll.

94 The Law Society grounds these submissions on the fact that this is the third time that the Practitioner has come before the Tribunal and that in the Law Society's view, the Practitioner has not justified the confidence or the hope extended to him by the Tribunal on these previous occasions. It is also said that the Practitioner has learnt nothing from the earlier proceedings and that, on his own admissions he has not read the earlier judgements. It is also the Tribunal's observation that the Practitioner has not exhibited any real contrition for what has occurred.

95 Although the Tribunal has failed to make a finding of professional misconduct in some of the counts in these proceedings, most of the allegations against the Practitioner in these proceedings have been upheld by the Tribunal.

96 Significantly, the Practitioner's conduct of these matters, and his evidence, reveals in at least one instance a lack of candour, and in several instances reveals a tendency to mislead his clients and other people with whom he deals.

97 The Practitioner relies on a number of character affidavits. It is clear from some of these affidavits that the Practitioner has a wide experience in criminal law matters and that he is perceived to be a competent criminal advocate. In this regard the Tribunal accepts the affidavit of Mr Evans, the Deputy Registrar of the Parramatta Local Court, Mr Rumore Solicitor and Mr Lynch and Mr Marr of counsel.

98 However, there are some substantial limitations on the character evidence adduced in the Practitioner's favour. The principal reason for saying this is that character evidence was adduced in the Practitioner's favour in the earlier Tribunal proceedings to the effect that they were sure that the Practitioner would not offend again. Regrettably, it would appear that the assessment of those witnesses in the earlier proceedings were not well founded.

99 In deciding whether this Practitioner should be struck off the Roll, the Tribunal must focus on an assessment of the Practitioner's character. As was said in the Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 449, per Mahoney JA:

"Character involves, inter alia, two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. Character is tested not by what one does in good times but in bad."

100 The Tribunal accepts that the Practitioner has achieved a certain level of competence, at least in his handling of criminal law matters. The Tribunal also accepts that the type of practice which was conducted by the Practitioner involves a high-pressured and stressful professional existence. Those sort of pressures were referred to by the Court of Appeal in the Foreman decision referred to above.

101 Unfortunately, the Practitioner by his conduct has consistently failed to maintain the professional standards which are required in order to continue practice. He has also been guilty of misleading conduct, and lack of candour. In short, he has failed to act in accordance with the standards of conduct, and character, referred to by Mahoney JA in Foreman. The instances we have dealt with in these reasons for determination show a substantial failure by the Practitioner to reach the reasonable expected standard of competence and diligence.

102 The primary consideration of the Tribunal in a case such as this is to protect the public by preventing a person unfit to practice from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. In this regard, see the general comments of the NSW Court of Appeal in Law Society of New South Wales v Walsh - BC9706885 - NSWCA - 15/12/1997.

103 In the present case, the cumulative evidence clearly discloses that the Practitioner is unfit to practice and that he should be prevented from doing so. The appropriate order therefore is that his name should be removed from the Roll.

104 Finally, it is noted that in relation to Complaint 4, in proceedings number 012037, that Abbott Pardy & Jenkins, Solicitors the complainant, seek an order for compensation as set out in the Second Schedule to the Information in proceedings number 012037. The Tribunal is prepared to make the requested order for compensation.

105 Accordingly the orders of the Tribunal will be as follows:

(i) The Practitioner's name be removed from the Roll;

(ii) The Practitioner pay the costs of the Informant in proceedings number 012037 and 022013; and

(iii) The Practitioner pay to Abbott Pardy & Jenkins, Solicitors, as compensation, the amount of $5,068.35.