Law Society of New South Wales v Thurairajah

[2002] NSWADT 207

CITATION:	Law Society of New South Wales v Thurairajah [2002] NSWADT 207 revised - 21/11/2002
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Thambipillai Thambithurai Thurairajah
FILE NUMBER:	012003
HEARING DATES:	12/04/02, 01/07/02, 02/07/02
SUBMISSIONS CLOSED:	07/02/2002
DATE OF DECISION:	10/23/2002
BEFORE:	Vass CB -Judicial Member; Foster GF - Judicial Member; Kennedy A - Member
APPLICATION:	Professional Misconduct - swear affidavit to mislead - Professional Misconduct - swear false affidavit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 Coe v New South Wales Bar Association (2000) NSWCA 13
REPRESENTATION:	APPLICANT W Griffiths SC, barrister RESPONDENT H Thurairajah, solicitor
ORDERS:	1 The Solicitor pay a fine of $10,000.00 such fine to be paid within six calendar months from the date hereof.; 2. Should the fine referred to in paragraph 1 not be paid within the time specified then the Solicitors Practicing Certificate is suspended from the date on which payment is due until the date upon which the fine is paid.; 3 The Solicitor is publicly reprimanded.; 4 The Solicitor to pay the reasonable legal costs of the Law Society, such costs to be agreed and failing agreement the Law Society has liberty to apply in 3 days notice.

1 The Law Society of New South Wales (The Law Society) brought before this Tribunal an Information alleging that Thambipillai Thambithurai Thurairajah (The Solicitor) was guilty of professional misconduct on the grounds that:

He swore an affidavit on 6 March 1996 and which affidavit was filed in proceedings number 103314 of 1996 (Probate division) which misled or attempted to mislead the Supreme Court of New South Wales in that the contents of paragraph 2 thereof were to his knowledge false.

The Solicitor in his Affidavit of 22 March 1996 and filed in the same proceedings misled or attempted to mislead the Supreme Court of New South Wales in that the contents of paragraph 2 thereof were, to his knowledge false.

2 The facts and circumstances in relation to the complaint are:

a) By will dated 13 November 1993 Gena Cicutto (the deceased) appointed the Solicitor her Executor and left her estate to a Mr Paul Tonkli.

b) By will dated 7 May 1994 the deceased appointed Geno Cencigh her executor and left her estate to 5 persons including Paul Tonkli. She died on 8 November 1995.

c) On 14 November 1995 Russo & Co Solicitors sent a letter to the Solicitor informing the Solicitor that they acted for Mr Geno Cencigh. They indicated that Mr Cencigh had instructed them that the Solicitor was acting for another nephew of the deceased who is likely to contest the will namely Mr Paul Tonkli. They enclosed a copy of Mrs Cicutto’s Last will and indicated that they were obtaining a formal translation “pending a formal application for probate by our client”.

d) On 22 January 1996 the Solicitor sent a letter to Mr Russo acknowledging the letter from Russo & Co asking for a copy of the translation and then indicating that his client Mr P Tonkli “will contest the latter will and will be claiming his interest over the estate”.

e) On 1 February 1996 the Solicitor sent a letter to Russo & Co indicating that Mr P Tonkli would take appropriate steps to recover the cost of his Services and expenses from the late estate namely the sum of $100,000.00. The letter went on to say “further my client claims that the will dated 13th day of November 1993 should have priority due to the fact of his Services rendered to the late Mrs Gina Cicutto”.

f) Russo & Co acknowledged the letter by letter of 12 February 1996. That letter said that the Executor disputes the Solicitor’s clients claim against the estate and went on to ask for details in relation to the deceased’s banking arrangements and sought an itemised list of personal effects. It also asked that the Solicitors client particularise his claim.

g) On 6 March 1996 the Solicitor swore and Affidavit in the Supreme Court of New South Wales which said in part

"2. The document dated 13 November 1993 signed in the margin by the person before whom this Affidavit is sworn is I believe, the last will of Mrs Gina Cicutto the deceased"
h) On 8 March 1996 the Solicitors filed in the Supreme Court of New South Wales an Application for Probate of the will of the deceased dated 13 November 1993.

i) On 8 March 1996 Russo & Co wrote to the Solicitor asking for a response to his letter dated 12 February 1996.

j) The Solicitor received a requisition from the Supreme Court and in answer to that requisition on 22 March 1996 swore an Affidavit which said:

"2. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of Probate of the will of the deceased as the deceased’s mental capacity progressively declined towards the middle of 1994. Refer annexure marked "D"".
k) On 25 March 1996 Russo & Co received a letter from the Solicitor which was dated 15 March 1996 which said in part "we refer to your letters dated 12 February 1996 and 8 March 1996 and wish to state that my client instructs that as he is the sole beneficiary of the last will of Mrs Gina Cicutto as such there does not exist any requirement for him to disclose any of his financial interests".

l) On 25 March 1996 Russo sent a letter to the Solicitor stating that on 18 March 1996 they were advised by one of the beneficiaries that by agreement between them the Solicitors client was to have a 1/3 share of the estate in full satisfaction of his claim. Russo & Co asked the Solicitor if that was correct.

m) On 26 March 1996 the Solicitor was granted Probate of the Will of the deceased.

n) On 4 April 1996 the Solicitor sent a letter to Russo & Co which stated "With reference to your letter dated 25 March 1996 we wish to state that the Will dated 13 November 1993 is the last Will and Testament of Mrs Gina Cicutto due to the fact of various evidence in hand. As such we are totally ignoring any other proposals for division of property as it is improper to go against the intention of the last Testament".

o) On 24 April 1996 Russo & Co issued a Statement of Claim in the Supreme Court of New South Wales Probate Division on behalf of Geno Cencigh against the Solicitor as Defendant. The Plaintiff in those proceedings claimed that the Grant of Probate to the Solicitor made on 26 March 1996 be revoked.

p) On 23 August 1996 proceedings to strike out a Defence filed by the Solicitor as Defendant in the proceedings came on for Hearing before Mr Justice Hodgson in the Probate Division. His Honour in his Judgment referred to the correspondence between the Solicitor and Russo & Co and pointed out that notwithstanding that correspondence, the Solicitor applied for Probate of the Will and that in the Affidavit in Support of the Application the Solicitor did not include the part of paragraph 2 in Form 97 of the Probate Forms which asserts "I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased". His Honour said "however before Probate was granted, the Defendant (the Solicitor) filed a further Affidavit asserting "I am not aware of any circumstances which raise doubt as to my entitlement to a grant of Probate of the Will of the deceased as the deceased’s mental capacity progressively declined towards the middle of 1994". His Honour went on to say "I have to say at once that, in my opinion, the Defendant having been provided with a copy of a Will purporting to be properly executed by the deceased and dated after the Will for which he was seeking probate, should have explicitly disclosed that Will to the Court. It would have been quite appropriate in those circumstances, for the Defendant to have gone on to allege that the Will was not a valid Will and to provide material in support of that allegation; but the rules do require disclosure of other testamentary instruments which may be operative".

q) On 14 October 1997 following a Hearing before Mr Justice Simos, Terms of Settlement were entered into and pursuant to those Terms there was a verdict and Judgment for the Solicitor but he was removed as executor in the Grant of Probate dated 26 March 1996.

3 It is clear to the Tribunal that at the time that the Solicitor swore the Affidavit on 6 March 1996 he was well aware of the fact that there was another document which purports to be a testamentary disposition by the deceased. What the Solicitor did when he swore the Affidavit was to omit that part of paragraph 2 which would require him to state "I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased".

4 The evidence of the Solicitor which is referred to in his Affidavit of 2 April 2002 and which is his Defence is that on 14 December 1995 he attended the Supreme Court to seek the advice and assistance from the Probate Registrar in relation to the fact of the two Wills being in existence. In paragraph 8 of his Affidavit he says that he had a conference with the Deputy Registrar and he says in that Affidavit that the Deputy Registrar informed him that all the forms and precedents are contained in The Butterworth Loose Leaf Service by Mason and Handler and "if the other Solicitor does not act or if you believe that there is any doubt as to the validity to the latter Will then you should file for the Probate after making the inquiry necessary to contest the validity of the latter Will...". The Solicitor says that he purchased the Butterworth Loose Leaf Service the same day. He then made enquiries and formed the opinion that the deceased did not have testamentary capacity to execute a Will on 7 May 1994. He then stated that in early February 1996 he again went to the Probate Office to file a Caveat. He says the Court Clerk was not sure how to file a Caveat so he saw the Duty Registrar. He says during that conference the Duty Registrar said to him words to the effect "... if the other Solicitor has not filed for Probate and if you file your Caveat, all it Will do is stop your application for the Grant of Probate of the earlier Will... now if you file for the Probate then anyone objecting to it can then lodge a Caveat on the Grant..." The Solicitor stated that he said to the Duty Registrar that he had difficulty in applying for the Probate in light of Paragraph 2 of Form 97. He stated that the Duty Registrar said to him "... put the notice in the newspaper and see if anyone objects to it...". The Solicitor stated that on 14 February 1996 he published in the Sydney Morning Herald a Notice in the prescribed form, that he was making an Application for Probate and he received no response to the advertisement.

5 His evidence then is that on 6 March 1996 he swore the Affidavit as the executor in good faith.

6 On 8 March 1996 the Solicitor stated that he went to the Probate Registry to file the Summons for Probate and the Affidavit of the Executor and the Affidavit of Attesting Witness. At that time he says that he said to the Court Clerk words to the effect "... Paragraph 2 of the Affidavit of the Executor has been varied by deleting the second half of standard format, can you please check whether it is appropriate to do so...". He states the Court Clerk replied words to the effect "I Will make a note on this and the Registrar Will contact you if there are any problems about it...". The Solicitors evidence then is that having received a requisition he telephoned the Probate Registry and spoke to the Court Clerk about the requisition and he says that he asked the Court Clerk to ask the Registrar whether paragraph 2 of the Affidavit of the Executor was acceptable. He was placed on hold and the Court Clerk went away and returned and he says the Court Clerk said words to the effect of "... I have spoken to the Registrar attending the file. We are missing paragraph 16 of the Affidavit of the Executor. There are no problems with paragraph 2 of the Affidavit of the Executor. At present we need paragraph 16 to finalise the Grant of Probate...". At that stage and during the conversation the Solicitor looked at the practice which did not include paragraph 16 and he informed her of that fact and he says that she said words to the effect "... due to the Government Gazette 102, 25 August 1995, paragraph 16 must be sworn and the Grant of Probate cannot be processed without it...". She also said "... You have to swear an Affidavit stating "I am not aware of any circumstances which raise doubt as to my entitlement to a Grant of Probate of the Will of the deceased...". The Solicitor said that he then indicated to her "I cannot do that because there is another Will dated 7 May 1994, but I have a Doctors Statement saying that the deceased’s mental capacity progressively declined towards the middle of 1994...". He says that the Clerk then placed him on hold, went away and came back and said words to the effect "... I have spoken to the Registrar attending on this file. File a Supplementary Affidavit stating "I am not aware of any circumstances which raise doubt as to my entitlement to a Grant of Probate of the Will of the deceased as the deceased’s mental capacity progressively declined towards the middle of 1994". The Solicitor says the Clerk also said you must provide a Doctors Affidavit to this effect with it. The Solicitor says he then had discussions with Butterworths and established that the Service that he purchased did include the amendment to Form 97. The Solicitor on 22 March 1996 swore the Supplementary Affidavit of the Executor and took it to the Probate Office for filing. The Solicitor again says that he spoke to the Court Clerk who said words to the effect "... This is okay, if the Registry finds it deficient of compliance with Form 97 they Will contact you...". The Solicitor did not receive any other communication he says and eventually Probate was granted.

7 It appears from the evidence that the Law Society first wrote to the Solicitor on 29 May 1996 and the Tribunal considers it important to note that in that letter it pointed out to the Solicitor the substance of the complaint which was:

1. That he obtained a Grant of Probate in Solemn Form knowing that a latter Will existed.

2. That he did so without due process to dispute the latter Will.

3. That he did not advise Russo & Co of his instructions knowing that a latter Will existed.

The Solicitor responded to that letter on 12 June 1996 in a very long letter which details a lot of the facts and circumstances surrounding the deceased’s mental health and the fact that Mr Tonkli was overseas when the latter Will was executed but nowhere in that letter is there any mention of his multiple attendances at the Probate Registry and the advice that was supposedly given by either a Registrar at the Probate office or a Court Clerk.

8 Ms Thurairajah who represented her father attempted to make a point that it was not until 23 January 1998 in a letter from the Law Society to the Solicitor that the Solicitors attention was specifically drawn to paragraph 2 of his Affidavit dated 6 March 1996.

9 The Tribunal does not accept that proposition. The letter from the Law Society of 29 May 1996 is in our view clear in its focus and another reason for not accepting the submission is that the Solicitor on 19 August 1997 wrote another lengthy letter to the Law Society in which he quotes from the Judgment of His Honour Judge Hodgson and refers to paragraph 2 in form 97, so clearly at that time he was also aware of the main thrust of the complaint.

10 The Solicitor wrote a lengthy letter to the Law Society on 23 February 1998 and it is in that letter that he provides evidence of his various visits to the Probate office and sets out the detail of the advice that he was given. The Tribunal refers in particular to paragraph 5 where the Solicitor deals with his visit to the Registry on 7 February 1996 when he went along to file his Caveat. In that paragraph he says "I did clearly indicate the difficulty I would have in applying for the Grant of Probate by paragraph 2 of form 97". The next sentence in that paragraph reads "It was indicated that I should swear the Affidavit the best I could. I was further recommended to follow the instructions on the Loose Leaf Service by Mason & Handler". Accepting for the moment the Solicitors account that what he was told was to swear the Affidavit as best he could and to follow the instructions in the Loose Leaf Service. There is nothing in the contemporaneous response from the Solicitor from the 23rd February letter to say that he swore his Affidavit on 6 March 1996 omitting part of paragraph 2 because he was told on 7 February 1996 by the Registry to do so.

11 Counsel’s submission is that the Solicitors conduct in swearing his first Affidavit in the terms that he did is explicable on the basis that the Solicitor, acting in what he saw, it would appear to be, the best interests of his client, allowed his own subjective opinion of whether or not the competing testamentary disposition was a valid Will to completely overwhelm his duty to the Court to disclose the existence of a document which purports to be the testamentary intentions of the deceased. It is noted that paragraph 2 of form 97 has within it the word "purporting" and that the Solicitor or an executor is required to swear to his knowledge:

"Of the existence of any other document purporting to embody the testamentary intentions..."

12 The obligation of the Solicitor or an Executor is to put the Court on notice so that the appropriate person, not the Executor, can determine whether or not the competing instrument is, in fact, a valid testamentary disposition.

13 There are other matters that the Tribunal have taken into account in not accepting the Solicitors evidence that he was given advice from the Probate Registry and that he acted on that advice. One of the exhibits was a copy of notes that were taken by the Solicitors part time secretary. The Solicitor was not able to point to any other file note made by him personally which supported his claim as to the nature of the advice that was passed through to him from the Court Clerk. The file note however makes no reference to a note of any discussion with the Court Clerk or the Deputy Registrar as to the contents of paragraph 2 of the First Affidavit. That file note deals exclusively with the requirement that the Executor include paragraph 16 in the Affidavit. Also noted is that there is nothing in the part time secretary’s note that would suggest that the Solicitor was advised by the Court Clerk that he should swear his Supplementary Affidavit using the very words or terms that he ultimately did. Our belief is that there is only one construction that can be put upon the words in the note and that is that the exact words of paragraph 16 from form 97 of the prescribed form were being read out to the Solicitor.

14 The Tribunal has had the opportunity of reading a number of Affidavits to support the Solicitors claim that he is of good character and that evidence has not been challenged by the Law Society nor were any of the Deponents cross examined. That evidence however has to be assessed in the light of a much fuller account of matters that have revealed themselves during the Hearing and in particular the fact that the Solicitor has in fact sought to sheet home blame or responsibility for his actions on the advice which he says he was given by the Registry. The Tribunal has not accepted that evidence and the fact that the Solicitor has sought to down play his actions by claiming that he acted on the basis of such advice is itself a relevant matter to take into account in the assessment of penalty and the assessment of the Solicitors conduct.

15 When considering penalty one of the principles in deciding what orders should be made is to look at the manner in which the Solicitor confronted the complaint and his demeanour throughout the Hearing. Clearly the Solicitor maintained the submission that he did not mislead the Court in any way and that he relied upon the advice of officers of the Probate Registry in the Supreme Court and Ms Thurairahah who represented him in fact said in her submissions that the Solicitor "felt that his (the Registrar) advice held more weight than the wordings of the practice notes, as they would be the ones who finally made the Grant of Probate". That evidence we repeat has been rejected.

16 The Tribunal is however comfortable that this is not a matter where the finding of unfitness to practice is an appropriate outcome. Mr Griffiths SC referred the Tribunal to a paragraph in the Judgment of Mr Justice Mahoney in the New South Wales Supreme Court of Appeal matter of the Council of the Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 where His Honour said:

"It is also necessary that the Courts be able to place reliance upon what practitioners say and do. The administration of justice would proceed more slowly and with greater cost if the Courts before who the Solicitor practiced felt it necessary to check the accuracy of what the Solicitor had said to it. Thus, a Court Will ordinarily act upon the assurance that a matter was or was not argued in an Appeal; cf Manufacturers Mutual Insurance Limited v John H Boardman Insurance Brokers Pty Limited (68ALJR385 AT 386) . The need to be able to place reliance upon what a Solicitor has said is, in a sense, illustrated by the process of discovery itself. It is the duty of the Solicitor acting in relation to discovery to ensure that the client who makes an Affidavit of Discovery appreciates the duty cast upon him and the importance of referring to all relevant documents. He must ordinarily go through the documents disclosed to ensure that no relevant document has been withheld; see generally Myers v Elman (1940) AC282 . Limits are placed upon the circumstances in which an Affidavit of Further discovery Will be ordered; in general, the Court Will assume that the discovery which has been made is proper unless there are grounds for believing that it is not".

17 Also His Honour in the Judgment acknowledged that the protection of the public has been described as the primary purpose or a primary object of disciplinary proceedings but he goes on to say "it extends also to the protection of the public against similar defaults by other Solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant Solicitor has done Counsel to the Law Society also referred us to the decision of the New South Wales Court of Appeal in Coe v New South Wales Bar Association (2000) NSWCA13. In his Judgment the President Mr Justice Mason says "If, which I doubt, there are exceptional cases where a practitioner who knowingly swears a false Affidavit that is filed in Court could be regarded as fit to practice this is not one of them". That was a case where a Barrister was found to engage in professional misconduct having knowingly sworn a false Affidavit in the Family Court in proceedings in which the Barrister was a litigant. The false Affidavit related to his assets or financial affairs. That case of course is different from the present matter in as much as the Barrister, despite at least two warnings, elected not to go into the Witness box and offer any explanation for his conduct.

18 Also it is clear that the Solicitor would not obtain any financial advantage out of the swearing of the Affidavits which are the subject of the complaint.

19 Taking all the above into account the Tribunal considers the appropriate Orders to be made are to publicly reprimand the Solicitor and to impose a fine and Order him to pay the costs of the Law Society. The Tribunal finds that the Solicitor is guilty of professional misconduct and makes the following orders:

1. The Solicitor pay a fine of $10,000.00 such fine to be paid within six calendar months from the date hereof.

2. Should the fine referred to in paragraph 1 not be paid within the time specified then the Solicitors Practicing Certificate is suspended from the date on which payment is due until the date upon which the fine is paid.

3. The Solicitor is publicly reprimanded.

4. The Solicitor to pay the reasonable legal costs of the Law Society, such costs to be agreed and failing agreement the Law Society has liberty to apply in 3 days notice.

Decision revised on 21 November 2002 by

adding to Paragraph 19 the words "finds that the

Solicitor is guilty of professional misconduct and"