Law Society of New South Wales v Staniland

[2009] NSWADT 290

CITATION:

Law Society of New South Wales v Staniland [2009] NSWADT 290

DIVISION:

Legal Services Division

PARTIES:

APPLICANT
Council of the Law Society of New South Wales

RESPONDENT
Kelly Ann Staniland

FILE NUMBER:

092003

HEARING DATES:

11 August 2009

SUBMISSIONS CLOSED:

11 August 2009

 
DATE OF DECISION: 

25 November 2009

BEFORE:

Barnes M - Judicial Member; Pheils J - Judicial Member; Tingle J - Non-Judicial Member

LEGISLATION CITED:

Legal Profession Act 1987

REPRESENTATION:

APPLICANT
Council of the Law Society of New South Wales
L Pierotti, solicitor

Legal Services Commissioner of New South Wales
L Muston, solicitor

RESPONDENT
J Anthony, solicitor

ORDERS:

The following orders were made by consent:-
1. The name of Kelly Ann Staniland is removed from the Roll
2. Kelly Ann Staniland pay the costs of the Applicant of and incidental to these proceedings agreed at $2,875.00

REASONS FOR DECISION

1 The Council of the Law Society of New South Wales (the Law Society) filed an Application for original decision in the Tribunal on 11 February 2009. This Application alleged Kelly Ann Staniland was guilty of professional misconduct.

2 The particulars of the allegation of professional misconduct were that Kelly Ann Staniland made a false statutory declaration on 13 August 2005, that she made false statements in her letter dated 28 November 2005 to the Office of State Revenue in an attempt to mislead that Office and further, that she made a false statement in her Application dated 4 April 2006 to the Administrative Decisions Tribunal for “review of a decision made by the Chief Commissioner of State Revenue”.

3 Orders sought were:-

1. The name of Kelly Ann Staniland be removed from the Roll.
2. That Kelly Ann Staniland pay the costs of the Applicant of and incidental to
these proceedings.
3. Such other orders as the Tribunal deems fit.

4 The Application was supported by an Affidavit sworn by Mr Collins, the Solicitor for the Law Society.

5 The Respondent’s Reply was filed on 4 March 2009 and admitted each of the three grounds that were relied upon in support of the orders sought by the Law Society.

6 Prior to the matter being listed for Hearing on 11 August 2009, an Instrument of Consent was filed on 14 May 2009 which had been signed for and on behalf of the Council of the Law Society of New South Wales, the Legal Services Commissioner and the Respondent.

7 The Instrument of Consent provided:-

The Administrative Decisions Tribunal having found that the conduct of Kelly Ann

Staniland described in Grounds 1 to3 and particularised in the annexed Agreed

Statement of Facts amounts to professional misconduct, makes, by consent the

following orders:-

1. The name of Kelly Ann Staniland is removed from the Roll.
2. Kelly Ann Staniland pay the costs of the Applicant of and incidental to
these proceedings agreed at $2,875.00.

8 An Affidavit was filed on 11 August 2009 and tendered by the Respondent, in which the Respondent affirmed her consent to the orders identified in the Instrument of Consent and acknowledged her professional misconduct.

9 Ms Staniland sought to be excused from attending the proceedings as, in summary, she was residing in the United Kingdom and had no immediate intention to return, was currently unemployed and had most recently worked in a recruitment consultancy in a non-legal capacity, had been seeking employment in a non-legal capacity and had undertaken a temporary receptionist/administrative assistant position.

10 Further, she had no long-term plans, except to secure employment to allow her to remain in the United Kingdom and this was also linked to family commitments which related to her sister and finally, she had insufficient funds to return to Australia for the Tribunal Hearing.

11 Further, as to her intentions, she stated:-

“At this stage I have no plans to return to the legal profession and should I eventually

re-apply for a Practising Certificate, it will be on the basis that I would be seeking

employment as an employed Solicitor, perhaps in the corporate area. I have no plans

of establishing a private practice”.

12 Whilst not personally attending at the proceedings, she was legally represented and the Tribunal took no exception to her application or the reasonableness of the approach.

13 Submissions were received from the parties as to the desirability of dealing with the matter by an Instrument of Consent.

14 For the Law Society it was submitted that the matters were of such seriousness that the orders sought were appropriate and there was agreement as to the relevant facts. These circumstances were supportive of adopting the approach of utilising the Instrument of Consent. There was no argument advanced on behalf of the Respondent that the circumstances did not constitute serious misconduct or that the orders sought were not appropriate. If the matter was to proceed to a Hearing that did not rely upon the Instrument of Consent, then additional time and resources would be devoted to the proceedings without any clearly established purpose and it was obviously not in the interest of the public.

15 There was no demur by the Respondent from what was put by the Law Society.

16 The Tribunal adjourned to consider their approach to the Application and upon resumption of the Hearing, agreed to deal with the matter by way of the Instrument of Consent.

17 The evidence clearly supported and established the particulars in the Agreed Statement of Facts, which are attached to this Decision.

18 It is clear that the Respondent has paid a very heavy price for the making of a false statutory declaration on 30 August 2005, making false statements in a letter dated 28 November 2005 to the Office of State Revenue and in relation to making a false statement in her Application dated 4 April 2006 to the Administrative Decisions Tribunal. It is clear such behaviour constitutes professional misconduct and the escalating nature of the conduct had a compounding effect.

19 She has been convicted of a criminal offence on April 2008, fined $2,000.00 and ordered to pay certain costs. The Tribunal is satisfied as to the Respondent’s genuine contrition.

20 Her planned legal career has been ruined and she has suffered significant dislocation.

21 Mr Pirotti for the Law Society made clear, none of this conduct was of any benefit to her at a personal level, however, she remains accountable for that conduct and the focus should be on the acts of the Respondent as distinct from the consequences of those act. It is clear that she participated in a process that was seeking to secure a fraudulent financial advantage and she knew that it was grossly inappropriate and constituted professional misconduct.

22 The Legal Services Commission’s representative essentially adopted the Law Society’s submissions.

23 For the Respondent Mr. Anthony noted he was bound by his instructions and affirmed there was no issues as to the jurisdiction of the Tribunal or the agreed Statement of Facts.

24 He reiterated there was no disrespect by the Respondent in not attending personally at the hearing and he further submitted that there had been co-operation with the Law Society including a prompt notification to the Society of the outcome of the criminal proceedings.

25 He made submissions as to the contrition of the Respondent and her deep regret together with her acknowledging that she had to take full responsibility for her actions.

26 He further acknowledged that the circumstances of her conduct were compounded by her efforts by pressing ahead with false statements in her letter of 28 November 2005 to the Office of State Revenue in an attempt to mislead that office.

27 What is not clear from the annexed Statement of Facts and is clear on the evidence, in summary is that:-

a. The Respondent was under extreme pressure from her father.

b. Her father has made admissions as to that pressure applied to her.

c. There has been a significant breakup in the family structure consequent upon

these events.

28 Paragraph 3 of the Respondent’s Affidavit filed 11 November 2009 states:

“3. In swearing this Affidavit I acknowledge my professional misconduct as

follows:

i. That I made a false Statutory Declaration on 30 August 2005.

ii. That I made false statements in my letter dated 28

November 2005 to the Office of State Revenue in an

attempt to mislead that office.

iii. That I made a false statement in my application dated 4 April 2006

to the Administrative Decisions Tribunal for ‘review of a decision

make by the Chief Commissioner of State Revenue.’

At this stage I have no plans to return to the legal profession and

should I eventually re-apply for a Practicing Certificate it will be

on the basis I would be seeking employment as an employed

solicitor, perhaps in the corporate area. I have no plans of

establishing a private practice. “

29 Further the Respondent in her letter to the Law Society of 13 May 2008 as to her future plans in part stated in relation to her dialogue with her father:

“In the end I agreed to signing the Statutory Declaration. My father was adamant he knew what he was doing, he deals with bureaucracies on a daily basis for work so I believed him, and it was his money, so I signed it. I deeply regret doing this. I knew it was wrong and despite this caved into my father’s demands.”

30 The Respondent further stated:

“I take full responsibility for my actions…”

31 The Respondent’s father, Robert Staniland in his statement of 20 May 2008 stated:

“14. I instructed Kelly to sign the Declaration to forward to the
OSR. She initially refused but I pressured her to do as I
wanted. The OSR demanded repayment.
15. I pressured Kelly to appeal to the Administrative Decisions
Tribunal and I prepared submissions for her to sign. I
thought I could bluff the OSR into settlement because of the
6 months residential requirement stating the Declaration
was wrong. The OSR did not retract so the proceedings
were withdrawn and the grant monies, interest and penalties
were paid in full.

There was not attempted or potential financial gain by
Kelly I incurred all the costs.

I was totally responsible for this matter. I realise my
behaviour and actions have been inept an unconscionable. I
have used Kelly to get my frustration and hatred of
bureaucracy and allowed it to become consuming. I have
betrayed my daughter’s trust and put her and her career in
an untenable situation and I am sorry.”

32 At the time the events occurred, the Respondent was a comparatively young and inexperienced Solicitor and despite her studies and efforts, her career is now in tatters.

33 Whilst the Tribunal is satisfied that the orders sought in the Instrument of Consent are appropriate, that should not be construed as in any way operating as a preclusion from the Respondent ever seeking to practise or return to practise in New South Wales or indeed, elsewhere.

34 Any application to return to practise will be considered on its merits at that time.

35 The Tribunal is satisfied in the current circumstances the orders set out in the Instrument of Consent are appropriate and the Tribunal accordingly finds:

1. That the conduct of Kelly Ann Staniland described in Grounds 1 to 3 and particularised in the annexed Agreed Statement of Facts amounts to professional misconduct and makes by consent the following orders.

(a) That the name of Kelly Ann Staniland is removed from the
Roll
(b) Kelly Ann Staniland pay the costs of the Applicant of and
incidental to these proceedings agreed at $2,873.00.