LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BRAGG and MONACO - [2005] WASAT 217

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PRACTICE ACT 2003 (WA)

CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BRAGG and MONACO [2005] WASAT 217

MEMBER: JUSTICE M L BARKER (PRESIDENT)
MR J MANSVELD (MEMBER)
MS A LISCIA (SENIOR SESSIONAL MEMBER)

HEARD: 18 JULY 2005

DELIVERED : 19 AUGUST 2005

FILE NO/S: VR 1 of 2004

BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
GORDON HEDLEY BRAGG
Respondent

FILE NO/S :VR 15 of 2004

BETWEEN :LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
PINO MONACO
Respondent

Catchwords:

Legal practice - Legal Practitioner - Legal Practitioners Act 1893 (WA) - Outstanding administration of estate file - Whether practitioner guilty of neglect

Legislation:

Legal Practice Act 2003 (WA), Pt 12, s 3, 162, s 164(1)(f)

Legal Practitioners Act 1893 (WA), s 25(1), s 29A
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), Div 72

State Administrative Tribunal Act 2004 (WA), s 167(4)

Result:

Disciplinary proceedings against Gordon Hedley Bragg dismissed. Disciplinary proceedings against Pino Monaco dismissed.

Category: B

Representation:

VR 1 of 2004

Counsel:

Applicant: Mr B J H Goetze and Ms K Williams
Respondent: Mr M J McCusker QC

Solicitors:

Applicant: Legal Practitioners Complaints Committee
Respondent: Godfrey Virtue & Co

VR 15 of 2004

Counsel:

Applicant: Mr B J H Goetze and Ms K Williams
Respondent: Mr M J McCusker QC

Solicitors:

Applicant: Legal Practitioners Complaints Committee
Respondent: Godfrey Virtue & Co

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Maxwell v Murphy (1957) 96 CLR 261
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1990) 67 ALJR 170

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In March 2004 the Legal Practitioners Complaints Committee referred two complaints concerning the management of a file relating to the administration of a deceased estate to the Legal Practitioners Disciplinary Tribunal.
The first complaint alleged that Gordon Hedley Bragg was guilty of neglect in the course of the practice of law in respect of the administration of the deceased estate from 1986 to August 2001, in failing to attend to, or supervise, or ensure the timely administration of the estate during that period.
A second similar complaint was made against Pino Monaco. The period of his alleged neglect was stated to be from 1990 to August 2001.
The file relating to the administration of the deceased estate had a very long history. The deceased died in 1958. The file relating to the administration of the deceased estate was handled by a partner of the predecessor firm to Godfrey Virtue & Co right up until 1982. In 1982 the partner of the firm who was handling the file retired from the firm, opened a practice from his home and took the file with him. However, when he died in 1986, the file was transferred back to Godfrey Virtue.
At material times in 1986 and later the file was handled by an experienced and senior solicitor of Godfrey Virtue & Co, John Elsey. Mr Elsey had earlier been a partner in the firm, Godfrey Virtue & Co. He had retired from the partnership in 1981 but continued on as an employed solicitor.
Mr Elsey at all material times was a legal practitioners of long standing, good reputation and well‑versed in the law relating to the administration of deceased estates.
A particular difficulty relating to the winding up of the deceased estate was that the deceased's will nominated the grandson of the deceased as the principal beneficiary. Searches to locate the beneficiary had proved unfruitful over a number of years. As it transpired, the first two names of the beneficiary had been transposed in the will and for many years, in effect, the wrong person had been looked for.
Eventually in July 2000, the fact that the names of the beneficiary had been transposed was discovered by an employed junior solicitor at Godfrey Virtue & Co and soon afterwards the beneficiary was located alive and well near Albany, Western Australia. The estate was then wound up.
The Complaints Committee alleged that both Mr Bragg and Mr Monaco, as practitioners of Godfrey Virtue & Co at material times, should individually have become involved in the handling of the file when they were acquainted with particular aspects of it at various times during the periods alleged in the complaints. The Complaints Committee said that if either Mr Bragg or Mr Monaco had become involved they could have taken the steps ultimately taken in July 2000 so that the estate could have been wound up much sooner than it was. Because they had failed to become involved in the file at those times, the Complaints Committee allege they neglected the practice of the law.
The Tribunal acknowledged that much could have been done over many years, including well prior to 1986 when the file was transferred back to Godfrey Virtue & Co, to discover the whereabouts of the "missing" beneficiary.
However, the Tribunal was not satisfied in all the circumstances of the case that either Mr Bragg or Mr Monaco was guilty of neglect.
The Tribunal found the practitioners not guilty of neglect as alleged in the complaints.

References

The Legal Practice Act 2003 (WA) (the Act) currently regulates legal practice and legal practitioners in the State of Western Australia. Complaints and discipline concerning legal practitioners are governed by Part 12 of the Act. Section 162 of the Act establishes the Legal Practitioners Complaints Committee. By the Act s 164(1)(f), the functions of the Complaints Committee include the function "if the Complaints Committee considers it appropriate to do so, and whether or not it has conducted an inquiry, to institute professional disciplinary proceedings against a legal practitioner before the State Administrative Tribunal".
Prior to 1 January 2005, when the State Administrative Tribunal came into operation, s 164(1)(f) gave the Complaints Committee the same function, but provided for the institution of professional disciplinary proceedings against a legal practitioner before the Legal Practitioners Disciplinary Tribunal.
Prior to 1 January 2004, the Legal Practitioners Act 1893 (WA) governed complaints and discipline. It was repealed and replaced by the Legal Practice Act 2003 (WA).
Since 1 January 2005, pursuant to the terms of the Legal Practice Act 2003 (WA) and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) Div 72, the State Administrative Tribunal (the Tribunal) has replaced the Legal Practitioners Disciplinary Tribunal and under the State Administrative Tribunal Act 2004 (WA), s 167(4) matters that were pending before the Disciplinary Tribunal as at 1 January 2005, have been transferred to the Tribunal.
By a reference against Mr Bragg dated 11 March 2004 to the Disciplinary Tribunal instituted after the commencement of the Legal Practice Act 2003 on 1 January 2004, the Complaints Committee alleged:
"That the practitioner was guilty of neglect in the course of the practice of the law in respect of the administration of the estate of Mrs [BW] from 1986 to August 2001, in failing to attend to and/or supervise and/or ensure the timely administration of the estate of BW during that period."
At the hearing of the reference, the Complaints Committee moved to amend the allegation so that the period in question was specified as "from 1996 to August 2001".
By a reference of the same date to the Disciplinary Tribunal the Complaints Committee alleged, in the same terms, that Mr Monaco was guilty of neglect, but in respect of the period from 1990 to August 2001.
There is no question, and it was not in issue in these proceedings, that the Complaints Committee was empowered to institute the professional disciplinary proceedings under the 2003 Act in respect of the conduct that was alleged to have taken place when the 1893 Act governed legal practice.
However, the substantive law as at the date of the events in question governs whether or not the practitioner is in breach of his professional obligations: Maxwell v Murphy (1957) 96 CLR 261 at 267.
This is also clear from the provisions of the Acts Amendment and Repeal (Courts and Legal Practice) Act 2003 (WA) and s 36 and s 37 of the Interpretation Act 1984 (1984).
Hence, the events the subjects of the references are to be judged by reference to the standards and provisions set out in the Legal Practitioners Act 1893 s 29A.
As at 1 January 2005, neither reference had been heard or determined by the Disciplinary Tribunal and so each was transferred to the State Administrative Tribunal pursuant to s 167(4) of the State Administrative Tribunal Act 2004.
On 18 July 2005, the reference came on for hearing and were heard at the same time.

The practitioners' answers

Each of Messrs Bragg and Monaco filed detailed responses to the allegation of neglect and denied that they were guilty of neglect as alleged in the reference.

Particulars of allegations

Particulars of the references brought against the practitioners are similar in most respects, although they differ in relation to the periods during which the practitioners were said to have been in neglect in the course of the practice of the law. Many of the facts particularised are not disputed.
The Complaints Committee say that in 1986, Godfrey Virtue, a law firm of which (1) Mr Bragg became a partner in 1997 and was, as of 1996 an employed solicitor, and (2) of which Mr Monaco was a partner as of that date, opened a new file for the administration of the estate of the late Mrs BW, the file being entitled “Mr [C E J W]alters - re estate late [BW]”. The full name of the deceased person and Executor are not directly relevant to these disciplinary proceedings and for the sake of privacy of the family of the deceased person only her initials and those of her family members and the Executor are used in these reasons. These facts are not in dispute.
The particulars further alleged that the solicitor given the conduct of the file in 1986 was a solicitor employed by the firm (Mr John Elsey); Mr Elsey had earlier been a partner of the firm and had retired from the partnership in 1981. These facts are not in dispute.
The particulars further stated that the circumstances leading to the file being opened were as follows:
(1)Mrs BW died in 1958 and probate was granted to [CEJW] (Executor) on 22 December 1958. The executor instructed Godfrey Virtue and Boultbee (the predecessor firm to Godfrey Virtue & Co) to act for the estate.
(2)The estate consisted of a house and vacant block in Busselton, furniture, jewellery and cash. According to the will of Mrs BW, the house and vacant block was left to her grandson “Stephen John W”. The remainder of the property was left to the sons of Mrs BW, CW and GW.
(3)The grandson of Mrs BW was actually named "John Stephen W" and was born in 1951, making him about seven years of age at the time of the death of his grandmother.
(4)In or about 1961, the house and vacant block was rented to a Mr and Mrs R at a rent of three pounds per week.
(5)In 1964, Mrs BW's son, GW, died.
(6)In 1970, the Executor died intestate, that is to say, without a will.
(7)In 1970, the other son of Mrs BW, CW, also died.
(8)Between 1958 and 1982, the predecessor firm to Godfrey Virtue as well as Godfrey Virtue, acted for the estate continuously. All accounts and payment of rent were sent to Godfrey Virtue.
(9)In 1982, a former partner of the firm, Mr Craven, retired from the firm and opened a practice from his home, and took with him the file of Mrs BW's estate.
(10)Upon Mr Craven's death in 1986, the file was transferred back to Godfrey Virtue.
These facts are not materially in dispute.
The Complaints Committee further say that an examination of the file when it was transferred back to Godfrey Virtue and when a "new file" was opened by Godfrey Virtue in 1986, the file "would have shown" that:
(1)Between 1963 and 1986, the only activity on the file related to the management of the house and vacant block at Busselton; and
(2)The particular matter of administration requiring attention was to transfer of title of that property to the late Mrs BW’s grandson, John Stephen W.
The particulars further state that between 1986 and 1990 the only activity by Mr Elsey, or anyone, on the Godfrey Virtue file related to the management of the real property. Accounts continued to be paid from the funds of the estate which were held in the [firm's] trust account.
The particulars further allege that on 10 January 1990 Mr Elsey reviewed the file and made a file note summarising the position of the estate and requesting the “partners” to consider the contents of his file note and let him know what was to be done, which he gave to Mr Monaco. The Complaints Committee allege that Mr Monaco received the note, but took no action except to suggest to Mr Elsey that he endeavour to locate the appropriate beneficiary by carrying out an electoral roll search.
The particulars state that on 4 February 1991, Mr Elsey performed an electoral roll search in respect of "Stephen John W", but no such name was found on the electoral rolls.
The particulars further state that Mr Monaco took no further action in relation to the file until he received a message to telephone "Tracey" at the Shire of Busselton on 21 February 1992, with regard to outstanding rates for the land and house. This led to Mr Monaco requesting Mr Elsey to provide the file to him. It is alleged that the practitioner then took no action in relation to the file except to authorise the payment of the outstanding rates.
The particulars go on to state that on 18 June 1996, Mr Elsey conferred with Mr Bragg about what should be done on the file and that Mr Bragg took no action except to suggest that Mr Elsey do an electoral roll search and write to the Registrar of Births and Deaths in an attempt to locate the grandson.
The Committee allege that on 19 June 1996 Mr Elsey requested a second electorate roll search and that the clerk who performed the search, wrote a memo to Mr Elsey stating No Stephen John (John Stephen W ... ) and an address at a place near Albany, Western Australia. The particulars allege that no action was taken in relation to that information, even though the "John Stephen W" at the address nominated ultimately turned out to have been the correct beneficiary though this was not discovered until some years later.
The particulars further allege that on 19 June 1996, Mr Elsey wrote to the Registrar General requesting that they search their records for the birth or death of "John Stephen W". The Registrar General replied that they required their fee to be paid before any search could be conducted. The particulars claim that no action was taken in relation to that search until later on.
The particulars further state that Mr Bragg wrote a letter dated 17 December 1997 to the managing real estate agent of the property at Busselton regarding a rent increase, but otherwise took no further action in relation to the file. It is also said that an "unknown person in the firm" wrote to the managing real estate agent on 7 July 1998 regarding a rent increase.
After that period, the Complaints Committee, in its particulars, acknowledge that Mr Bragg took no further action in relation to the file.
The particulars further allege that on 11 December 1998, the firm of real estate agents who managed the Busselton property for Godfrey Virtue, sent a letter to Godfrey Virtue marked to the attention of Mr Monaco, enclosing a letter on behalf of the tenants of the property alleging that a purchase agreement in respect of the property had been entered into in 1959 and they asserted their ownership of the property. At this time, the tenants had ceased paying rent which was still fixed at $6 per week from many years earlier.
The particulars state that having received no response to their letter dated 11 December 1998, the real estate agents wrote again to Mr Monaco on 27 January and 30 July 1999.
The particulars state that on 31 May 1999 an advocate for the tenants wrote to the practitioner seeking the transfer of the title of the property at Busselton to them.
The particulars further allege that in or around July 1999 an employed junior solicitor in Godfrey Virtue assisted Mr Elsey with the conduct of the file.
Finally it is alleged that on 20 July 2000 the employed junior solicitor, or an outside clerk at the junior solicitor's request, attended the Registrar General's office to search for a birth certificate of "Stephen John W" and found an entry for "John Stephen W". He then sought the services of a process server who ascertained that the "John Stephen W" in question was the correct beneficiary under the will of the late Mrs BW. The beneficiary was thereafter contacted.
Put in its essential form, the Complaints Committee say that if either Mr Monaco or Mr Bragg at material times, when they were acquainted with the conduct of the file and the difficulty Mr Elsey was apparently having in discovering whether the beneficiary mentioned in the will was still alive and, if so, his whereabouts, had taken the action that the junior solicitor took in July 2000, the administration of the estate of the late Mrs BW would have been finalised many years earlier than it was.

The case put against Mr Bragg

As against Mr Bragg, the Complaints Committee say that, in June 1996 Mr Bragg had been a partner of the firm for nine years and Mr Elsey was an employed, albeit senior, practitioner; and that Mr Elsey had at least conferred with, if not sought directions from, Mr Bragg, as was evidenced by a file note made about that time.
The Complaints Committee contend that Mr Bragg:
(1)Neglected to get to the root of the outstanding issues in 1996 when Mr Elsey asked questions about what should be done on the file and Mr Bragg suggested an electoral roll search and birth, deaths and marriages records search;
(2) Ignored the outstanding issues completely in 1997 when Mr Elsey sought directions as to what should occur with the estate by merely seeking an increase in rent at a time when partners had to approve the firm meeting a shortfall in the estate funds;
(3)Again ignored the problem on 20 April 1998 when he authorised payment of insurance out of the firm's general account.

The case put against Mr Monaco

As against Mr Monaco, the Complaints Committee say that having been given a detailed file note dated 10 January 1990 by Mr Elsey, Mr Monaco was called upon to give Mr Elsey guidance but that Mr Monaco neglected to answer Mr Elsey's questions or to identify and deal with the issues confronting the estate and failed to properly supervise Mr Elsey’s handling of the file to ensure that those issues were identified and the estate properly administered, save to suggest an electoral roll search.
The Complaints Committee also contend that in February 1992, when Mr Monaco received a telephone message concerning the estate of the late Mrs BW, he again failed to ascertain what other issues needed to be resolved and/or to see that they were resolved at that time; and that what was required of him then, needed to be considered in light of the issues raised in Mr Elsey’s 1990 file note.
The Complaints Committee also contend that, at times, when the firm paid the shortfall on outstanding rates, taxes and insurance in respect of the property at Busselton, Mr Monaco neglected to ascertain why there was a shortfall and why the difficulties with the estate had not been dealt with. Had he done so he could have mastered the file as the junior solicitor subsequently did. In not doing so, the Committee say Mr Monaco neglected:
(1)to ensure that the estate was properly administered; and
(2)to supervise Mr Elsey.

In short, the Complaints Committee contend that in 1990 Mr Monaco neglected to get to the root of the outstanding issues when he received the file note and again neglected his responsibilities to do so after 1997 when the partners in the firm had to approve the firm meeting the shortfalls in the estate's funds.
The Complaints Committee also contend that, if Mr Monaco had checked the history and movement of funds in the trust account relating to the estate's funds, incoming correspondence, and conducted a file review of employed solicitors, he would have been alerted to the status of the estate file and become aware that Mr Elsey had not been attending to outstanding issues.

Mr Bragg's response

Mr Bragg filed a detailed response dated 16 August 2004 in the Disciplinary Tribunal in answer to the reference brought against him and at the hearing of the reference in the Tribunal gave evidence concerning the matter.
A statement of evidence of Mr John Kenneth Edward Elsey was also received into evidence. The Counsel for the Complaints Committee did not seek to cross examine Mr Elsey on his statement, primarily because Mr Elsey was unwell at the time of the hearing and considered unlikely to be able to give any useful testimony. Mr Elsey's statement of evidence, received into evidence, was made on 29 May 2003 at a time when he appears not to have been suffering from his current health problems.
As to his involvement in the conduct of the file of the estate of Mrs BW, Mr Bragg said he had very little involvement as he did not work in the area of estates and wills. In 1986 Mr Elsey, who previously had been a partner of Godfrey Virtue, was an employed solicitor of the firm. He was very experienced in handling wills and estates and had been doing this type of legal work for many years.
In January 1997 Mr Bragg said he became a partner of the firm. At that time there were six other partners.
At material times, Mr Bragg said he had no reason to question Mr Elsey's handling of the file of the estate of Mrs BW.
As to the file memo dated 10 January 1990 that Mr Elsey gave to Mr Monaco, Mr Bragg said he did not receive a copy of the file note and was not aware of it at material times.
As to the claim by the Complaints Committee that on 18 June 1996 Mr Elsey conferred with Mr Bragg and Mr Bragg failed to give him proper guidance or himself to become involved in the matter, Mr Bragg has no particular recollection of giving any advice to Mr Elsey about the file or how it should be handled.
Mr Bragg noted that the file note in question states:
"Gordon Bragg conferred with me. We have to try and find Stephen John W. GB suggests we make an electoral roll search and list the addresses of all the Stephen John W's on the file..."
He also suggest[ed] we write to Registrar of Deaths to ascertain if there is any record of the death of a Stephen John W....”
Mr Bragg said that in a small firm like Godfrey Virtue at that time, the partners and the solicitors employed by the firm would have all manner of informal conversations in the tea room or corridors, and it may well have been that Mr Elsey raised with him, in a general way, the nature of the problem he was having locating the missing beneficiary, and that he (Mr Bragg) responded in general terms to the effect noted in the file note.
As to the file note of 11 November 1997 summarising the financial status of the estate and the letter that Mr Bragg wrote to the managing estate agent dated 17 December 1997, Mr Bragg says he has no recollection of receiving the memo, but has no doubt it was given to him by Mr Elsey. Mr Bragg disputed that the memo noted that the estate funds had been extinguished. He also disputes that in the memo Mr Elsey sought his direction as to what should occur with the estate. He said there was no such request in the memo. However, he said it was likely that the memo was given to him as, at various stages, the estate did not have sufficient funds to meet continuing expenditure and the partners were required to approve payments to meet shortfalls.
Mr Bragg presumed that, in order to write the letter of 17 December 1997, Mr Elsey would have provided him with the file and, on that basis, he would have prepared the letter.
Mr Bragg says that he did have further involvement in the file after that date, notwithstanding the allegation he took no further action in relation to it. He says that Mr Elsey requested that a letter be sent to the managing agent concerning the rent and that he was involved in that matter and the ensuing claim by the tenant that they had acquired ownership of the property by agreement. He says that on 7 July 1999 Godfrey Virtue responded to those claims by indicating that they had no file records of any agreement to purchase the land and that if there was to be an enforceable agreement, that agreement must be evidenced by a written memorandum. No Supreme Court action was ever instituted after that time.
Mr Bragg said that at all times Mr Elsey maintained the control and conduct of the file relating to the estate and his only involvement related to the “conveyancing” issues identified. He says the employed junior solicitor may have written letters, although he has no specific recollection that the junior solicitor referred those letters to him for finalisation.

Mr Monaco's response

Mr Monaco filed a response dated 16 August 2004 in the Disciplinary Tribunal and also gave evidence before the Tribunal.
Mr Monaco states that in 1986 he was one of a number of partners at Godfrey Virtue. At that time Mr Elsey was an employed solicitor of the firm, having previously been a partner.
Mr Monaco, like Mr Bragg, gave evidence concerning Mr Elsey's professional practice and expertise in relation to the preparation of wills and management of estates. He said that Mr Elsey worked exclusively in the wills and probate area, including complex estate matters. He considered then, as he does now, that he was a junior in professional terms, to Mr Elsey in the area of wills and probate. He says there was never an instance in his association with Mr Elsey that led him to question Mr Elsey's professional ability and expertise in this area. He says that at all times right up to when Mr Elsey retired as a solicitor in 2002, he referred to Mr Elsey all wills and probate matters. He says all other members of the firm, including employed solicitors, did likewise. The only exceptions were in the last few years of his practice, when testamentary trusts and wills involving corporate and trust structures were referred to Mr Bragg.
Mr Monaco says, in short, that at all material times Mr Elsey had the conduct of the file relating to the estate of the late Mrs BW and had the matter in hand.
As to the Complaints Committee’s contention that he should have taken the file in hand when he received Mr Elsey's memo dated 10 January 1990, Mr Monaco said that having considered the memo he was unable to contribute to the administration of the estate and resolution of any of the probate issues outlined by Mr Elsey in the file note, but was able to discern that Mr Elsey should endeavour to locate the beneficiary and, to this end, he suggested electoral roll searches. Even though a search had previously been undertaken he considered that a more recent electoral roll search would be worthwhile. Mr Monaco says that having made this suggestion, he had no specific recollection of Mr Elsey coming back to him to advise of the outcome of those searches.
Mr Monaco says he would have remembered if Mr Elsey had come back to him with any ongoing problems concerning the beneficiary and since Mr Elsey did not come back to him, he assumed there was no longer a problem.
As to the probate complications identified in the memo, Mr Monaco says they were matters for Mr Elsey, who had conduct of the matter and was more than capable of resolving them and did not require any input or supervision from him.
Mr Monaco says he has no recollection of the file prior to receiving Mr Elsey's file memo in early 1990.
Mr Monaco also said he had no specific recollection of receiving a message to telephone "Tracey" of the Shire of Busselton on 21 February 1992.
Similarly, Mr Monaco says he has no specific recollections as to why he requested the file from Mr Elsey at about that time. However, he says it is likely that an unpaid rates demand from a local council threatening action against an estate, if rates were not paid, would be a matter for concern for the firm. Even though he did not have the conduct of the estate matter he would have appreciated that it would be a serious step if action were taken and that this may have prompted him to inquire of Mr Elsey as to what was the estate position concerning unpaid rates.
Mr Monaco recalls that Mr Elsey provided him with a copy of the more recent correspondence file and not the entire file which is very voluminous. The purpose of requesting the file was to ascertain what should be done concerning any threatened legal action.
Mr Monaco says that after discussions with Mr Elsey concerning the lack of funds to pay the rates, taxes and insurance, the Partners of the firm paid the shortfall to ensure that the requirements of the estate were met and that the estate was preserved.
Mr Monaco says that at those material times ongoing inquiries regarding the beneficiary were conducted by Mr Elsey.
Mr Monaco says that matters in 1998 concerning the claim for ownership of the property by the tenants remained in Mr Elsey's hands and that the conduct of the file was not transferred from Mr Elsey to the junior solicitor, or any other practitioner at material times, but remained with Mr Elsey.

The question of neglect

The Legal Practice Act 2003, at the date of the references and the Legal Practitioners Act 1893 (WA) prior to its replacement by the Legal Practice Act 2003, deal with the question of neglect in the practice of the law.
Under Legal Practitioners Act 1893 s 25(1) "neglect" is a specific item of conduct for which a legal practitioner may be disciplined.
Under the Legal Practice Act 2003, s 164 a legal practitioner may be disciplined for "unsatisfactory conduct", which is defined by s 3 to include neglect in the practice of the law.
As discussed earlier, the requirements of the 1893 Act apply to the conduct in question here, as the periods in question pre‑date the commencement of the 2003 Act.
In dealing with the question of neglect, the standard of proof by reference to which the complaints against the practitioners are to be judged is that discussed by Dixon J, in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361- 363; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1990) 67 ALJR 170 at 170-172. Reasonable satisfaction of proof should be established in the sense that the Tribunal must feel an actual persuasion of the occurrence or existence of a fact in issue.
It is not for the practitioner to disprove the allegations advanced against him. The onus of proving an allegation in the reference to the necessary standard rests upon the Complaints Committee.
In this case, an inordinate length of time passed between the death of Mrs BW and the grant of probate of her will in December 1958 and the discovery in the year 2000 of her grandson named as a beneficiary in her will.
One might wonder why the solicitor handling the estate file during the 28 years between 1958 and 1986 had not then taken the steps necessary to locate the grandson. Up until 1970, the sons of Mrs BW were still alive, as was the Executor of her will. Inquiries of family members during those years surely would have helped to identify the true beneficiary and discover his whereabouts.
However, the Tribunal is not required to consider these questions as the Complaints Committee has not concerned itself with the conduct of any legal practitioner prior to 1986. It is only concerned with what happened when the file relating to the estate of the late Mrs BW was returned to Godfrey Virtue. Additionally, the Committee is only concerned with the conduct of Mr Bragg and Mr Monaco, not all partners of Godfrey Virtue & Co; and not with the conduct of Mr Elsey.
The approach of the Complaints Committee has been to identify those particular partners of the firm who seem to have had some particular involvement in the conduct of the file and to contend they should have expedited the completion of the file when they came into contact with it.

Mr Bragg

Notwithstanding that great delay occurred in finding the missing beneficiary over many years, the Tribunal does not think the reference against Mr Bragg can succeed. So far as the evidence against Mr Bragg is concerned, his involvement in the file is fleeting and ephemeral. He apparently "conferred" with Mr Elsey in 1996. However, the record of that "conference" does not, when read closely, suggest that Mr Bragg had become responsible for the conduct of the file or that he did anything but respond informally to a query from Mr Elsey as to how one might go about finding the missing beneficiary. At that time, Mr Elsey claimed, in his written statement, that he was handling the file. There is nothing in Mr Bragg's conduct to suggest that he then should then have taken on the responsibility of resolving all the issues that had presented themselves in the administration of this estate file, as the Complaints Committee suggests he should have.
Similarly, there is nothing in the subsequent conduct of Mr Bragg in responding to requests for permission to pay outstanding rates, taxes and insurance, or in dealing with certain issues concerning the ownership of the Busselton property, that, in the view of the Tribunal, should have caused him, in effect, to take over the control and management of the file on those occasions. He identified the Mr Elsey had charge of the estate file and he was not called upon to action any other action in respect of it.
The Tribunal is not satisfied that the reference against Mr Bragg has been made out.

Mr Monaco

So far as the reference against Mr Monaco is concerned, the evidence suggests his involvement in relation to the file was greater. When Mr Elsey in 1990 became concerned about how the file should be progressed, he prepared a "file note" dated 10 January 1990 and gave a copy to Mr Monaco. The Complaints Committee, in essence, claim that from that point on Mr Monaco should have taken charge of the file and directed Mr Elsey in what he should do. What Mr Monaco did suggest to Mr Elsey was that he should conduct a further electoral roll search to try to find the missing beneficiary. Thereafter, Mr Monaco had intermittent contact with Mr Elsey over the matter, including authorising the payment of outstanding rates, taxes and insurance when the funds to the credit of the estate were insufficient to meet these outgoings.
While the case can be pressed that Mr Monaco should perhaps have more closely supervised the file and taken a much more interventionist role in its conduct and management than he did, the fact of the matter remains that Mr Elsey had the conduct of the file. Mr Elsey was a very experienced solicitor in the areas of estates and wills and had previously been a partner of the firm. He had practiced almost exclusively in these areas for many, many years.
The Tribunal does not have that degree of satisfaction on all the evidence that Mr Monaco neglected the proper supervision of his employee, the senior solicitor, Mr Elsey, in the conduct of the file by not becoming more closely involved in the conduct of the file.
No doubt more could have been done, and should have been done, to discover the whereabouts of the missing beneficiary. However that may be, it does not, in the Tribunal's view, mean that Mr Monaco, amongst the other partners of the firm, was guilty of neglect in the practice of the law by reason of his particular involvement in the file at various stages.
The Tribunal also bears in mind what Mr Elsey said in his statement of evidence. He was unable personally to give evidence at the hearing because of his ill‑health. Counsel for the Committee did not require to cross-examine him. Mr Elsey emphatically states that he maintained conduct of the file and did not need "guidance" or advice from either Mr Bragg or Mr Monaco. He makes the claim that, so far as he was concerned, he had not lost his way in the conduct of the file, even though he had sought advice on these questions relating to discovering the whereabouts of the beneficiary.
The Tribunal does not believe that Mr Monaco, as in Mr Bragg's case, was required to take over the conduct and management of the file on the occasions that the firm, through him, approved the payment out of the firm's account of outstanding rates, taxes and insurance relating to the property of the estate.
In circumstances where Mr Elsey had the active day to day control of the file, the Tribunal is not satisfied that the periodic involvement of Mr Bragg and Mr Monaco in relation to aspects of the file required them to step in and, in effect, exclude Mr Elsey from the conduct of the file. Each of Mr Bragg and Mr Monaco took steps and gave advice to Mr Elsey that were either discrete or appropriate in the circumstances of each case. While, in hindsight it may have assisted in the earlier resolution of matters on the file if they had chosen to become more involved, the Tribunal cannot say they were in neglect because they did not do so.

Lessons to be learned

Some lessons, however, should be drawn from these unfortunately events. Partners of firms should not overly rely on "corridor discussions" to discover what is happening in the conduct of files held by employed solicitors, including experienced employed solicitors, and other partners.
It should be thought necessary in a firm of any size for the partners to have systems in place that enable them to gain a proper understanding of what files the firm is responsible for handling and what the state of progress is of the file. In that way, timely advice might be given by a partner in relation to the conduct of a file.
A question also arises whether special supervisory procedures are required where the partners of a firm do not profess any special knowledge or skill in areas of the firm's legal practice. In this case, neither Mr Monaco nor Mr Bragg claimed any particular experience or knowledge in the law relating to probate, wills and administration. It seems no other partner in the firm did either. They relied almost exclusively on Mr Elsey to act professionally in the administration of his estate files. This was not a desirable state of affairs.
Where a firm wishes to practice in areas of the law in which the partners profess no special knowledge or skills, additional responsibilities must necessarily accrue to them if they undertake work in those areas. Ultimately, a firm might need to question whether it should continue to offer services to the public in areas of law in which the principals of the firm profess no special knowledge or skill.

Conclusion and orders

In conclusion, while there were occasions between 1990 and 2000 when Mr Monaco and Mr Bragg were brought into contact with the file relating to the deceased estate the Tribunal is not satisfied on the evidence before it that either Mr Bragg or Mr Monaco neglected the practice of the law by failing to assume the conduct or management of the file or to provide guidance to Mr Elsey, their employed solicitor, in the resolution of all issues relating to the management of the file. They were entitled, in the particular circumstances of this case, to rely on Mr Elsey, a solicitor who had practiced in areas of wills, probate and administration for over thirty years to complete the administration of the file.
However, this finding is not to say that principals of a law firm can always, without inquiry, or the giving of guidance, rely on an experienced solicitor employed by the firm in the conduct and management of a file.
The Tribunal finds each practitioner not guilty of the complaints of neglect made against them.

The Tribunal orders that:
1.In VR 1of 2004, the professional disciplinary proceedings against Gordon Hedley Bragg are dismissed.
2.In VR 15 of 2004, the professional disciplinary proceedings against Pino Monaco are dismissed.

I certify that this and the preceding [109] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT