Law Society of NSW v Metleg
[2013] NSWSC 523
•07 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Law Society of NSW v Metleg [2013] NSWSC 523 Hearing dates: 7 May 2013 Decision date: 07 May 2013 Before: Adamson J Decision: A warrant be issued for the arrest of Ms Metleg, such warrant to be endorsed: "Such arrest is not to take place prior to 14 May 2013"
Catchwords: PROCEDURE-order for examination under s 639 Legal Profession Act 2004-issue of arrest warrant against solicitor for repeated non-compliance Legislation Cited: Civil Procedure Act 2005, s97
Legal Profession Act 1987, s105
Legal Profession Act 2004, s630, s639Cases Cited: Application of David Patrick Watson [2004] NSWSC 25 Category: Interlocutory applications Parties: John Ernest Mitchell (Applicant)
Amina Metleg (First Respondent)
Abdulrahman Moussa (Second Respondent)Representation: Counsel:
T Maltz (Applicant)
Solicitors:
Raymond John Collins (Applicant)
File Number(s): 2012/138792
Judgment
Introduction
This is an ex parte application by John Ernest Mitchell (the applicant), pursuant to s 97 of the Civil Procedure Act 2005, for a warrant for the arrest of the first respondent, Amina Raafat Metleg, who is the sole solicitor and director of the law practice known as Saleh and Netka Lawyers Pty Ltd.
The applicant read an affidavit of Lucy Tang sworn 7 May 2013, which establishes the background to the application and tendered a letter sent by facsimile by Ms Metleg to the Court dated 7 May 2013, being today's date. In addition the applicant relied on two certificates of non-attendance dated 9 April 2013 and 7 May 2013 respectively to establish that Ms Metleg did not appear at Court at the appointed time on either of these two dates.
Background to the application
On 4 May 2012, in proceedings commenced by the Law Society of New South Wales, the applicant was appointed by this Court as a receiver for Ms Metleg's practice pursuant to s 630(2) of the Legal Profession Act 2004 (the Act). In this capacity the applicant was required to conduct an investigation into transactions associated with Ms Metleg's trust account. As part of his investigation he requires information from Ms Metleg.
Section 638 of the Act provides that a receiver may require information from persons such as Ms Metleg who are associates of legal practices and imposes an obligation on such a person to provide such information. The applicant's initial request for information was made by letter dated 2 August 2012. Ms Metleg was asked to attend the Law Society's premises on 27 August 2012 to provide certain information pursuant to s 638 of the Act, the nature of which was identified in the letter.
At Ms Metleg's request, this meeting was rescheduled to Friday 14 September 2012. Ms Metleg neither attended the new appointment nor offered any explanation for her absence. Thereafter Mr Collins, the solicitor for the applicant, prepared a draft notice of motion and supporting affidavit to be filed, if need be, in support of an application to this Court pursuant to s 639 of the Act for an order directing an associate of a law practice to appear before the Court for examination on oath or affirmation in relation to the regulated property of the practice.
The draft notice of motion and supporting affidavit were forwarded to Ms Metleg under cover of letter dated 26 September 2012. There was then considerable exchange of correspondence as to the time and date on which Ms Metleg would attend the Law Society's premises to provide the information the applicant required. Eventually a time on 15 October 2012, a date nominated to Ms Metleg, was arranged for the appointment.
On 15 October 2012, Mr Charlton, solicitor, who said that he acted on behalf of Ms Metleg, rang the applicant to say that Ms Metleg would not be attending the meeting scheduled for that day. At a subsequent meeting between the applicant and Mr Charlton, the latter said he would obtain his client's instructions as to the manner in which the applicant's queries would be answered. Mr Charlton subsequently confirmed that Ms Metleg preferred to respond to certain questions in writing, rather than attend a meeting.
Ms Metleg's preference was accommodated and on 9 November 2012 the applicant emailed a substantial number of questions to be answered by Ms Metleg in connection with his investigation into her trust account. The following day, 20 November 2012, Anthony Newton, solicitor, telephoned the Law Society trust accounts' department and advised that he now acted for Ms Metleg. Mr Newton confirmed his instructions in a letter to the applicant dated 20 November 2012.
The Law Society forwarded a letter to Mr Newton dated 2 January 2012 in which it sought a response to the listed questions by Wednesday 23 January 2013. As at today's date the applicant has not received any substantive written response to the questions from Ms Metleg.
On 4 February 2013 the applicant filed a notice of motion seeking an order for the appearance at Court of Ms Metleg for the purpose of an examination pursuant to s 639 of the Act, together with his supporting affidavit. Section 639 provides:
(1) The Supreme Court may, on the application of a receiver for a law practice, make an order directing that an associate or former associate of the practice or any other person appear before the Court for examination on oath or affirmation in relation to the regulated property of the practice.
(2) On an examination of a person under this section, the person must answer all questions that the Court allows to be put to the person.
Maximum penalty: 50 penalty units.
(3) The person is not excused from answering a question on the ground that the answer might tend to incriminate the person.
(4) If, before answering the question, the person objects on the ground that it may tend to incriminate the person, the answer is not admissible in evidence against the person in any proceedings for an offence, other than:
(a) an offence against this Act, or
(b) an offence relating to the falsity of the answer.
On 14 February, 2013 Johnson J made orders against Ms Metleg and the second respondent in accordance with the notice of motion. The examination was listed for hearing at 11 am on the 9 April 2013. On that date Ms Metleg failed to appear, as is established by certificate on non-appearance.
On 9 April 2013, at 11.24 am, Ms Metleg caused to be faxed to this Court from the Greenacre Library a letter in which she explained that she was unable to attend the examination as both she and her daughter were ill. The letter said in part:
"I have back problems and I am unable to walk and my daughter has a high fever and is ill and I have no-one to look after her."
The letter also contained the following paragraph:
"I have prepared the responses to the summons for Mr Mitchell and all responses for the Law Society which they have forwarded to me. I will fax the correspondence by close of business, Wednesday 23 April 2013."
Notwithstanding the undertaking contained in this paragraph no such responses have been received.
Ms Metleg enclosed with the facsimile letter a medical certificate dated 9 April 2013 in which Dr Warda Sapatnekar, of the Chester Hill Family Medical Practice, certified that he had examined Amina Nasser, which is the married name which Ms Metleg uses for certain purposes. The certificate contained the following passage:
In my opinion, he/she will be unfit for his/ her normal work from Tuesday 9 April 2013 to Tuesday 9 April 2013.
Ms Metleg also enclosed a medical certificate from Thien Nguyen of the same practice which said, in respect of Ms Metleg's daughter:
"THIS IS TO CERTIFY THAT
Ms Ayah Nasser
IS RECEIVING MEDICAL TREATMENT FOR THE PERIOD
Monday 8 April 2013 to Saturday 20 April 2013 INCLUSIVE
She WILL BE UNFIT TO CONTINUE her USUAL OCCUPATION
This certificate was completed on 8/4/2013."
The medical certificates set out above do not provide an acceptable explanation for Ms Metleg's non-attendance. Her fitness to take part in a court-ordered examination was not addressed by the medical practitioner who examined Ms Metleg. There is a reference to "usual work" but no indication of what the doctor's understanding of what the "usual work" is. Further, the duration of the certificate, one day, is, without elaboration, at odds with Ms Metleg's description of her disability. The certificate in respect of Ms Metleg's daughter is also problematic, since the patient is too young to have a "usual occupation".
By letter dated 9 April 2013, the applicant's solicitor wrote to Ms Metleg relating what had occurred in Court that day and informing her that the examination that was listed for hearing before Senior Deputy Registrar Kenna at 11 am that morning had been adjourned to 7 May 2013. The letter read in part as follows:
"The Registrar noted that a message had been received from you, that you were unable to attend due to a 'slipped disc' although no medical certificate had been received by the court as at that time".
The author of the letter referred to Ms Metleg's repeated failure to attend and, importantly for personal purposes, foreshadowed the application for a warrant for her arrest in the following terms:
"In the absence of an alternative arrangement being agreed, which may depend on any medical certificates which you provide over the next seven days: If you are not in attendance on 7 May 2013, we reserve our clients right to apply on that day (in bold) for a warrant for your immediate arrest without further notice to you: See inter alia, s 97, Civil Procedure Act; Application of David Patrick Watson [2004] NSWSC 25 (both enclosed)."
Section 97 of the Civil Procedure Act confers power on the Court to issue a warrant for arrest. It provides:
(1) Subject to rules of court:
(a) if, by subpoena or otherwise, the court makes an order, whether under this Act or any other law:
(i) for a person to attend court for any purpose, or
(ii) for a person to produce any document or thing to the court, and
(b) the person fails to comply with the order,
the court may issue, or make an order for the issue of, a warrant for the person's arrest.
In Application of David Patrick Watson [2004] NSWSC 25 (Watson), Young CJ (in Eq) considered a similar situation to the instant case where a solicitor had not attended for an examination under s 105 of the Legal Profession Act 1987, the statutory predecessor to s 639 of the Act. The seriousness of a solicitor's non-attendance at such an examination was emphasised by Young CJ (in Eq) in the following passage:
4 The Court must treat very seriously a default by a solicitor, one of its officers, in complying with an order made under s 105. It is not an order that is made lightly and it is made for the public good.
5 A solicitor is an officer of this Court and the Court expects its officers to observe to the letter their responsibilities. It is not a satisfactory answer that the person is working somewhere and needs an income, not to obey the order of the Court.
6 Furthermore, the whole week was set aside for examinations in this matter and a further week commencing 23 February, and a great deal of inconvenience is caused in the Court not being able to use those dates, and other litigants will suffer.
7 I think that in the future if a solicitor fails to obey an order under s 105, the ordinary order would be that he or she be imprisoned for 28 days with perhaps the writ to lie in the office for a short period in case there be some proper explanation.
8 However, I did not do that in this case because, as I understand it, this is the first case of default under s 105 and the profession probably needs to be advised as to the Court's stern attitude before such orders are implemented.
The recipient could not, after reading the letter of 9 April 2013 and its attachments, purport to be ignorant of either the potential seriousness or likely consequences of non-appearance on 7 May 2013.
When the matter was called for hearing today, 7 May 2013, before the Registrar at 11 am, there was no appearance by, or on behalf of, Ms Metleg. The Registrar adjourned the examination to Friday 17 May 2013.
Once again, Ms Metleg faxed a letter to the Supreme Court as she had done on 9 April 2013. The facsimile imprint indicated that it was received by the Court at 10.34 am. In the letter Ms Metleg referred to yet another solicitor, Mr Adam Houda, whom she alleged she had retained to assist her in the matter.
She said:
"I wish to advise that I suffer back problems and that leads to me being bed written [sic]. I am on large dose of Panadeine Forte for my sever [sic] back pain and not able to physically walk and this medication makes me drowsy."
The medical certificate attached to the letter is deficient in at least three substantial respects. First, the signatory of the medical certificate is not identified by reference to the list of five medical practitioners which appear at the top of the medical certificate. Secondly, although there was a reference to "LBP", which I take to mean low back pain or low back problem, the certifying practitioner did not address the relevant question, namely, Ms Metlegs' fitness to comply with an order to attend an examination in this Court. Thirdly, the medical certificate is a proforma certificate and the words: "He/ she has been unfit/ fit for work" appear. One is left to infer, in Ms Metleg's favour, that the author of this certificate has certified that she was unfit for work. The period of alleged unfitness to is 7 May 2013 to 8 May 2013.
I regard the provision of such a medical certificate in the circumstances of this case as wholly inadequate. It falls far short of what is required of solicitors to comply with their obligations to this Court.
The appropriate order
Notwithstanding the passage set out above from Watson, in which Young CJ (in Eq) refers to the possibility of imprisonment, Mr Maltz, who appeared on behalf of the applicant, does not seek an order that Ms Metleg be imprisoned. Rather, he seeks that an arrest warrant be issued by the Court but that the execution of that arrest warrant be delayed for some period to permit Ms Metleg to approach the Court either to explain her default or to provide some reason why the arrest warrant ought not issue.
The applicant has amply established that Ms Metleg has failed on two previous occasions to attend the Court notwithstanding orders that she do so. Accordingly, the applicant has established the Court's jurisdiction to make an order under s 97 of the Civil Procedure Act.
I am satisfied that, in the exercise of my discretion under s 97, it is appropriate to make the order sought. Ms Metleg is an officer of this Court. As Young CJ (in Eq) said in Watson, the Court expects its officers to observe to the letter their responsibilities to it. Ms Metleg has shown, on the material which is before me, a contumelious disregard of the orders of the Court and of her obligations to this Court, the Law Society and to the applicant. It is wholly unsatisfactory for an officer of this Court to fax a last-minute message to the Court asserting her unavailability and to seek to rely on defective medical certificates. That she has indulged in this avoidant behaviour at least twice is a further indication that a warrant for her arrest is not only appropriate, but also that it is required to secure her attendance. I have no confidence that Ms Metleg will attend the Court for her examination unless a warrant is issued for her arrest.
It is a very serious matter to issue such a warrant, since its execution can have the effect that the person named in it is incarcerated for some period until brought to Court. I am, however, persuaded that the issue of an arrest warrant is appropriate in the instant case. Ms Metleg has, on more than one occasion, shown that she fails to understand either the obligations which are imposed on her by reason of her position as a legal practitioner or the gravity of the consequences when they are breached without good cause.
As referred to above, this morning the Registrar adjourned the hearing of the examination to Friday 17 May 2013. I propose to issue an arrest warrant which is endorsed by a note that such arrest is not to take place prior to Tuesday 14 May 2013. This will give Ms Metleg some opportunity to approach the Court or make some arrangements to comply with her obligations which may have the effect that the arrest warrant does not need to be executed. It will also mean that if she is arrested she can be brought to Court for the adjourned examination on 17 May 2013.
Orders
The order I make is:
(1) A warrant be issued for the arrest of Ms Metleg, such warrant to be endorsed:
"Such arrest is not to take place prior to 14 May 2013."
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Decision last updated: 09 May 2013