Law Society of NSW v Orford (No 2) - [2008] NSWADT 221

No judgment structure available for this case.

CITATION: Law Society of NSW v Orford (No 2) [2008] NSWADT 221

DIVISION: Legal Services Division

PARTIES:
APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
John Laurence Orford

FILE NUMBER: 072005

HEARING DATES: 2 June 2008

SUBMISSIONS CLOSED: 2 June 2008

DATE OF DECISION:
12 August 2008

BEFORE: Chesterman M - Deputy President

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal (Interim) Rules 1998
Civil Liability Act 2002Criminal Procedure Act 1986
Legal Profession Act 1987
Legal Profession Act 2004
Public Service Act 1979

CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 KB 750
Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Johnson v Miller (1937) 59 CLR 467
Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 366
Law Society of New South Wales v Jayawardena [2008] NSWADT 187
Law Society of New South Wales v Knudsen [2003] NSWADT 178
Law Society of New South Wales v Orford [2007] NSWADT 134
Legal Services Commissioner v Ball [1999] NSWADT 45
Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273
New South Wales Bar Association v Meakes [2006] NSWCA 340
Phillips v Disciplinary Appeal Committee of the Merit Protection and Review Agency & Anor (1994) 34 ALD 758
Sims v Wran [1984] 1 NSWLR 317

REPRESENTATION:
C A Webster, barrister
R Lovas, barrister

ORDERS: 1. With respect to the matters alleged in the Application for Original Decision filed on 15 February 2007, the Applicant is to file and serve on the Respondent, within 21 days of the date of these reasons, the particulars described in paragraph [138] of these reasons
2. The Applicant has leave to file and serve, within 21 days of the date of these reasons, an Amended Application
3. The costs of this Notice of Motion are reserved
4. These proceedings are set down for further directions at 10 a.m. on Monday 8 September 2008.

Introduction

1 This decision relates to a Notice of Motion filed by the Respondent in these proceedings, Mr John Orford. He sought an order dismissing, or alternatively staying, four out of the six grounds of complaint contained in a Disciplinary Application instituted against him by the Applicant, the Council of the Law Society of New South Wales (‘the Law Society’). The Notice of Motion also sought, in the alternative, ‘such further or other orders as the Tribunal thinks fit’.

2 The principal ground on which these orders were sought was the alleged insufficiency of particulars relating to each of the four grounds of complaint that the Law Society had provided.

3 At all material times, the Respondent (hereafter referred to as ‘the Solicitor’) has been a solicitor within the meaning of the Legal Profession Act 2004 (‘the LP Act 2004’). He was admitted to practice on 9 February 1977.

4 In the Disciplinary Application, the Law Society alleged that, by virtue of the matters alleged in the six grounds of complaint, the Solicitor was guilty of professional misconduct. It sought orders that he be publicly reprimanded, that he be fined and that he pay the Law Society’s costs of the Application.

5 The Disciplinary Application was based on (a) a complaint made against the Solicitor by another solicitor (Mr Geoff Bourke) on behalf of two clients and (b) two complaints by the Law Society.

6 Each of these three complaints was made before 1 October 2005, the date of commencement of the LP Act 2004. The Application was filed in the Tribunal on a date (15 February 2007) after that commencement.

7 Under transitional provisions set out in clause 16 of Schedule 9 of the LP Act 2004, the complaints are therefore to be dealt with under the Legal Profession Act 1987 (‘the LP Act 1987’), except in relation to proceedings with respect to them in the Tribunal. Those proceedings are governed by Chapter 4 of the LP Act 2004 and any other relevant provisions of that Act, subject to the qualification that the Tribunal may not make any determination or order of a disciplinary nature that is more onerous than could have been made under the LP Act 1987.

8 The LP Act 2004 makes no express provision for orders that a disciplinary application be summarily dismissed or stayed. Under section 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), the Tribunal may at any stage dismiss proceedings on the ground that they are frivolous or vexatious or otherwise misconceived or lacking in substance.

9 In addition, section 24A(2)(b) of the ADT Act provides that in the exercise of ‘interlocutory functions’, which are defined in section 24A(1) so as to include ‘stays’ and ‘summary dismissal of proceedings’, the Tribunal may be constituted by one judicial member assigned by the President or the Head of the relevant Division. In the determination of the present application, the Tribunal has been constituted under this provision.

The dispute between the parties about particulars

10 The full text of the Disciplinary Application, augmented in ways shortly to be explained, is set out below.

11 In a letter dated 11 April 2007 (hereafter ‘the First Request’), following service of the Disciplinary Application on the Solicitor, the solicitor representing him (Mr Bernard Hayward, of Hayward & Co) requested from the Law Society further and better particulars of specified matters alleged in the Application.

12 This request was made in accordance with directions given by the Tribunal on 4 April. Under Rule 19(2)(a) of the Administrative Decisions Tribunal (Interim) Rules 1998 (‘the ADT Rules’), the directions that may be given by the Tribunal include ‘a direction to a party to provide any other party or the Tribunal with further particulars of any allegation or claim made in the proceedings’.

13 In a document dated 23 April 2007 and headed ‘Reply to Request for Further and Better Particulars’ (‘the First Reply’), the solicitor for the Law Society (Mr Raymond Collins) supplied particulars in response to the First Request. This document was filed in the Tribunal on 24 April 2007.

14 In a letter dated 3 May 2007 to the Law Society (‘the Further Request’), Mr Hayward set out a number of detailed concerns regarding the particulars that Mr Collins had supplied and made a further request for particulars. This request was made in accordance with directions given by the Tribunal on 2 May.

15 On 9 May 2007, the Solicitor filed in the Tribunal a Reply to the Disciplinary Application dated 8 May. In relation to three out of the four grounds of complaint to which his current application relates, the Reply stated as follows:-

The respondent says that the allegations are insufficiently particular to answer and are therefore oppressive and/or embarrassing in their present form. The respondent has sought further and better particulars from the applicant and reserves his reply until such particulars are provided.

16 Rule 27(1) of the ADT Rules requires that a legal practitioner in respect of whom an information has been lodged under the LP Act 1987 must lodge a reply ‘as required by section 167 of the Legal Profession Act 1987’ within 21 days of service of the information on him or her. Under Rule 27(2)(b), the Reply is required to ‘traverse each allegation in the information with which the legal practitioner takes issue and must state in summary form any material facts and circumstances on which the legal practitioner relies’. The LP Act 2004, however, does not contain any requirement for a reply to be lodged.

17 In a document dated 11 May 2007 and headed ‘Reply to Further Request for Further and Better Particulars’ (‘the Further Reply’), Mr Collins set out responses to the concerns expressed by Mr Hayward in the Further Request and supplied some further particulars. This document was filed in the Tribunal on 11 May 2007.

18 On 23 May 2007, the Solicitor filed the Notice of Motion to which this decision relates. After both parties had filed written submissions, the Tribunal, having ruled that it should deal with the matter ‘on the papers’ under section 76 of the ADT Act, delivered a decision on 21 June 2007 dismissing the motion (Law Society of New South Wales v Orford [2007] NSWADT 134). The Respondent applied to the Court of Appeal for leave to appeal against this decision. On 10 December 2007, by consent, the Court of Appeal granted leave to appeal, set aside the decision, ordered that the notice of motion be reheard by the Tribunal, differently constituted, and gave directions for the filing of further written submissions. The Law Society, but not the Solicitor, filed supplementary submissions.

19 In reaching conclusions on this notice of motion, I have taken account of the written submissions on which the Tribunal’s earlier decision was based, the Law Society’s supplementary submissions and the oral submissions of counsel at the rehearing before me. At this hearing, which took place on 2 June 2008, Ms Webster appeared for the Law Society and Mr Lovas for the Solicitor.

20 The ensuing discussion is lengthy. As I came to appreciate when preparing these reasons, this application by the Solicitor raised important questions about the expectations that a respondent to a disciplinary application may legitimately entertain regarding the provision of particulars by the applicant.

The content of the Disciplinary Application and the correspondence about particulars

21 In a document handed up at the hearing and subsequently made available to me in electronic form, the Law Society set out in a consolidated format (a) the six grounds of complaint, with supporting particulars, contained in the Disciplinary Application and (b) the text of the First Request, the First Reply, the Further Request and the Further Reply.

22 Modified slightly (chiefly in order to reflect the terminology adopted in this judgment), that document is as follows:-

DISCIPLINARY APPLICATION AND FURTHER PARTICULARS

Particulars in Disciplinary Application filed 15 February 2007 (numbered 1. etc)

First Request – letter dated 11 April 2007 from B Hayward & Co (numbered questions)

First Reply – letter dated 24 April 2007 from R Collins (numbered answers)

Further Reply – letter dated 11 May 2007 from R Collins

A. Complaint by Bourke obo Paul and Dorothy Harrison

2. Failure to protect the mortgagee’s advance.

3. Communicating with another solicitor’s client.

5. Negligence – Failure to secure the mortgagee’s advance from 29 October 2002 to 19 December 2002.

6. Unethical conduct: Negotiating mortgages and variations of mortgages in breach of Section 117 of the Legal Profession Act, 1987.

A. COMPLAINT BY BOURKE [ON BEHALF OF] PAUL AND DOROTHY HARRISON

2. Failure to protect the mortgagee’s advance.

3. Communicating with another solicitor’s client.

1. On 12 June 1998 Mrs Dorothy Florence Harrison [“Mrs Harrison”] advanced the sum of $20,000 to Douglas Charles Grevett and Margaret Helen Grevett [“Mr & Mrs Grevett”][“the first loan”].

2. Mr John Laurence Orford [“the Solicitor”] acted for both Mr & Mrs Grevett and Ms Harrison on the first loan.

3. The Deed in respect of the first loan [“the Deed”]:

did not provide for a default rate of interest;

made provision for payment on the death of the borrower from the disposition of a property known as 43 Bonnet Avenue, Como in the State of New South Wales [“the property”] owned by Mr & Mrs Grevett when Mrs Harrison was not registered on title;

provided for Mr & Mrs Grevett to provide a caveat or caveatable interest as might be reasonably required by Mrs Harrison when no property for such security was nominated;

made no provision for Mr & Mrs Grevett to be liable for Mrs Harrison’s costs of enforcing the Deed; and

was liable to stamp duty but was not stamped.

4.

5. The Solicitor did not secure the first loan by any other means.

6. Interest on the first loan ran at the rate of 13% per annum commencing on 12 June 1998 and was payable quarterly in arrears.

7. The Solicitor received and passed on interest payments in respect of the first loan.

8. The property was disposed by Mr & Mrs Grevett sometime prior to October 1999. No moneys were paid to Dorothy Florence Harrison from the proceeds of the disposal of the property.

9. Interest payments by Mr & Mrs Grevett were not punctual and fell into arrears.

10. By letter dated 12 July 2000 the Solicitor advised Mr & Mrs Grevett that he was instructed by Mrs Harrison that should the principal and outstanding interest not be paid within fourteen days from the date of that letter, there would be no alternative but to commence Local Court proceedings against them. The Solicitor forwarded to Mr & Mrs Grevett a draft Statement of Liquidated Claim. No Local Court proceedings followed.

11. Although further payments were received, by letter dated 3 August 2001 the Solicitor advised Mr & Mrs Grevett that he had received instructions from Mrs Harrison to commence Local Court proceedings for the recovery of the outstanding amount under the first loan. No Local Court proceedings followed.

12. By letter dated 14 August 2001 the Solicitor advised Mr Grevett that Mrs Harrison had agreed to allow a period of three (3) months from the date of the letter for arrangements to be made for the payment to her of principal and interest and on the proviso that the sum of $650.00 be paid to her every four (4) weeks.

13. The principal and outstanding interest was not paid by 14 November 2001.

14. By letter dated 22 November 2001 the Solicitor sought confirmation from Mr Grevett as to his calculation of the amount outstanding.

15. By letter dated 9 April 2002 the Solicitor sought urgent advices from Mr Grevett as to arrangements which would be made to refinance the loan.

17. [sic – the Disciplinary Application contained no paragraph 16] By letter dated 3 May 2002 to Mrs Grevett, the Solicitor advised her of the outstanding indebtedness under the first loan and that his firm may have to commence recovery proceedings.

18. Further payments of interest were received from Mr and Mrs Grevett.

19. By letters dated 11 June 2002 the Solicitor wrote separately to Mr & Mrs Grevett asking for their immediate attention to repayment of the first loan.

20. Sometime in September 2002 Mrs Harrison transferred her affairs to Messrs Kenny & Co., Solicitors and subsequently, on or about 22 October 2002, to Messrs Bourke & Bourke, Solicitors.

21. On 11 October 2002 a sum of $5,200.00 was paid in respect of the first loan

22. On 19 November 2002 Messrs Bourke & Bourke commenced Local Court proceedings on behalf of Mrs Harrison in order to recover the outstanding principal and interest due on the first loan.

23. By letter dated 4 December 2002 the Solicitor wrote to Mrs Harrison therein forwarding to her a cheque in the sum of $5,000 from Mr Grevett together with a “draft calculation sheet”.

24. By letter dated 11 December 2002 Mr Bourke of Messrs Bourke & Bourke wrote to the Solicitor, in part, confirming [and enclosing a letter from Mrs Harrison to that effect] that his firm was now instructed by Mrs Harrison.

25. By letter dated 17 December 2002 the Solicitor again wrote to Mrs Harrison in relation to the first loan when he had been made aware that she had instructed other Solicitors and had terminated his instructions.

26. The Solicitor was in a position of conflict in that he acted for Mrs Harrison when she lent money to Mr and Mrs Grevett and, when the first loan fell into arrears, continued to deal with all parties concerned. Further, when Mrs Harrison withdrew instructions to the Solicitor, he continued to deal with Mr and Mrs Grevett in respect of the first loan.

27. In due course, the moneys outstanding under the first loan were repaid.

Hammond Loan

28. On 29 March 1999 Mrs Harrison lent the sum of $10,000 to Mr James Hammond [“Mr Hammond”] [“the second loan”].

29. The Solicitor acted for both Mr Hammond and Ms Harrison on the second loan.

30. The Deed in respect of the second loan

did not provide any security for the second loan;

did not provide for a default rate of interest;

made no provision for Mr Hammond to be liable for Mrs Harrison’s costs of enforcing the Deed;

was liable to stamp duty but was not stamped; and

31.

33. [sic – the Disciplinary Application contained no paragraph 32] By subsequent agreement, interest payments were to be made quarterly and, subsequently every six months.

34. Interest payments were not made in accordance with the agreed terms.

35. On a number of occasions the Solicitor wrote to Mr Hammond asking that he bring up to date the interest payments under the second loan.

36. Although interest on the second loan continued to be paid, as at the time Mrs Harrison instructed Messrs Bourke & Bourke on or about 22 October 2002, the principal had yet to be paid.

First Request re Complaint A (1) – Conflict of interest – Questions 1 to 7

Q1. Is the conflict alleged to arise in the course of the “Grevett Loan” or the “Hammond Loan” or both?

First Reply

A1. Both.

Further Request:

The Application does not identify the conflicting interests or conflicting duties under which the respondent is alleged to have been labouring.

Further Reply: In response to paragraph 1 of the first request, the Applicant responded “Both”. The Applicant was not requested to provide details of such conflict.

The conflicting interests were those that the Solicitor owed to his lender client [Mrs Harrison] and the borrower clients, Mr & Mrs Grevett and Mr Hammond.

To the borrowers the Respondent owed a duty to ensure that they were able to access the loan and that their legal interests were properly protected. To Mrs Harrison the Respondent owed a duty that her advances were properly secured, able to be recovered in the event of default by the borrower/s and that the Respondent would take all such action to protect and execute such rights without detriment to her.

Between the interests of two or more clients;

A2(a). Yes.

Between the interests of a client or clients, on the one hand, and the solicitor, on the other hand?

A2(b). Yes.

Q3. Who are all the persons whose interests are alleged to be conflicted?

A3. Dorothy Florence Harrison

Douglas Charles and Margaret Helen Grevett

James Hammond

John Laurence Orford

Q4. When did the conflict of interest first arise?

A4 – Grevett Loan

By 12 June 1998 or, at least, the date of sale of the property referred to in Particular A3. See also Particular A26.

[The First Reply then quoted this paragraph of the Particulars in the Disciplinary Application.]

A4 – Hammond Loan

By 29 March 1999 or, at least, by the time the interest payments on the loan advance fell into arrears.

Q5. What is the event or occasion by which the conflict of interest first arose?

A5. See 4 above.

Further Request:

For example in paragraph A 26 of the Particulars of the Grounds of Complaint, it is alleged that the respondent continued to “deal with” certain persons. There are no particulars however as to how such dealings are alleged to have conflicted with anyone else’s interest or duty. Kindly, confirm that the only relevant dealings alleged by the applicant are those referred to in paragraphs A 1 to A 26.

Further Reply: In response to questions 2, 3, 4 and 5 of the first request, the Applicant responded to the questions asked. To now submit that the Applicant’s answers are unhelpful is not a proper criticism of the Applicant. It was the Respondent who raised the questions and he cannot now be heard to be critical of the answers.

Particular A.26 does not allege that the Respondent continued to “ “deal with” certain persons”. That Particular alleges that the Respondent “continued to deal with all parties concerned”. It is clear that in doing so the Respondent’s duties to the borrowers and to the lender were in conflict.

A6. The conflict of interest was continuing.

Further Request:

Further Reply: The response by the Applicant to question 6 was factual. It is inappropriate to suggest that it was “non-responsive” and that it is “intentionally contradictory”, the latter statement implying some deliberate intention on the part of the Applicant to somehow adversely affect the Respondent’s case.

[as noted on 16 May 2007, the request read “internally” not “intentionally” and the applicant withdraws the references to intention]

A7. The allegations against the Respondent are set out in the Application for Original Decision.

Further Request:

Further Reply: The Applicant’s replies to questions 7,10, 11 and 13 are in response to the question “If it is alleged that the solicitor contravened any statute, regulation or rule, kindly particularise that statute, regulation or rule.”

The Applicant’s response was clear and unambiguous – the allegations made against the Respondent are set out in the Application for Original Decision. The only grounds of complaint which refer to the breach of a statutory provision are those which refer to Section 117 of the Legal Profession Act, 1987. In fairness, the Applicant responded to question 11 by indicating that the allegation that the Respondent ‘communicated with another Solicitor’s client’ is also a matter raised in Rule 31 of the Revised Professional Conduct and Practice Rules, 1995. A breach of that Rule, per se, is not pleaded.

Q8. Is the failure alleged to arise in the course of the “Grevett Loan” or the “Hammond Loan” or both?

A8. Both.

Q9. What and when was each instance of conduct that it is alleged the solicitor:

(b) Should not have done which he did do, to protect the mortgagee’s advance.

(i) Grevett Loan

(a) The Respondent failed to ensure that the advance of 12 June 1998 from Dorothy Florence Harrison to Douglas Charles and Margaret Helen Grevett was properly secured and protected. For example, see Particulars A3, 4 and 5.

(b) With respect to the advance referred to in 9(i)(a) above, the Respondent permitted such advance to take place without it having been properly secured and protected. For example, see Particulars A3,4 and 5.

[The First Reply then quoted these three paragraphs of the Particulars in the Disciplinary Application.]

(ii) Hammond Loan

(a) The Respondent failed to ensure that the advance of 29 March 1999 from Dorothy Florence Harrison to James Hammond was properly secured and protected. For example, see Particular A30.

(b) With respect to the advance referred to in 9(ii)(a) above, the Respondent permitted such advance to take place without it having been properly secured and protected For example, see Particular A30.

[The First Reply then quoted this paragraph of the Particulars in the Disciplinary Application.]

Further Request:

Further Reply: The Applicant’s responses to questions 11 and 13 are correct. The Respondent is a Solicitor who, by acting for the lender and borrowers held out that he was competent to ensure that their respective rights and obligations were fully dealt with.

It is not for the Applicant to tell the Respondent how to prepare loan documentation so as to properly secure the rights of the various parties. There were a number of ways in which the Respondent could have done so. The Applicant’s complaint is that the Respondent failed to protect the lender’s advances.

A10. See 7 above. [The allegations against the Respondent are set out in the Application for Original Decision.]

First Request re Complaint A (3) – Communicating with another solicitor’s client – Question 11

Q11. If it is alleged that the solicitor contravened any statute, regulation or rule, kindly particularise that statute, regulation or rule.

A11. See 7 above. [The allegations against the Respondent are set out in the Application for Original Decision.]

The obligation of the Solicitor not to communicate with the client of another Solicitor is further set out in Rule 31[21] of the Revised Professional Conduct and Practice Rules, 1995.

B. COMPLAINT BY LAW SOCIETY OF NSW [FILE 33811]

4. Unethical conduct – Acting in breach of Section 117 of the Legal Profession Act, 1987.

5. Negligence – Failure to secure the mortgagee’s advance from 29 October 2002 to 19 December 2002.

(i) Loan to Cross & Robertson

1. The Solicitor was, sometime in July/August 2002, approached by Mrs Annette Kay Roughly [“Mrs Roughly”] with a view to her investing a sum of $200,000.

2. The Solicitor agreed to assist Mrs Roughly with such an advance.

3. On 28 October 2002 the Solicitor advised Mrs Roughly that she should let him have two bank cheques. One in the sum of $30,000 made payable to NRG Legal and one in the sum of $170,000 made payable to John Orford & Associates. Mrs Roughly provided those cheques to the Solicitor that day.

4. At the time that Mrs Roughly provided the cheques to the Solicitor, the Solicitor was acting for Thomas Arthur Cross and Matthew James Robertson [“the purchasers”] on the purchase from Amanda Jane Cameron [“Ms Cameron”] of a property at Ultimo [“the property”].

5. NRG Legal [“NRG”] were acting as Ms Cameron’s Solicitors on the sale of the property.

6. The purchase price of the property was $330,000 with a deposit of $30,000 to be held by NRG.

7. Contracts on the purchase of the property were exchanged on 8 November 2002 and the first cheque from Mrs Roughly in the sum of $30,000 was paid to NRG as the deposit on the purchase of the property by the Solicitor’s clients, the purchasers.

8. The further cheque in the sum of $170,000 paid by Mrs Roughly to the Solicitor was, on 29 October 2002, paid into a controlled money account and retained therein until 19 December 2002. The interest earned on this amount was paid to Mrs Roughly.

9. The purchase of the property settled on 20 December 2002.

10. In order to settle the purchase, a mortgage of $200,000 was obtained by the purchasers through Eclipse Prudent Mortgage Corporation.

11. Mrs Roughly’s funds of $170,000 were disbursed as follows:

$3,300.00 – John Orford & Associates

$27,680.81 – the purchasers.

12.

13. Between 29 October and 19 December 2002, $30,000 of Mrs Roughly’s advance remained unsecured.

First request re Complaint B (5) – Negligence – Questions 12 and 13

Q12. What and when was each instance of conduct that it is alleged the solicitor:

Should have done which he did not do; or

Should not have done which he did do, to protect the mortgagee’s advance.

A12. (it is assumed that the reference to B(5) is to complaint B(2) )

(a) The Respondent did not secure the sum of $30,000 provided by Mrs Roughly used as deposit funds on the exchange of contracts on the purchase by Cross and Robertson from Cameron referred to in Particular B (4) and (7).

[The First Reply then quoted these two paragraphs of the Particulars in the Disciplinary Application.]

(b) Respondent advanced (sic) should not have permitted the advance referred to in 12(a) above without security being provided to Mrs Roughly for such advance of her funds.

Q13. If it is alleged that the solicitor contravened any statute, regulation or rule, kindly particularise that statute, regulation or rule.

A13. See 7 above. [The allegations against the Respondent are set out in the Application for Original Decision.]

The Information sought by the Respondent is contained within the Application for Original Decision and the Affidavits lodged with the Tribunal in support of the Application.

Further request:

Further Reply: The Respondent’s submission that the final paragraph of the Applicant’s response of 23 April 2007 is an “unlawful” method of providing particulars is otiose.

Further request: …Kindly confirm that the three affidavits served by the applicant to date constitute all of the applicant’s evidence.

Further Reply: The Applicant’s material thus filed with the Tribunal constitutes its case in chief.

(ii) Breach of Section 117

See Particulars B(i) 1-13

1. Section 117 of the Legal Profession Act, 1987 [“Section 117”] provided:

117 Conduct of mortgage practices

(1) A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage unless:

(a) the mortgage is a State regulated mortgage, or

(b) the mortgage is a run-out mortgage, or

(c) the mortgage forms part of a managed investment scheme that is operated by a responsible entity.

(2) A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage except in accordance with:

(a) the Corporations Act 2001 of the Commonwealth, or that Act as modified by any ASIC exemption or the regulations under that Act, and

(b) this Act, the regulations and solicitors rules.

(3) A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor, negotiate the making of or act in respect of a regulated mortgage that forms part of a managed investment scheme unless the solicitor complies with any ASIC exemption that applies to managed investment schemes that:

(a) have more than 20 members, and

(b) are operated under the supervision of the Law Society in accordance with that exemption.

This subsection applies even if the regulated mortgage forms part of a managed investment scheme that has no more than 20 members.

(4) Subsection (3) does not apply if the managed investment scheme is operated by a responsible entity.

(5) A solicitor who knows that an associate has contravened a requirement referred to in subsection (1), (2) or (3) must notify the Law Society Council of that fact in writing within 21 days after becoming aware of the contravention.

(6) A solicitor who contravenes this section commits professional misconduct.

2. A regulated mortgage is defined in Section 115 of the Legal Profession Act, 1987 as:

regulated mortgage means a mortgage (including a contributory mortgage) other than:

(a) a mortgage under which the lender is a financial institution, or

(b) a mortgage under which the lender or contributors nominate the borrower, but only if the borrower is not a person introduced to the lender or contributors by the solicitor who acts for the lender or contributors or by:

(ii) an agent of the solicitor, or

(iii) a person engaged by the solicitor for the purpose of introducing the borrower to the lender or contributors, or

3. The provisions of Section 117 came into effect on 9 September 2001.

4. The advance from Mrs Roughly to the purchasers was a regulated mortgage and did not come within the exemption provided under section 117.

C. COMPLAINT BY LAW SOCIETY OF NSW [FILE 32997]

6. Unethical conduct: Negotiating mortgages and variations of mortgages in breach of Section 117 of the Legal Profession Act, 1987.

1. Section 117 of the Legal Profession Act, 1987 [“Section 117”] provided: …

2. A regulated mortgage is defined in Section 115 of the Legal Profession Act, 1987 as: …

3. The provisions of Section 117 came into effect on 9 September 2001.

4. In contravention of Section 117 of the Legal Profession Act, 1987, the Solicitor:

(i) On 26 August 2002 acted on the increase of the mortgage by Milpron P/L to Robvic P/L from $264.000 to 400,000.00 and extension of the term until 21 March 2003.

(ii) On 22 March 2002 acted on the extension of the term of the mortgage for $380,000.00 by Jean E Wills to Robvic P/L, L E Hyde, A V Campbell and R Hadfield to 23 December 2002.

(iii) On 29 June 2002 acted on the extension of the term of the mortgage for $60,000.00 by Jean E Willis to D R & V J Smith to 14 May 2003.

(iv) On 9 October 2002 acted on the extension of the term of the mortgage for $50,000.00 by Dorothy Bennett to D R & V J Smith to 18 May 2003

(v) On 2 November 2001 acted on the variation of the mortgage by George and Patricia T Daniel to R Hadfield, M Y Robertson, N R & P G Walker from $357,000.00 to $457,000.00 and on 27 June 2002 acted on the extension of the term of the mortgage to 6 June 2003.

(vi) On 14 November 2002acted on the variation of the mortgage of $120,000.00 by Norpet P/L to A V Campbell to 14 March 2003.

(vii) On 11 October 2002 acted on and negotiated the (first) mortgage from Gregory C Sharp to A V Campbell and C & M Y Robertson for $280,00000.

(viii) On 8 November 2001 acted on the increase of the principal of the mortgage (originally for $100,000.00) by Eddie Touma to Robvic P/L for $390,000.00 and subsequently, on 18 March 2002 in the extension of the term of the mortgage to 15 January 2003.

(ix) On 15 August 2002 acted on and negotiated a mortgage by Harry A & R T Touma to Robvic P/L for $350,000.00.

(x) On 25 September 2002 negotiated an unregistered second mortgage for $40,000.00 by Nick J & S Gregory to C & M Y Robertson.

(xi) On 28 May 2002 negotiated an unregistered mortgage for $50,000.00 by Michael, Sally & Buddy Farah and Melissa Awad to D R & V J Smith.

(xii) On 10 September 2002 negotiated an unregistered mortgage for $50,000.00 by John & Vicki Kamenitsas to J Allen.

23 It will be seen that the four grounds of complaint to which this dispute about particulars relates are those numbered A(1), A(2), A(3) and B(5).

Preliminary observations

24 It was common ground that, to quote from the Law Society’s supplementary submissions, the Solicitor was ‘entitled to sufficient particulars of the allegations of professional misconduct made against him so that he knows precisely what it is that is alleged against him’.

25 A recent Tribunal decision, published since the hearing to which the present judgment relates, illustrates that not only the parties but also the Tribunal itself may seek particulars in proceedings such as these. In Law Society of New South Wales v Jayawardena [2008] NSWADT 187, the Tribunal made its own request to the Legal Services Commissioner, who was one of the two applicants in the proceedings, for particulars of the matters alleged in the Commissioner’s application. It did so because, as it said at [60], ‘there were serious issues that had not been addressed and not particularised and which went to the substance of the allegations made against the Respondent’.

26 In the arguments put forward by the parties, the term ‘particulars’ was used, notably by Mr Lovas, as embracing both (a) details of factual allegations made by the Law Society concerning relevant conduct by the Solicitor and (b) the specific legal rules governing the professional behaviour of solicitors which, according to the Law Society, the Solicitor breached through engaging in such conduct. According to Mr Lovas, the particulars to which the Solicitor was entitled went beyond those particulars of factual matters alleged in a statement of claim that a defendant commonly seeks from a plaintiff. He was entitled also to particulars in the sense in which a person who has been charged with criminal offences is entitled to know precisely what are the offences, common law or statutory, that he or she is alleged to have committed.

27 Ms Webster did not explicitly challenge this dual notion of ‘particulars’. This is not surprising, since disciplinary proceedings under Chapter 4 of the LP Act 2004 are of a hybrid nature. The procedure governing them has many resemblances to civil procedure. But the outcome sought by the applicant (be it the Law Society, the Bar Council or the Legal Services Commissioner) is that the respondent practitioner should be found ‘guilty’ of either or both of the recognised disciplinary ‘offences’ (professional misconduct and unsatisfactory professional conduct) and should be subjected to one or more disciplinary ‘penalties’, imposed in the public interest. As Basten JA said in New South Wales Bar Association v Meakes [2006] NSWCA 340 at [112], ‘courts continue to use the language of punishment in making disciplinary orders’. In the preceding paragraph, his Honour observed (as noted in the Solicitor’s submissions to the Tribunal for the purposes of its earlier determination of the Notice of Motion) that ‘descriptions of disciplinary orders denying any punitive character may, taken out of their context, appear to have an element of hyperbole’.

28 What the arguments made in the present case did not do was to distinguish these two types of ‘particulars’ clearly and deal with the possibility that different requirements of specificity might apply to each of them. If respondent practitioners are to know in sufficient detail what is ‘the case’ against them, they must be supplied with appropriate particulars of (a) the relevant conduct in which they have allegedly engaged and (b) the legal principles whereby this alleged conduct is claimed to amount to one or more disciplinary ‘offences’. But it does not follow that the same rules regarding sufficiency of particulars apply to each of these two species of particulars.

29 In an ‘aide memoire’, handed up at the hearing on 2 June 2008, Mr Lovas listed what he described as ‘six classes of defect’ discernible in the documents setting out the Law Society’s case. The documents to which this contention related included in fact the grounds of complaint stated in the Disciplinary Application as well as the ‘consolidated’ particulars, i.e., those provided in the Application, the First Reply and the Further Reply. From now on, I will refer to this group of documents as ‘the Particulars’.

30 In the ensuing sections of this judgment the parties’ submissions and my assessment of them are set out with respect to each of the six alleged ‘classes of defect’.

Failure to identify the relevant statute, rule or ‘standard’

31 The first of the six defects alleged by Mr Lovas was that the Particulars failed to state, with respect to each of the four relevant grounds of complaint, what was the relevant ‘statute, rule or standard alleged to have been contravened’.

32 The Solicitor’s submissions. In this context, Mr Lovas argued first that the Particulars should have indicated with respect to each ground of complaint (a) whether the Solicitor was alleged to have committed professional misconduct at common law, or under one or more provisions of the LP Act, and (b), if the latter, under which provision or provisions.

33 He submitted also that if misconduct at common law was alleged in any of the grounds of complaint, the Particulars should have indicated the relevant ‘standard’ by employing the words of a leading common law authority, such as Allinson v General Council of Medical Education and Registration [1894] 1 KB 750. If misconduct under a provision of the LP Act was alleged, any ‘formula’ contained in that provision should, he said, have been cited.

34 In further elaboration of this argument, Mr Lovas claimed that the Particulars were deficient through failing to indicate in a number of specific contexts which of a number of potentially relevant legal rules had allegedly been breached by the Solicitor.

35 First, he said, the Particulars did not state two matters relating to Ground A(1), headed ‘conflict of interest’. It did not indicate whether the ‘rule or standard’ allegedly breached was that a solicitor should not ‘act contrary to the interest of one or more client’ or that a solicitor should not ‘allow a potential conflict of interest to arise’. In addition, although in the First Reply the Law Society answered ‘yes’ to the question ‘is the conflict alleged to be between the interests of a client or clients, on the one hand, and the solicitor, on the other hand?’, it did not state how such a conflict was alleged to arise.

36 In addition, Mr Lovas maintained that the Particulars relating to Grounds A(2) and B(5) were deficient in three respects. The first was that the heading of Ground A(2) – ‘Failure to protect the mortgagee’s advance’ – was manifestly incorrect because the Particulars did not allege that a mortgage had been given in respect of either of the loans with which this Ground was concerned. Secondly, the Particulars did not state whether the Solicitor was alleged to have breached any term (express or implied) contained in any of his retainers by the clients involved. Thirdly, they did not specify what standard of professional competence (e.g., ‘the ordinary suburban solicitor’, a solicitor possessing special qualifications and/or experience, a standard based on ‘peer professional opinion’ as defined in section 5O of the Civil Liability Act 2002) was claimed to have been broken on account of the ‘negligence’ alleged against the Solicitor in Ground B(5).

37 With reference to the last of these matters, Mr Lovas argued also that professional misconduct could not be proved simply by showing that a solicitor had been guilty of negligence.

38 According to Mr Lovas, the only passage in the Particulars in which the requirement to identify a relevant rule was heeded to any significant extent was the following statement, which he described as ‘equivocal’ and ‘evasive’, in the Further Reply to Question 7:-

In fairness, the Applicant responded to question 11 by indicating that the allegation that the Respondent ‘communicated with another Solicitor’s client’ is also a matter raised in Rule 31 of the Revised Professional Conduct and Practice Rules, 1995. A breach of that Rule, per se, is not pleaded.

39 Mr Lovas cited four authorities in support of these submissions.

40 In the first of them, Phillips v Disciplinary Appeal Committee of the Merit Protection and Review Agency & Anor (1994) 34 ALD 758, the Federal Court set aside a decision of a Disciplinary Appeal Committee within the Commonwealth Department of Immigration and Ethnic Affairs imposing disciplinary penalties upon a senior officer within the Department. The charges laid against the officer were stated to be that he had failed to comply with the provisions of an administrative circular (AC 159) within the Department, ‘being a departmental instruction applicable to the performance of your duties’, and that he had therefore failed to comply with a specified provision of regulations governing the Commonwealth public service.

41 Mr Lovas relied on the following dictum of Wilcox J at 765:-

Where it is alleged that a person has breached the command of a document, whether it be a statute, a regulation or a departmental document such as AC 159, it is highly desirable to follow the wording of the command in drafting the charge; so that the allegation is that the person has failed to do whatever is commanded. This technique not only directs everybody's attention to the particular command, so that its status may be considered and (if necessary) debated; it sets out the factual matters that need to be established to make out the charge.

42 In the second case to which Mr Lovas referred, Johnson v Miller (1937) 59 CLR 467, the High Court upheld the decision of a magistrate to dismiss a complaint under licensing legislation on the ground that the prosecutor declined to indicate which of a number of events referred to in particulars supplied to the defendant would be relied on as constituting the offence charged. Among a number of passages in the High Court’s judgments to which Mr Lovas drew my attention, the following were the most pertinent:-

It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law…. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor, perhaps, the prosecutor) is as yet aware of the offence intended to be charged. Indeed, the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. (Evatt J at 497-498)

43 Thirdly, Mr Lovas relied on Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297. In that case, the plaintiff was an officer employed in the Department of Youth and Community Services under the Public Service Act 1979. At an interview with his regional director, he was told that various complaints had been made about his performance. Shortly after, he was transferred from his current position until an investigation of a possible breach of discipline by him had been completed. This prompted an industrial dispute, which was referred to the Industrial Commission. The presiding judge, Bauer J, was told that the plaintiff had never been told what wrongful conduct was alleged against him. When asked what the charge was, the representative of the Public Service Board stated that the allegation was that the plaintiff had been negligent, incompetent and inefficient in his duties as a district officer. A charge in these terms was available under section 85(e) of the Public Service Act, which provided:

An officer who is negligent, careless, inefficient or incompetent in the discharge of his duties …is guilty of a breach of discipline.

44 In answer to his Honour's request to identify the subject matter of the charge, the Board representative stated:

It is alleged that Mr Etherton did not carry out his duties in the proper manner whilst he was a senior district officer at the Bondi Junction office. It is quite detailed. Mr Etherton has been interviewed at the disciplinary interview in relation to the allegations made against him and he has been given the opportunity to answer those questions that were put to him.

45 The plaintiff sought relief in the nature of prohibition from the Supreme Court. Hunt J granted this relief. In addition to stating a number of propositions about the entitlement of parties to proceedings to obtain particulars (some of which are referred to below), his Honour made the following observations at 307:-

Johnson v Miller

In my view, therefore, the plaintiff was entitled to particulars of the specific acts or omissions relied upon to establish the charge against him and to have identified for him specifically whether he is alleged in relation to each such act or omission to have been negligent, careless, inefficient or incompetent.

46 The fourth case cited by Mr Lovas was Legal Services Commissioner v Ball [1999] NSWADT 45. That case, like the present, involved disciplinary proceedings in the Tribunal against a legal practitioner. The respondent applied for an order that the applicant, the Legal Services Commissioner, supply further and better particulars of the grounds of complaint. In granting this application, the Tribunal cited a number of passages from Etherton v Public Service Board, including the passages just quoted.

47 At [30 – 32], the Tribunal dealt in the following way with a claim by the respondent that the Commissioner had not sufficiently identified the content of a duty that he (the respondent) was alleged by the Commissioner to have broken:-

"The duty arises under the ethical rules, obligations and duties applicable to legal practitioners arising from the common law and under statute .... "

Legal Profession Act

31 The legal practitioner’s legal team queried this answer and suggested to the Commissioner that he "should identify the precise content of the duty alleged. It is not sufficient to rely upon the general rules, obligations and duties applicable to legal practitioners in the circumstances ....". In answer the Commissioner responded at considerable length, 56 lines in fact, referring to, inter alia, the "duty imposed on all legal practitioners not to depart from particular professional standards", the duty "not to engage in conduct which legal practitioners of good repute and competency would reasonably consider disgraceful or dishonourable", the duty "not to engage in conduct which amounts to grave impropriety affecting the legal practitioner’s professional character being conduct which is indicative of a failure to either understand or practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public" and the duty "not to engage in conduct which may reasonably be held to violate to a substantial degree the standard of professional conduct observed or approved by members of a profession of good repute and competency".

32 With respect, none of that advances the matter one iota. With respect, we agree with [the] observations [of senior counsel for the respondent] to the effect these are generalisations but the question related to the precise content of (the) duty to "inform" the professional indemnity insurer. Somebody has to sit down and formulate the content of that duty, how it arises and the source of the duty/obligation, and how it is that the legal practitioner breached that formulated duty/obligation.

48 The Law Society’s submissions. Ms Webster argued that for the purposes of a disciplinary application alleging professional misconduct by a legal practitioner, the common law definition of misconduct, supplemented by provisions such as section 127 of the LP Act 1987 and section 497 of the LP Act 2004, sufficiently indicated the standard of conduct which the practitioner was alleged to have contravened. Where a provision within this legislation (such as section 117 of the former Act) stated that defined behaviour amounted to professional misconduct, that provision had to be identified. But no such provision was relied on by the Law Society in the four grounds of complaint (A(1), A(2), A(3) and B(5)) with which the Solicitor’s Notice of Motion was concerned. While reference was made, in the Further Reply to Question 7, to Rule 31 of the Revised Professional Conduct and Practice Rules 1995, it was made clear that the Law Society did not allege that the Solicitor had contravened the ‘standard’ set by this Rule.

49 In making these arguments, Ms Webster relied on a passage (paragraphs [124 – 126]) in the judgment of Spigelman CJ in Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273. In that case, the Chief Justice described, without adverse comment, the use of annexures to a disciplinary application to set out the ‘facts matters and circumstances’ on which the applicant Council relied in alleging professional misconduct on the part of the respondent practitioner. At [126], he described the annexures as ‘entirely appropriate to ensure that the obligation to afford natural justice is complied with’, even though ‘the conduct of which complaint is made must be deduced from the contents of the Annexure’. Ms Webster submitted that, when the Disciplinary Application in the present case was read as a whole, it was equally the case that the Law Society’s claim of professional misconduct against the Solicitor was supported by sufficient particulars of the behaviour alleged to amount to professional misconduct.

50 With reference to the passage just quoted from the Tribunal’s decision in Legal Services Commissioner v Ball, Ms Webster submitted that the particular professional duty discussed in it – that of notifying a professional indemnity insurer of certain matters – was a ‘most unusual’ duty, which might therefore have to be spelt out in the particulars to a disciplinary application. By contrast, she said, the duties that the Solicitor in the present case was alleged to have broken were all well recognised duties imposed on all solicitors engaged in conveyancing.

51 In addition, Ms Webster advanced arguments relating to some of the specific defects identified in Mr Lovas’s submissions under this heading (see [34 – 38] above). I will indicate what she asserted in discussing these points below.

52 Assessment: general principles. In trying to determine the level of ‘precision’ with which the Particulars in this case should be required to define any ‘rule’ or ‘standard’ which the Solicitor is alleged to have contravened, it is, in my judgment, important to take account of the extent to which ‘precision’ may be attained without setting out a considerable quantity of intricate law.

53 When the rule in question is embodied in a statutory provision, the necessary precision can be attained by simply citing the provision, as was indeed done in the particulars to the two grounds of complaint (B(4) and C(6)) which are not the subject of the present application. By the same token, Wilcox J’s injunction (in Phillips v Disciplinary Appeal Committee of the Merit Protection and Review Agency & Anor (1994) 34 ALD 758 at 765) that ‘the wording of the command’ should be employed when ‘drafting the charge’ is relatively easy to obey when ‘the command’ is or forms part of ‘a statute, a regulation or a departmental document’.

54 As Ms Webster pointed out, however, most of the grounds of complaint in these proceedings, as in many other disciplinary proceedings, allege professional misconduct as defined in the common law, with the supplementation provided by section 497 of the LP Act. Simply to explain this common law concept by quoting broad definitions, such as ‘conduct which legal practitioners of good repute and competency would reasonably consider disgraceful or dishonourable’ would not materially assist the Solicitor to know what specific ‘rule’ or ‘standard’ he is claimed by the Law Society to have contravened. In Legal Services Commissioner v Ball [1999] NSWADT 45 at [31], the Tribunal criticised the Legal Services Commissioner, correctly in my opinion, for having done this in replying to a request for further and better particulars.

55 Some degree of particularisation is needed, therefore, but not so much as to require the recitation of (to repeat a phrase I have already used) ‘a considerable quantity of intricate law’.

56 In the present case, the approach adopted by the Law Society in the Disciplinary Application was a different one to that adopted by the Commissioner in Ball. The Application identified by the use of short descriptive headings or ‘labels’ the various species of wrongful conduct, claimed to amount to professional misconduct, that the Solicitor allegedly committed.

57 These ‘labels’ – for example, ‘conflict of interest’ and ‘communicating with another solicitor’s client’ – have in my opinion the potential to give to a respondent practitioner sufficient notice of the nature of the wrongdoing, falling within the broad scope of professional misconduct, with which he or she is being charged.

58 To understand precisely what instances of the type of conduct thereby identified or ‘labelled’ will in fact be treated as wrongdoing of this type, the respondent may have to carry out his or her own investigation of detailed aspects of the legal concept of professional misconduct. The ‘label’ alone will not supply this information. But a similar task will frequently have to be performed by a person charged with a criminal offence, particularly if it is a common law offence. In these circumstances, the prosecutor is not required to give to the accused a detailed exposition of the legal principles determining the scope of the offence.

59 In making these observations, I depart from what the Tribunal held to be necessary in Ball. At [30] and [32], referring to ‘the alleged duty of the legal practitioner to inform the professional indemnity insurer of any contingency concerning the termination of criminal proceedings’, the Tribunal said that the Commissioner was obliged to ‘formulate the content of that duty, how it arises and the source of the duty/obligation’. It may be, as Ms Webster suggested, that this degree of elaboration is required when the duty which a practitioner is alleged to have broken is ‘most unusual’. But if the Tribunal purported in this passage to spell out the requirements governing every situation where an alleged breach of a professional duty is a component of a disciplinary application against a legal practitioner, I respectfully disagree. In cases where the duty is well recognised, it is not necessary to include in what is after all a pleading a detailed account of the relevant legal principles.

60 For the foregoing reasons, I reject Mr Lovas’s argument that the Particulars in this case are insufficient because of their failure to employ ‘the words of a leading common law authority’ on the definition of professional misconduct. Instead, as I have just said, short headings or ‘labels’ such as are used in the Particulars (examples are ‘conflict of interest’ and ‘communicating with another solicitor’s client’) have the potential to give to a respondent practitioner sufficient notice of the nature of the wrongdoing alleged against him or her. But they will not actually achieve this unless they are formulated correctly and with a reasonable degree of precision.

61 Assessment: specific questions. As indicated above at [35], Mr Lovas submitted that the Particulars relating to Ground A(1) did not sufficiently define the duty or duties allegedly broken by the Solicitor.

62 The ‘label’ used for this Ground – ‘conflict of interest’ – is in fact liable to mislead and is frequently used incorrectly. It is often employed as a shorthand version of ‘conflict of interest and duty’ (a much more informative phrase, as it actually does pinpoint the conflict in question). In the present case, it was used in Ground 1 principally to describe another sort of conflict, namely a conflict between competing duties owed by the Solicitor to two of his clients (who were the lender and the borrower in a loan transaction). But as indicated in the Further Reply, the Law Society also intended it, apparently, to be understood as describing a conflict between interest and duty – i.e., between the Solicitor’s interest in earning professional fees from these two clients and his duty to protect the interests of each of them properly.

63 Mr Lovas also submitted that there is a distinction, which was not addressed in the Particulars, between acting contrary to the interests of a client and putting oneself in a position where a potential ‘conflict of interest’ occurs.

64 In view particularly of these ambiguities associated with the phrase ‘conflict of interest’, the Disciplinary Application, standing alone, did not in my opinion sufficiently indicate to the Solicitor the nature of the breaches of duty alleged in the first ground of complaint. This was the case even though paragraph 26 of the particulars contained in the Application went some way towards defining the nature of the conflict being alleged. The additional details provided in the First Reply and the Further Reply (see A1, A2 and A3 in the Particulars set out above) repaired the deficiencies to some extent, even though the terminology of the Further Reply to Question 1 was unsatisfactory in some respects – notably in that it referred to ‘conflicting interests’ being ‘owed’ by the Solicitor to his ‘lender client’ and his ‘borrower clients’.

65 In the light of these observations, there remain three matters within Ground A(1) in respect to which the Solicitor is entitled to further particulars of a duty allegedly breached by him.

66 The first of these arises from the fact that the First Reply’s answer (A2(b)) to the question ‘Is the conflict alleged to be between the interests of a client or clients, on the one hand, and the solicitor, on the other hand?’ was simply ‘Yes’. Neither this answer nor the additional material in the Further Reply defined further these competing interests, even though in the Further Request the Law Society was asked to ‘identify the conflicting interests or conflicting duties under which the respondent is alleged to have been labouring’. Although Ms Webster claimed that what had been said so far gave sufficient guidance to the Solicitor, I consider that it is legitimate for the Solicitor to seek further particulars of this aspect of the case alleged against him.

67 Secondly, the Law Society’s answers to the question as to the date when the alleged ‘conflict of interest’ relating to the Grevett loan first arose have left the matter uncertain. In the Disciplinary Application, paragraph A26 dealt with this issue as follows: ‘The Solicitor was in a position of conflict in that he acted for Mrs Harrison when she lent money to Mr and Mrs Grevett and, when the first loan fell into arrears, continued to deal with all parties concerned.’ The date of the loan to Ms Grevett was 12 June 1998. Subsequently, the First Reply identified the date when the alleged conflict of interest arose as follows: ‘By 12 June 1998 or, at least, the date of sale of the property referred to in Particular A3. See also Particular A26.’

68 If the earlier date, 12 June 1998, is to be taken to be the date when the alleged ‘conflict of interest’ arose, the impropriety alleged against the Solicitor is, by implication, his duty not to put himself – or, indeed, to remain – in a position where his duty to one client might potentially be in conflict with his duty to another client. If the date when the loan fell into arrears is the relevant date, the alleged impropriety is that of continuing to act for both clients after his duties to each of them were actually in conflict. Once again, it is legitimate for the Solicitor to seek clarification of the case being put forward against him.

69 Thirdly, I agree with a submission by Mr Lovas that the answer (A6) given in the First Reply to a question as to ‘the date, event or occasion’ on which the alleged ‘conflict of interest’ came to an end was unduly vague. The answer given was simply this: ‘The conflict of interest was continuing’. Ms Webster argued that obviously the conflict came to an end when the Solicitor ceased to act for Ms Harrison. But in my opinion a more precise answer should be provided.

70 I turn now to the three deficiencies alleged by Mr Lovas with respect to the Particulars relating to Grounds A(2) and B(5) (see [36 – 37] above).

71 As to the first of them, Ms Webster conceded that the heading of Ground A(2) – ‘Failure to protect the mortgagee’s advance’ – was incorrect. It should, she said, be replaced by a heading such as ‘failure to protect the lender’s interests’.

72 As to the second matter, I agree with Mr Lovas that the Solicitor is entitled to know whether he is alleged to have breached any term (express or implied) contained in any of his retainers by the relevant clients. If a claim of this type forms part of the Law Society’s case under either of these Grounds (both of which include a general allegation of ‘failure to protect the mortgagee’s advance’), it is a materially different claim from one that the Solicitor failed to take steps that, on account of his own professional knowledge and experience, he should have known to be required.

73 The Solicitor is accordingly entitled to the following further particulars: (a) whether, with regard to any of the transactions outlined in Grounds A(2) and B(5), his alleged failure to ‘protect the mortgagee’s interest’ involved a breach of any term or terms of any agreement by which the relevant client retained him; and (b) with respect to any positive answer given to (a), the usual particulars of the alleged agreement, including the term(s) allegedly breached.

74 I take the contrary view with regard to the third deficiency alleged by Mr Lovas. This was that in order to respond to the Law Society’s allegation of ‘negligence’ in Ground B(5), the Solicitor was entitled to know what standard of professional competence is alleged to have been applicable. Mr Lovas in fact undermined this submission somewhat by making the correct observation that negligence, per se, is not professional misconduct. It follows that the question of what ‘species’ of negligence is alleged is not of direct relevance. It is not important that the conduct pleaded and proved against the Solicitor might be held to be negligent under one of the various standards cited by Mr Lovas (for example, the standard to be expected of a solicitor possessing special qualifications and/or experience), but not under another (for example, that of ‘the ordinary suburban solicitor’).

75 The heading ‘negligence’ is in my opinion sufficient to give notice to the Solicitor that what is alleged against him in this part of the Disciplinary Application is a failure to exercise due skill and care in acting for his clients.

76 This brief discussion has illustrated the proposition that what is in issue in this application by the Solicitor is whether the Particulars are adequate, not whether the conduct alleged on his part would or would not constitute professional misconduct. That distinction was not always observed in the submissions made at the hearing, notably in relation to certain aspects of Ground B(5).

77 There remains under this heading the question whether the reference in the Particulars to Rule 31 of the Revised Professional Conduct and Practice Rules is, as claimed by Mr Lovas, ‘equivocal’ and ‘evasive’ (see [38] above). In my opinion, the relevant passages in the First Reply (see A11) and the Further Reply (see under A7) define the Law Society’s position regarding this Rule with sufficient clarity.

78 In these passages, the Law Society did not assert that Rule 31 was a ‘rule or standard alleged to have been contravened’ by the Solicitor, with the consequence that he should be held to have committed professional misconduct. The Law Society did no more than to point out, correctly, that the alleged behaviour of the Solicitor which it has outlined in Ground A(3) and claims to be an instance of professional misconduct is also a subject ‘raised’ in Rule 31.

Failure to state what specific acts and omissions are relied on

79 The second alleged defect in the Particulars, according to Mr Lovas, was that they failed to state (a) that which it is alleged should have been done but was not done and (b) that which it is alleged should not have been done but was done. These matters should, he submitted, have been set out in complete sentences.

80 The Solicitor’s submissions. Mr Lovas’s submissions in this context included the proposition that with respect to every claim by the Law Society that the Solicitor’s actions did not comply with a standard required by the law, the Particulars should not only identify those actions but should also state what the Solicitor should have done instead. This requirement would imply that where, for instance, specified conduct by him in a particular situation was alleged to amount to negligence, the Particulars should also set out what conduct by a solicitor in this situation would not amount to negligence.

81 Mr Lovas relied here on two cases already discussed, Johnson v Miller (1937) 59 CLR 467 and Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297. He referred in particular to the first of the two passages quoted above at [42] from the former case (being a passage in the judgment of Dixon J).

82 In addition, Mr Lovas cited a passage in the judgment of Campbell AJA in a case (Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 366) dealing with the requirement in section 175(3)(b) of the Criminal Procedure Act 1986 that a court attendance notice (a ‘CAN’) issued for the purpose of instituting summary criminal proceedings must ‘briefly state the particulars of the alleged offence’. At 377 [46], his Honour said:-

Rather, the particulars of an offence are a statement of the way in which, in the circumstances of the particular case, the prosecutor alleges that the general standard of conduct imposed by the provision of the law that creates the offence has been breached. Because particulars are dependent on the circumstances of the individual case in this way, the particulars of an offence are not formulaic, and are likely to differ from one CAN to another, even where one is comparing CANs that all charge the same offence.

83 In elaborating upon this submission, Mr Lovas referred to three specific aspects of the Particulars.

84 First, he said, the Particulars did not consistently use complete sentences. Instead (as already noted in this judgment), short headings or ‘labels’, such as ‘conflict of interest’, were employed.

85 Secondly, the Particulars in one instance expressly refused to indicate to the Solicitor ‘that which it is alleged should have been done but was not done’. Mr Lovas referred here to the following passage in the Further Reply, relating to what was initially asked in Q10:-

It is not for the Applicant to tell the Respondent how to prepare loan documentation so as to properly secure the rights of the various parties. There were a number of ways in which the Respondent could have done so. The Applicant’s complaint is that the Respondent failed to protect the lender’s advances.

86 Thirdly, in relation to the phrase ‘continued to deal with all parties concerned’ in paragraph 26 of the Disciplinary Application, Mr Lovas submitted that (a) it was unduly vague, (b) the Law Society had refused to indicate whether the only ‘dealings’ relied on were those described in the Application and (c) that it contradicted an allegation that the Solicitor ‘continued to act for all parties concerned’ in a resolution of a Professional Conduct Committee of the Law Society, made on 17 August 2006 and referred to in an affidavit of Mr Collins filed in these proceedings.

87 The Law Society’s submissions. With reference to Mr Lovas’s reliance on the passage in Campbell AJA’s judgment in Knaggs v Director of Public Prosecutions at 377 ([46]), Ms Webster submitted that it was important to tale account also of the passage immediately following. His Honour said:-

Another consequence of particulars being dependent on the circumstances of the individual case is that there can be legitimate differences of opinion about whether proper particulars have been provided. It is possible to state the manner in which a case is proposed to be put at higher, or lower, degrees of particularity. It is ultimately a matter of judgment, not a simple matter of fact, as to whether adequate particulars have been supplied of the allegation that a CAN makes of commission of an identified offence. That judgment is one that must be formed bearing in mind the purpose of particulars, as well as the specific offence that is alleged.

88 As Ms Webster pointed out, Campbell AJA then quoted from the judgment of Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321-322. In the passage quoted, Hunt J observed, inter alia, that ‘there is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved’.

89 Ms Webster briefly addressed the first and the third of the three specific matters raised by Mr Lovas. Her observation regarding the first matter was that it was a question of form only. Her observation regarding the third was that it was clear that ‘deal with’ meant ‘act for’ and that there was therefore no need for the Law Society to provide further particulars.

90 Assessment: general principles. Save in one respect, there is in this case little room for doubt or dispute regarding the broad criterion to be applied in determining whether sufficient particulars of the relevant conduct of the Solicitor have been furnished. He is entitled, as Mr Lovas argued, to know what conduct on his part (including omissions as well as positive actions) is alleged to constitute professional misconduct of the kinds identified in the Disciplinary Application.

91 The question about which doubt may be entertained is the one which I sought to formulate at [80] above. With respect to every claim by the Law Society that the Solicitor’s actions did not comply with a standard required by the law, must the Particulars not only identify those actions but also state what the Solicitor should have done instead? The submission made by Mr Lovas was that they should.

92 It may be noted that where what is alleged against a respondent practitioner is that he or she omitted to take a certain step, this allegation simultaneously indicates that the conduct required of him or her at the relevant juncture was to take this step. But where the allegation is that a positive action in which the respondent engaged in did not comply with a relevant legal standard, it does not necessarily indicate what other action would amount to compliance. It may do, where the action in question is inherently wrongful (for example, transferring a client’s money out of a trust account into the respondent’s own bank account without any authorisation to do so). But where, for instance, the standard of conduct allegedly breached is broad and flexible – as, for instance, when the claim made is one of negligence – a description of the allegedly wrongful conduct does not necessarily indicate what conduct should have been engaged in instead. Mr Lovas’s submission was, in effect, that in such a situation the particulars provided should identify not only (a) the conduct claimed to amount to negligence but also (b) what conduct in the relevant situation would not amount to negligence.

93 It does not appear to me that any of the authorities cited by him, nor any others of which I am aware, indicate that a general rule of this nature exists. It is certainly not the case that if, in the particulars supporting a personal injury claim for damages for negligent driving, it is alleged that the defendant drove at excessive speed, the plaintiff is bound to stipulate as well what would have been a safe speed in the circumstances.

94 Debate about this issue occupied some time at the hearing of the Solicitor’s application. But as will become apparent, its resolution is not, after all, a matter of prime importance in determining the application.

95 Assessment: specific questions. I turn now to deal with the three specific questions outlined above at [84 – 86].

96 As to the first question, I agree with Ms Webster’s submission that the question whether complete sentences or shorthand ‘labels’ are used in summarising the allegedly wrongful conduct of a respondent practitioner is one of form only. The dangers of using shorthand ‘labels’ have, it might be said, been illustrated in this case. But that does not mean that there is a rule of procedure prohibiting their use.

97 On the second question, my conclusion, for reasons indicated above at [91 – 93], is that the Law Society should not be required to state what loan documentation should have been prepared by the Solicitor in order properly to safeguard the rights of the various parties. It is sufficient for the Law Society to outline the steps that the Solicitor actually took (according to the evidence that the Society proposes to adduce) and to indicate that it will claim before the Tribunal that on account of the insufficiency of these steps to protect his client’s interests he should be found guilty of professional misconduct.

98 Thirdly, I consider that the phrases ‘deal with’, ‘dealt with’ and all parties concerned’ in paragraph 26 of the Disciplinary Application are not sufficiently clear. I am not concerned about any divergence from the wording of the resolution of a Professional Conduct Committee. But Ms Webster’s indication during submissions that the words ‘deal with’ were intended as a synonym for ‘act for’ had the effect, in my judgment, of illustrating the ambiguity of the words ‘deal with’. Since the Law Society’s claim that the Solicitor committed professional misconduct by putting himself and remaining in a position of ‘conflict of interest’ is based, in part, on his having acted for both parties in a loan transaction, it is important that the Particulars should indicate unambiguously the period during which the Solicitor was allegedly in this position. If in fact the Law Society’s case is that during the period referred to in the relevant sentence in paragraph 26 the Solicitor continued to act for both parties to the transaction, it should say so clearly. If any other parties are being referred to, that should also be made clear.

Failure to provide particulars exclusively for each complaint

99 The third defect alleged by Mr Lovas was that each ground of complaint should have been, but was not, accompanied by particulars that related exclusively to the ground in question. He submitted that the narrative provided for Grounds A(1) – (3) was deficient in this way. It was not clear in relation to a number of paragraphs within them whether they related to Ground A(1) only (‘conflict of interest’), to Ground A(2) only (‘failure to protect the mortgagee’s interest’) or to both of these grounds. As illustrations, Mr Lovas referred to paragraphs 3 (final dot-point) and 5.

100 An accompanying submission, which is most conveniently dealt with here, was that in the narratives provided for Grounds A(1) – (3) and for Ground B(5) it was not clear in relation to a number of paragraphs whether they were intended to constitute allegations of relevant wrongdoing by the Solicitor or merely to provide ‘context’ for those allegations. It was unfair, Mr Lovas submitted, that the Solicitor should have to guess which of these functions was intended. Mr Lovas singled out the following paragraphs in the Particulars as instances of this deficiency: 3 (final dot-point), 4 – 7, 8 (second sentence), 10 (last sentence), 15, 17 and 31 – 36.

101 In response to these two submissions, Ms Webster asserted that the distinctions referred to could be sufficiently drawn when the content of the Particulars was given careful consideration.

102 It will be seen that the general issue raised here is whether the Particulars sufficiently notified to the Solicitor, with respect to each of the grounds of complaint, what specific conduct by him was claimed (a) to have occurred and (b) to have been wrongful. These submissions by Mr Lovas represented therefore an elaboration of the second of his alleged ‘defects’, which I have just discussed.

103 In my opinion, these arguments by Mr Lovas should be accepted. Notably in relation to Grounds A(1) and (2), it is not clear whether a number of the paragraphs in the accompanying Particulars (a) allege wrongful conduct under (i) the former Ground, (ii) the latter Ground, or (iii) both Grounds, or (b) set out no more than the context to either or both of these Grounds. The paragraphs which raise this difficulty include, at least, paragraphs 3 (final dot-point), 5, 10 and 11.

104 In upholding these contentions by Mr Lovas, I place significant weight on the fact that to classify the individual paragraphs according to these criteria should not be particularly difficult, nor need it involve long-winded pleading.

105 It would be feasible, for instance, for the Law Society to retain the narrative for Grounds A(1), A(2) and A(3) more or less as it is (i.e., in 36 numbered paragraphs, supplemented by the First Reply and the Further Reply) and to add a brief notification of the following: (a) which of these numbered paragraphs, taken in conjunction, constitute the allegations of misconduct made against the Solicitor with respect to each of these three Grounds, taken separately; and (b) which paragraphs constitute mere ‘context’ for those allegations. It would seem likely that a significant proportion of the 36 paragraphs would be identified as forming part of the case against the Solicitor under both Ground A(1) and A(2), with a lesser number being linked with Ground A(3).

106 The latter part of this exercise – i.e. separating particulars of alleged misconduct from those setting out ‘context’ only – could be carried out relatively simply with regard to the paragraphs (numbers 1 to 13) of the Particulars associated with Ground B(5).

Reserving the Law Society’s position

107 The fourth defect in the Particulars asserted by Mr Lovas was that the Law Society had, but should not have, ‘reserved its position in respect of the particulars or the contents of’ some of the grounds of complaint.

108 The proposition that a plaintiff should not reserve its position with respect to the grounds of a claim or the supporting particulars is undoubtedly correct so long as what the plaintiff seeks to withhold is material that genuinely forms part of the grounds or of particulars to which the defendant is entitled. But if instead the withheld material is evidence that the plaintiff intends to adduce, the plaintiff is quite entitled, having regard to the observation quoted above from Sims v Wran [1984] 1 NSWLR 317, to ‘reserve its position’.

109 Mr Lovas contended that the Law Society, in its statement regarding Rule 31 of the Revised Professional Conduct and Practice Rules (see [38] above), was ‘reserving its position’ in circumstances where it was not entitled to do so.

110 I do not agree. For reasons given at [77 – 78], I consider that in the First Reply and the Further Reply to Question 7, the Law Society defined its position in relation to this Rule with sufficient clarity.

Making a ‘global reference’ to all the proposed evidence

111 The fifth defect in the Particulars alleged by Mr Lovas was that they required the Solicitor to glean details of the case being brought against him from the affidavit evidence that the Law Society had filed.

112 In contending that this was impermissible, Mr Lovas relied chiefly on the following passage in the judgment of Hunt J in Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297 at 305-306:-

obligation to give particulars simply to give to the officer who has been charged, in advance of the hearing, copies of all of the documents to be

tendered against him. The Board says that the plaintiff knew what his duties were. The documents, it is said, identified for the plaintiff the complaints which had been made to the department concerning the way in which his district office had operated. He should therefore, it is said, be able to work out for himself what case he had to meet.

In my view, this somewhat cavalier attitude is quite wrong…

There may be any number of bases for the charge against the plaintiff in such circumstances. It may be that the plaintiff was vicariously responsible for the acts or omissions of a subordinate of which he had no knowledge and of which he was not expected to have any such knowledge. It may be that he was personally responsible by reason of some act of his own. It may be that he was personally responsible by reason of some omission of his own — which in turn could be an omission to train or to supervise his subordinates, were doing or as to what they had omitted to do. Or it may be that, with knowledge of the conduct or misconduct of his subordinates, the plaintiff failed to take correcting action. It is only by knowing precisely the basis upon which the Board has charged the plaintiff that he can properly prepare for the

hearing. And it is only with such knowledge that both he and the Board (or its delegate) can determine what material is relevant to the case made against him and thus admissible in evidence.

113 Mr Lovas referred also to an observation by Moffitt P in Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 5. Here, the President expressed disapproval of the Law Society’s action in failing to provide particulars of a question that it put before the Solicitors’ Statutory Committee in disciplinary proceedings. Instead, the Law Society had left the matter ‘to be discerned from the evidence’ (which included, his Honour said, ‘a mountainous volume of documentary evidence’).

114 A further authority cited by Mr Lovas was a short passage in the Tribunal’s judgment in Legal Services Commissioner v Ball [1999] NSWADT 45. It related to a statement in the Commissioner’s answer to a request for particulars that the relevant information could be ascertained from documents that included an affidavit filed by the Commissioner. The Tribunal said, at [27]:-

With respect, that is simply not a proper answer to a request for particulars. Not only should inadmissible material not be put before a court or tribunal… but it is quite inappropriate and in our view improper to put the burden upon the legal practitioner to somehow divine from a bundle of material the precise allegation that is being made.

115 Mr Lovas submitted that the Law Society adopted this improper approach in stating as follows in its replies to Question 13:-

First Reply

Further Reply: The Respondent’s submission that the final paragraph of the Applicant’s response of 23 April 2007 is an “unlawful” method of providing particulars is otiose.

116 Ms Webster did not specifically address these issues in her submissions.

117 In my opinion, no question can be raised regarding the general principles relied on by Mr Lovas in this context. I conclude therefore that the ‘global reference’ made to the filed affidavits in the two statements made by the Law Society in its replies to Question 13 is indeed inappropriate. Given the nature of Question 13 (it was a request that the Law Society should ‘kindly particularise’ any ‘statute, regulation or rule’ allegedly contravened by the Solicitor), I find it difficult to see how anything contained in these affidavits could in fact be of assistance. This is accordingly a question regarding which the Solicitor is legitimately entitled to an answer providing further particulars.

Raising fresh substantive allegations in the particulars provided

118 The sixth and final defect in the Particulars asserted by Mr Lovas was that in the Further Reply the Law Society had raised fresh substantive allegations, which themselves required further particularisation.

119 According to Mr Lovas, two fresh substantive allegations were raised in the following passage in the Further Reply to Question 9:-

It is not for the Applicant to tell the Respondent how to prepare loan documentation so as to properly secure the rights of the various parties.

120 Neither Mr Lovas nor Ms Webster cited any authority bearing on this question. Ms Webster did not specifically address the claim that fresh allegations had been raised in this section of the Particulars.

121 I agree with Mr Lovas that in the first sentence of the quoted passage, the Law Society alleged for the first time that there was a ‘holding out’ by the Solicitor. But as Mr Lovas’s submissions effectively acknowledged, the existence and the content of any such ‘holding out’ are factual matters inextricably linked with another matter already dealt with, namely, whether the Solicitor is alleged to have breached any term (express or implied) contained in any of his retainers by the clients involved. The further particulars on this question to which I have held the Solicitor to be entitled (see [73]) should include particulars of any alleged ‘holding out’.

122 As to the second sentence of this passage, I do not accept Mr Lovas’s claim that it raised any fresh substantive issues. In my opinion, paragraphs 3 and 30 of the particulars to Grounds A(1) – A(3) of the Disciplinary Application clearly put into question the adequacy of the loan documentation that the Solicitor allegedly prepared.

The contention that these proceedings should be dismissed or stayed

123 As indicated at the commencement of this judgment, the principal order sought in the Notice of Motion was that the Disciplinary Application should be dismissed or permanently stayed.

124 The Solicitor’s submissions. Mr Lovas pointed out that by virtue of section 73(5)(h) of the ADT Act, the Tribunal had power at any stage of proceedings to dismiss them on the ground that they are frivolous or vexatious or otherwise misconceived or lacking in substance.

125 In arguing that an order under this provision was warranted in the present case, Mr Lovas maintained that the Law Society’s refusal to respond adequately to the Solicitor’s two requests for further particulars amounted to ‘drawing a line in the sand’. He pointed to passages in the Particulars where the Law Society indicated (in his submission) that it was not prepared to give proper assistance to the Solicitor. These were to be found, he said, in the Further Reply to Questions 5, 6, 7, 9 and 13.

126 Mr Lovas relied here on Johnson v Miller (1937) 59 CLR 467 and Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297. In both of these cases, the remedy granted was that of dismissal of the relevant proceedings.

127 With regard to Johnson v Miller, he drew my attention to a passage in the judgment of Dixon J (at 491) where his Honour posed the question ‘What is the consequence of a complainant’s declining to indicate which of a plurality of transactions covered by the complaint is that upon which the charge is based or upon which he relies to make out the charge?’ Dixon J answered this question as follows (at 492):-

a fortiori

128 Mr Lovas referred also to the judgment of Evatt J at 498. His Honour said:-

… at the outset of the hearing, the prosecutor may be called upon to select his charge and particularise his complaint, and… in the absence of the necessary information, and as a last resort, the court has inherent power to dismiss the complaint. Of course, if the relevant statute takes away such power from the courts of summary jurisdiction it will have to be obeyed. But in the absence of such a statute the ultimate sanction is, and must be, dismissal of the complaint. No plea can be taken, no evidence can be admitted, nothing can be done, an adjournment will be useless if a prosecutor is set upon a refusal to particularise.

129 With regard to Etherton v Public Service Board of New South Wales, Mr Lovas maintained that what the Law Society had done was ‘precisely’ what Hunt J characterised in the first paragraph of the passage quoted above at [45] as ‘quite wrong’.

130 The Law Society’s submissions. The Law Society’s response, in both written and oral submissions, was that if the Particulars were found to be defective in any respect the appropriate order was that the Society should provide further particulars.

131 In her oral submissions, Ms Webster argued, citing Legal Services Commissioner v Ball [1999] NSWADT 45 and Law Society of New South Wales v Knudsen [2003] NSWADT 178 as examples, that this was a form of order regularly made in proceedings in the Legal Services Division. She also pointed out that in Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 366, a decision on which Mr Lovas relied, the Court of Appeal held (at [79]) that where the particulars of a criminal charge were insufficient, the court should not dismiss the charge but should order the provision of further particulars.

132 Ms Webster sought to distinguish Johnson v Miller and Etherton v Public Service Board of New South Wales on the ground that in both of those cases, unlike the present case, a substantive hearing had already commenced. They had gone beyond the stage of interlocutory proceedings.

133 For these reasons, Ms Webster contended that an order dismissing or staying these proceedings would be ‘premature and extreme’.

134 My conclusions. In the course of this judgment, I have identified eight matters on which, in my opinion, the Solicitor is entitled to obtain further and better particulars. The relevant paragraphs in the judgment are these: [66], [67 – 68], [69], [71], [73], [98], [99 – 103] and [117].

135 I agree with Mr Lovas that in relation to some of these matters, the Law Society’s statements in the Further Reply evinced an unwillingness, which I have held not to have been justified, to assist the Solicitor in his preparation of a Reply which complies with the relevant provision of the ADT Rules (as to which see [16] above). But even if this unwillingness, manifested at the time when the Further Reply was sent to the Solicitor, amounted to ‘drawing a line in the sand’, the Law Society subsequently made it quite clear, in its submissions on the Notice of Motion, that an order requiring it to provide further particulars might be made by the Tribunal and would, if made, be complied with. As pointed out above at [12], an order of this nature is a measure specifically provided for in Rule 19(2)(a) of the ADT Rules.

136 It is very much in the public interest that a Disciplinary Application, once it has been filed following the investigation required under both the past and the existing Legal Profession Act, should proceed to a hearing on the merits. If there is no determination as to whether or not professional misconduct or unsatisfactory professional conduct occurred as claimed, serious allegations regarding the professional behaviour of a legal practitioner are likely to remain untested. The public, the legal profession and, potentially, the practitioner are all disadvantaged. When these considerations are taken into account, it is, in my opinion, clear that the difficulties that have arisen with regard to particulars in this case fall well short of necessitating that the proceedings be brought to a premature conclusion.

137 For these reasons, I reject the Solicitor’s claim in the Notice of Motion that this Disciplinary Application should be dismissed or stayed on the ground that he has not been furnished with sufficient particulars. Instead, an order should be made under Rule 19(2)(a) of the ADT Rules requiring the Law Society to provide further particulars of certain matters alleged in the Application.

The orders to be made

138 With respect to the matters alleged in the Application for Original Decision filed on 15 February 2007 (‘the Application’), the Applicant is to file and serve on the Respondent, within 21 days of the date of these reasons, particulars as follows:-

(b) In relation to Ground A(1), in so far as it is alleged that conflicting interests and/or duties arose with regard to the interests of a client or clients of the Respondent, on the one hand, and the interests of the Respondent, on the other hand, indicate the nature of the interests and/or duties involved.

(c) In relation to Ground A(1), specify the date(s) on which the alleged conflict(s) of interests and/or duties arose with regard to the Grevett loan.

(d) In relation to Ground A(1), specify the date(s) on which the alleged conflict(s) of interests and/or duties ceased with regard to (i) the Grevett loan and (ii) the Hammond loan.

(e) State the following with respect to paragraph 26 of the Application: (i) whether the phrases ‘deal with’ and ‘dealt with’ are intended to mean ‘act for’ and ‘acted for’ respectively; (ii) if not, what meaning is intended; and (iii) to whom the phrase ‘all parties concerned’ refers.

(f) In Ground A(2), state the nature of the ‘interest’ that the Solicitor allegedly failed to protect.

(g) In relation to each of Grounds A(2) and B(5), (i) state whether the alleged failure of the Respondent to protect the interest of a client involved a breach of a term or terms of any agreement by which the client retained him; and (ii) with respect to any positive answer given to (i), give the usual particulars of the alleged agreement, including the term or terms allegedly breached.

(h) In relation to Ground B(5), if it is alleged that the Respondent contravened any statute, regulation or rule, identify that statute, regulation or rule.

139 In view of the Applicant’s concession (see [71] above) that the heading of Ground A(2) of the Application is erroneous, the Applicant has leave to file and serve within the same period (21 days of the date of these reasons) an Amended Application.

140 The Solicitor applied for the costs of the Notice of Motion. No argument on the question of costs was put before me. The costs are accordingly reserved.

141 These proceedings are set down for further directions at 10 a.m. on Monday 8 September 2008.

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Citations

Law Society of NSW v Orford (No 2) [2008] NSWADT 221

Most Recent Citation

Council of the Law Society of New South Wales v Harrison [2010] NSWADT 201

Cases Citing This Decision

1

Council of the Law Society of New South Wales v Harrison [2010] NSWADT 201

Cases Cited

8

Statutory Material Cited

6

Law Society of New South Wales v Orford [2007] NSWADT 134

Law Society of New South Wales v Jayawardena [2008] NSWADT 187

NSW Bar Association v Meakes [2006] NSWCA 340

CITATION:	Law Society of NSW v Orford (No 2) [2008] NSWADT 221
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT John Laurence Orford
FILE NUMBER:	072005
HEARING DATES:	2 June 2008
SUBMISSIONS CLOSED:	2 June 2008
DATE OF DECISION:	12 August 2008
BEFORE:	Chesterman M - Deputy President
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal (Interim) Rules 1998 Civil Liability Act 2002Criminal Procedure Act 1986 Legal Profession Act 1987 Legal Profession Act 2004 Public Service Act 1979
CASES CITED:	Allinson v General Council of Medical Education and Registration [1894] 1 KB 750 Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Johnson v Miller (1937) 59 CLR 467 Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 366 Law Society of New South Wales v Jayawardena [2008] NSWADT 187 Law Society of New South Wales v Knudsen [2003] NSWADT 178 Law Society of New South Wales v Orford [2007] NSWADT 134 Legal Services Commissioner v Ball [1999] NSWADT 45 Mitry v Council of the New South Wales Bar Association [2001] NSWCA 273 New South Wales Bar Association v Meakes [2006] NSWCA 340 Phillips v Disciplinary Appeal Committee of the Merit Protection and Review Agency & Anor (1994) 34 ALD 758 Sims v Wran [1984] 1 NSWLR 317
REPRESENTATION:	C A Webster, barrister R Lovas, barrister
ORDERS:	1. With respect to the matters alleged in the Application for Original Decision filed on 15 February 2007, the Applicant is to file and serve on the Respondent, within 21 days of the date of these reasons, the particulars described in paragraph [138] of these reasons 2. The Applicant has leave to file and serve, within 21 days of the date of these reasons, an Amended Application 3. The costs of this Notice of Motion are reserved 4. These proceedings are set down for further directions at 10 a.m. on Monday 8 September 2008.