Legal Services Commissioner v Musgrave

[2000] NSWADT 124

CITATION:	Legal Services Commissioner -v- Musgrave [2000] NSWADT 124
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Peter John Musgrave
FILE NUMBER:	9811
HEARING DATES:	27/07/1999, 29/11/1999, 06/03/2000
SUBMISSIONS CLOSED:	03/06/2000
DATE OF DECISION:	09/05/2000
BEFORE:	Brennan JWF - Judicial Member; Pheils J - Judicial Member; Miller PO - Member
APPLICATION:	Professional Misconduct - fail to act honestly - Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - make false statement - Professional Misconduct - mislead Court/Tribunal - Professional Misconduct - practice as a Solicitor/Barrister without a practising certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT J Needham, barrister RESPONDENT G Walsh, solicitor
ORDERS:	No orders, findings only.

1 On 27 April 1998 the Applicant, the Legal Services Commissioner (“the Commissioner”) informed the Tribunal that as a result of the Commissioner’s investigation of a complaint against the Respondent (“the legal practitioner”) that the legal practitioner while practising as a legal practitioner is guilty of professional misconduct on four grounds specified in the information. A reply to that information was filed by the legal practitioner on 30 July 1998.

2 On 20 August 1999 an amended information was filed by the Commissioner alleging six separate grounds of professional misconduct by the legal practitioner. The amended information sought the same orders and both informations detailed the claims of Samuel Alex Myers and Gweneth Audrey Myers for payment of compensation against the legal practitioner.

3 The legal practitioner in his amended reply filed on 11 November 1999 raised various defences and explanations on the other issues which are detailed below.

4 The grounds relied upon have been reasonably succinctly stated but the particulars involve a great amount of detail and they cover many facts which have to be considered in the light of the medical evidence. It appears appropriate to now detail the grounds, the particulars and the replies to assist in the analysis of the issues. Apart from medical issues except as detailed in these reasons for decision the facts were not in dispute and evidence was presented to the Tribunal to establish the facts particularised.

GROUND 1

The legal practitioner made knowingly false statements to his clients in the matter of Associates Trading Co (North Coast) Pty Limited –v- Hilti (Aust) Pty Limited.

Particulars:

5 The Legal Services Commissioner (“the Commissioner”) received a complaint from Mr SA Myers & Mrs GA Myers (“the complainants”) against Musgrave & Malcolm Lawyers, dated 20 August 1996.

6 Further correspondence between the Commissioner’s office and Mr & Mrs Myers clarified that Mr Peter Musgrave (“the legal practitioner”) was the responsible solicitor at Musgrave & Malcolm, in relation to the subject matter of the complaint.

7 In the matter of Associated Trading Co (North Coast) Pty Ltd (formerly Associated Screw (North Coast Pty Ltd) v Hilti (Aust) Pty Ltd (“the Hilti litigation”), the legal practitioner acted for the plaintiff Associated Trading Co (North Coast) Pty Ltd, a company controlled by the complainants. The legal practitioner acted for the plaintiff in the Hilti litigation from early March 1993 to about May 1996.

8 On 21 May 1993, the claim of the plaintiff in the Hilti litigation (being the complainant’s company Associated Screw (North Coast) Pty Ltd) was struck out by Grove J of the Supreme Court of NSW, as a result of there being no appearance for the plaintiff.

9 The legal practitioner did not inform the complainants that their company’s claim as plaintiff in the Hilti litigation had been struck out, and subsequently made statements to the complainants and other parties to the effect that the Hilti litigation was still continuing. Those statements are described below in Ground 2 of this information.

10 The legal practitioner wrote to the complainants a letter dated 4 December 1995. That letter stated the following:

(a) that Musgrave & Malcolm Lawyers had been unsuccessful in obtaining an order for damages for the plaintiff in the Hilti litigation
(b) that the failure of the plaintiff in the Hilti litigation was a result of a decision of the court in which it construed the terms of a written contract
(c) that the plaintiff’s case in the Hilti litigation had failed at law
(d) that Musgrave & Malcolm advised against an appeal of the court’s decision in the Hilti litigation, because the prospects for an appeal were limited.

11 As a result of the letter of 4 December 1995 and the solicitor’s other conduct described below in Ground 2 of this information, the complainants did not discover the facts described above in paragraph 4 until they attended the registry of the Supreme Court of NSW on 17 February 1997, and viewed the Court record in the Hilti litigation.

12 Each of the statements described above in paragraph 6(b), 6(c) and 6(d) above were false, in circumstances where the legal practitioner was aware of their falsehood. The statement described above in paragraph 6(a) was only true by virtue of the facts described above in paragraph 4, and was therefore knowingly misleading.

13 Each of the statements of the legal practitioner described below in paragraphs 14, 16, 18, 19 and 20 were false, in circumstances where the legal practitioner was aware of their falsehood. The legal practitioner is therefore guilty of professional misconduct.

REPLY:

1.1 The Legal Practitioner admits Particulars 1, 2, 3, 4, 5, 6 and 7 in Schedule 1 – Ground 1 of the amended information.
1.2 The Legal Practitioner says that by virtue of his then psychiatric condition the said false statements were not carried out by him knowingly.
1.3 The Legal Practitioner does not admit particulars 8, 9 in Schedule 1 – Ground 1 of the amended information.

GROUND 2

The Legal Practitioner failed to act honestly and with competence and diligence in the service of his clients in the matter of Associated Trading Co (North Coast) Pty Limited –v- Hilti (Aust) Pty Limited in breach of rule 1.1 of the Solicitors Rules.

Particulars:

14 The Applicant repeats paragraphs 1, 2 and 3 in support of Ground 2.

15 On 23 April 1993, the Hilti litigation was listed for mention before the Supreme Court of NSW. The legal practitioner was aware of this hearing date. There was no appearance for the plaintiff on this occasion, with the result that the matter was stood over to 21 May 1993.

16 On 27 April 1993, the solicitors for the defendant in the Hilti litigation informed the legal practitioner by facsimile transmission that the matter had been adjourned to 21 May 1993.

17 On 21 May 1993, the claim of the plaintiff in the Hilti litigation (being the complainants’ company Associated Screw (North Coast) Pty Ltd) was struck out by Grove J of the Supreme Court of NSW, as a result of there being no appearance for the plaintiff.

18 Prior to 2 September 1994, the legal practitioner held a conversation with the complainants in which the legal practitioner stated that a hearing date in the Hilti litigation was scheduled for a date subsequent to 2 September 1994, during a period where both complainants were to be overseas. The complainants subsequently arranged for Mr Anthony Burrell, their accountant, and Mr Phillip Myers, to appear at the hearing date described by the legal practitioner.

19 In or about September 1994, subsequent to the complainants’ departure overseas, the solicitor’s office advised Mr Burrell that the purported hearing date described above in paragraph 14 had been stood over, and so it would be unnecessary for him and Mr Phillip Myers to attend.

20 In October 1994, after the complainants returned from overseas, Mr Myers held a telephone conversation with the legal practitioner in which Mr Myers inquired as to why the case was not heard during his absence. The legal practitioner stated that because the name of the plaintiff in the Hilti litigation had changed from Associated Screw (North Coast) Pty Ltd to Associated Trading Co (North Coast) Pty Ltd, all documents relating to the case would have to be prepared again and re-lodged.

21 In or about October 1994, subsequent to the conversation referred to above in paragraph 16, the legal practitioner held a conference with the complainants and Mr Burrell. At that conference, the complainants signed a document apparently for the purpose of informing the Court of the change of name of the plaintiff in the Hilti litigation.

22 At the conference held in or about October 1994, the legal practitioner stated that Hilti (Aust) Pty Ltd had made a verbal offer of $70,000 to settle the Hilti litigation. The legal practitioner advised that the complainants should reject the offer and continue with the litigation. The complainants accepted the solicitor’s advice.

23 Between October 1994 and December 1995, the legal practitioner held a conversation with Mr Myers. In that conversation, Mr Myers inquired of the legal practitioner as to the status of the Hilti litigation. The legal practitioner replied in words to the effect that “the case will be heard shortly, the hearing has been put back”.

24 Between October 1994 and December 1995, the legal practitioner held a conversation with Mr Myers. In that conversation, Mr Myers inquired of the legal practitioner as to the status of the Hilti litigation. The legal practitioner replied in words to the effect that “the contracts have to go before a tribunal to determine whether they are worth putting before the court”.

25 In addition to the conversations referred to above at paragraph 14, 16, 17 18, 19 and 20, the complainants held a number of conversations with the legal practitioner between 21 May 1993 and 4 December 1995. The effect of those conversations was that where the complainants inquired about the Hilti litigation, the legal practitioner stated to the complainants words to the effect that the Hilti litigation was continuing.

26 By virtue of the matters referred to above in paragraphs 10 to 21 inclusive, the legal practitioner failed to act honestly, and with due competence and diligence in the service of his clients, in relation to the Hilti litigation. The legal practitioner is therefore guilty of professional misconduct.

REPLY:

1. The legal practitioner admits that he failed to act with competence and diligence, in the service of his clients in the matter.
2.1 The Legal Practitioner admits particulars 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 of Schedule 1 – Ground 2 of the amended information.
2.2 The Legal Practitioner repeats 1.2 and says that by virtue of his then psychiatric condition he did not fail to act honestly.

GROUND 3

The legal practitioner made false statements to the Commissioner in the performance of his functions under Part 10 of the Legal Professional Act, in circumstances where the statements were either knowingly false or the legal practitioner was recklessly indifferent to their truth.

Particulars:

27 The complainants’ complaint against the legal practitioner contained the allegation that the legal practitioner had improperly refused to transfer files in which the complainants or their companies had been clients of the legal practitioner. The informant repeats paragraph 3 in support of Ground 3.

28 The complainants stated that, following their decision to withdraw instructions from the legal practitioner in a number of matters, including the Hilti litigation, the legal practitioner had offered to settle all of the complainants’ outstanding accounts with Musgrave & Malcolm upon receipt of $2,500 from the complainants. The complainants had paid this sum to Musgrave & Malcolm.

29 The complainants stated that, subsequent to receiving $2,500 from the complainants, the legal practitioner wrote to the Myers’ solicitors, stating that he would not release the file in the Hilti litigation, because he was holding the file subject to a lien held by the receiver for the Myers’ previous solicitor, Mr Ed Houlton of Houlton & Co.

30 On 4 October 1996, the Commissioner’s office wrote to the legal practitioner, seeking the solicitor’s written explanation as to the basis on which he was retaining the file in the Hilti litigation.

31 The legal practitioner did not reply to the letter of 4 October 1996, except by a telephone call on 18 October 1996 in which he stated to a staff member of the Commissioner’s office that he was preparing a response.

32 On 29 October 1996, the Commissioner’s office again wrote to the legal practitioner, seeking his response to the matters raised in the office’s letter of 4 October 1996.

33 On 4 November 1996, the legal practitioner spoke with a staff member in the Commissioner’s office by telephone. In that telephone conversation, the legal practitioner stated that he was keeping the file in the Hilti litigation due to a lien arising from a bill prepared by the receiver for Mr Houlton.

34 On 21 November 1996, the legal practitioner spoke with a staff member in the Commissioner’s office by telephone. In that telephone conversation, the legal practitioner stated that he would write to the receiver for Mr Houlton, seeking its views on release of the file in the Hilti litigation.

35 On 26 November 1996, the legal practitioner spoke with a staff member in the Commissioner’s office by telephone. In that telephone conversation, the legal practitioner stated that he would write to the receiver for Mr Houlton, seeking its views on release of the file in the Hilti litigation.

36 On 28 November 1996, the Commissioner wrote to the legal practitioner. In that letter, the Commissioner stated that he did not consider it appropriate for the legal practitioner to send the file to the receiver for Mr Houlton. The Commissioner also stated that he did not wish to delay the matter further by the legal practitioner writing to the receiver. The Commissioner stated that unless the legal practitioner could provide an alternative solution or further comments, the Commissioner proposed to exercise his power under section 152(2) of the Legal Profession Act and request that the legal practitioner deliver the file in the Hilti litigation to the Myers’ current solicitors, within 72 hours.

37 On 3 December 1996, a letter dated 28 November 1996 from Musgrave & Malcolm Lawyers addressed to Messrs Duesburys was received in the Commissioner’s office. Musgrave & Malcolm’s letter dated 28 November 1996 addressed to Messrs Duesburys, stated that the file in the Hilti litigation was enclosed with the letter.

38 On 10 December 1996, the legal practitioner spoke with a staff member in the Commissioner’s office by telephone. In that telephone conversation, the legal practitioner stated that, before receiving the Commissioner’s letter to him of 28 November 1996, he had already sent the file in the Hilti litigation to the receiver, along with a letter.

39 On 10 December 1996, the legal practitioner sent to the Commissioner by facsimile transmission, a copy of the letter dated 28 November 1996 from Musgrave & Malcolm Lawyers addressed to Messrs Duesburys. The cover sheet of the solicitor’s facsimile transmission to the Commissioner stated that the letter following was “our letter of 28-11-96 to the receiver”.

40 The DX number that appears on the letter dated 28 November 1996 from Musgrave & Malcolm Lawyers to Messrs Duesburys is the DX address of a division of Deloitte Touche Tohmatsu. Mr David Lombe, the receiver for Mr Houlton, is a partner at Deloitte Touche Tohmatsu. Neither Mr Lombe nor Deloitte Touche Tohmatsu have ever received Musgrave & Malcolm’s letter dated 28 November 1996.

41 The statements made by the legal practitioner, as described in paragraphs 34, 35 and 36 above were false, in circumstances where the legal practitioner was aware of their falsehood or recklessly indifferent to their truth, in that:

the legal practitioner did not send the file in the Hilti litigation to the receiver for Mr Houlton, along with any letter of 28 November 1996 or at all; and
the legal practitioner was aware as at 28 November 1996 that the receiver for Mr Houlton was employed at Deloitte Touche Tohmatsu.

The legal practitioner is therefore guilty of professional misconduct.

REPLY

42 The Legal Practitioner does not admit that he made false statements to the Commissioner.

3.1 The Legal Practitioner admits particulars 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36.
3.2 The Legal Practitioner does not admit particulars 23 and 37.
3.3 The Legal Practitioner says that by virtue of his then psychiatric condition the conduct alleged did not occur in circumstances where it amounted to a deliberate falsehood or that he had acted recklessly and indifferently to their truth.

GROUND 4

The Legal Practitioner failed to comply with notices issued by the Commissioner under section 152(1) of the Legal Profession Act.

Particulars:

43 On 12 September 1996, the Commissioner’s office sent a letter to the legal practitioner, seeking certain information in relation to the complainants’ complaint against the legal practitioner.

44 On 4 October 1996, the Commissioner’s office sent a further letter to the legal practitioner, seeking certain information in relation to the complaint, and reminding the legal practitioner of the terms of section 152 of the Legal Profession Act.

45 On 18 October 1996, the legal practitioner telephoned the Commissioner’s office and stated that he was preparing a response to the letters of 12 September 1996 and 4 October 1996.

46 On 29 October 1996, the Commissioner’s office sent a further letter to the legal practitioner, seeking the solicitor’s response to the letters of 12 September 1996 and 4 October 1996.

47 The legal practitioner held telephone discussions with staff of the Commissioner’s office, in which he discussed the complaint, on 4 November 1996, 6 November 1996, 21 November 1996 and 26 November 1996. The legal practitioner also sent a bill by facsimile transmission to the Commissioner’s office on 6 November 1996.

48 The legal practitioner did not provide a written response to the letters described in paragraphs 38, 39 and 41 above.

49 On 18 December 1996, the Commissioner wrote to the legal practitioner, seeking information from the legal practitioner in relation to the complaint, and notifying the legal practitioner of the terms of section 152 of the Legal Profession Act.

50 On 21 January 1997 and 10 February 1997, the Commissioner wrote to the legal practitioner again, seeking information from him in relation to the complaint, and notifying the legal practitioner of the terms of section 152 of the Legal Profession Act.

51 The Commissioner served notices pursuant to section 152(1) of the Legal Profession Act by way of letters to the legal practitioner on 3 March 1997 and 8 April 1997.

52 The legal practitioner has failed without reasonable excuse to comply with notices pursuant to section 152(1) of the Legal Profession Act, and is guilty of professional misconduct.

REPLY:

4. The legal practitioner admits that he failed to comply with the notices issued by the commission under Section 152 (1) of the Legal Profession Act.

Particulars:

4.1 The Legal Practitioner admits the particulars 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 of Schedule 1 – Ground 4.

GROUND 5

The practitioner practiced as a solicitor in breach of an undertaking made to the Law Society and the Legal Services Commissioner, in circumstances where the legal practitioner had surrendered his practising certificate and had not sought renewal of his practising certificate.

Particulars:

53 The legal practitioner did not attend at the Tribunal hearing of the current information which was listed for 26 October 1998. The Commissioner’s Office was informed on 26 October 1998 that the legal practitioner was missing presumed drowned, and the hearing was adjourned.

54 In November 1998, the legal practitioner was located.

55 Musgrave & Malcolm Lawyers sent a letter dated 23 November 1998 to the Law Society, in response to a request from the Law Society, enclosing psychological reports and hospital notes prepared in November 1998 regarding the legal practitioner.

56 The Law Society sent a letter dated 1 December 1998 to Musgrave & Malcolm Lawyers, asking whether the legal practitioner was prepared to surrender his practising certificate preparatory to the Law Society taking such action as it may be advised to take under section 38A of the Legal Profession Act.

57 Musgrave & Malcolm sent a letter dated 4 December 1998 to the Law Society, stating that the legal practitioner asked whether it would be acceptable to the Law Society that no suspension or other action be taken by the Law Society pending the results of the Law Society’s inquiry under section 38A of the Legal Profession Act on the basis of the legal practitioner’s undertaking not to practice as a solicitor or barrister in the interim.

58 The Law Society sent a letter dated 14 December 1998 to Musgrave & Malcolm Lawyers acknowledging receipt of Musgrave & Malcolm’s letter of 4 December 1998.

59 The current proceedings were re-listed for a directions hearing on 5 February 1999.

60 The legal practitioner sent a letter dated 4 February 1999 to the Commissioner’s office stating that the practice of Musgrave & Malcolm had closed and that he had not acted as a solicitor since 23 October last. The legal practitioner further stated that in the interim it was not his intention to act as a legal practitioner.

61 The legal practitioner sent a letter dated 26 March 1999 to the Law Society. That letter stated as follows:

(a) That the legal practitioner had been consulting with a psychiatrist and psychologist in relation to a mental condition
(b) That with the closure of the practice Musgrave & Malcolm Lawyers all files had been handed on to either clients or their new solicitors
(c) That the legal practitioner had been advised that his mental condition will not be permanent but in the interim he had decided to surrender his current practising certificate.

That letter enclosed the legal practitioner’s current practising certificate.

62 The legal practitioner sent a letter dated 26 March 1999 to the Commissioner’s office. That letter dated as follows:

(a) that the legal practitioner had surrendered his practising certificate on medical grounds
(b) that the legal practitioner had not acted as a solicitor since 23 October last and his practice Musgrave & Malcolm Lawyers has now closed
(c) that the legal practitioner, having surrendered his practising certificate, confirmed that he has no intention to continue to practice as a solicitor
(d) that the legal practitioner was now without a current practising certificate, source of income or an asset and consequently the orders sought before the Tribunal had become redundant.

That letter enclosed the legal practitioner’s letter dated 26 March 1999 to the Law Society.

63 The Commissioner sent a letter dated 31 March 1999 to the legal practitioner acknowledging receipt of his letter dated 26 March 1999.

64 The Law Society sent a letter dated 15 April 1999 to the legal practitioner acknowledging receipt of his letter dated 26 March 1999.

65 At no time between 26 March 1999 and 27 July 1999 did the legal practitioner request that the Law Society return his practising certificate, nor did the legal practitioner apply to the Law Society for a fresh practising certificate during that time.

66 At no time between 26 March 1999 and 24 July 1999 did the legal practitioner inform the Law Society or the Commissioner’s office that he intended to engage in legal practice, or that he had engaged in legal practice.

67 The legal practitioner sent a letter dated 17 June 1999 to Peter Evans & Associates Solicitors. That letter was written on the letterhead of ‘Peter Musgrave Lawyer’, and the subject of the letter was “Hackett from Drayton’. The letter stated as follows:

(a) that the legal practitioner was instructed to proceed to effect an exchange of contracts in the matter
(b) that the purchasers’ duly executed contract was attached by way of exchange
(c) that deposit has been lodged with the selling agent.

A contract for the sale of land indicating that the legal practitioner was the purchaser’s solicitor or licensed conveyancer, was enclosed that that letter.

68 The legal practitioner engaged in legal practice from 22 June 1999 to 25 June 1999 at the practice of DA Patterson Partners. The work done by the legal practitioner at DA Patterson Partners included interpreting and advising on documents, and drafting clauses in contracts. In performing this work, the legal practitioner was acting as a solicitor.

69 The legal practitioner sent a letter dated 30 June 1999 to Peter Evans & Associates Solicitors. That letter was written on the letterhead of ‘Peter Musgrave Lawyer’, and the subject of the letter was ‘Hackett from Drayton’. The letter stated as follows:-

(a) that requisitions on title were attached with the letter
(b) the legal practitioner noted that settlement was scheduled for 16 July.

Requisitions on Title marked by the legal practitioner as being from Peter Musgrave, Purchaser’s Solicitor were enclosed with that letter.

70 The legal practitioner sent a letter dated 13 July 1999 to Peter Evans &Associates Solicitors. That letter was written on the letterhead of ‘Peter Musgrave Lawyer’, and the subject of the letter was ‘Hackett from Drayton’. The letter stated as follows:

(a) that upon receipt of a section 109 certificate the legal practitioner can submit draft settlement figures
(b) the legal practitioner refers to a party to the transaction as his clients.

71 On or shortly prior to 14 July 1999, the legal practitioner signed a Transfer Under Power of Sale under the Real Property Act 1900 on behalf of Allan William Hackett and Maureen Wilma Hackett (“the Hacketts”). The legal practitioner marked below his signature on that document such that it read “Signature of Solicitor for Transferee, P Musgrave”.

72 The legal practitioner sent a letter dated 14 July 1999 to Chapman Jones Solicitors. That letter was written on the letterhead of ‘Peter Musgrave Lawyer’, and stated as follows:-

(a) the legal practitioner acts on behalf of the Hacketts in relation to their purchase of a property
(b) the Hacketts are the clients of the legal practitioner
(c) the legal practitioner asks Chapman Jones to act as his agent on settlement
(d) the letter encloses a Contract for Sale and Transfer.

The Transfer Under Power of Sale signed by the legal practitioner was enclosed with that letter.

73 The legal practitioner sent a letter dated 19 July 1999 to Peter Evans & Associates Solicitors. That letter was written on the letterhead of ‘Peter Musgrave Lawyer’. The letter stated as follows:

(a) that the legal practitioner confirmed that his clients’ incoming mortgagee can not settle until 22 July.
(b) that amended settlement figures, revised cheque details and the section 603 Certificate issued to the legal practitioner by Coffs Harbour Council were all attached to the letter.

A Settlement Statement document and a Certificate under section 603 Local Government Act 1993 from Coffs Harbour City Council were enclosed with that letter.

74 The legal practitioner sent a letter dated 22 July 1999 to Chapman Jones Solicitors. That letter was written on the letterhead of ‘Peter Musgrave Lawyer’, and stated as follows:

(a) the legal practitioner refers to the Hacketts as his clients
(b) the legal practitioner provides instructions to Chapman Jones Solicitors regarding the steps to be taken on settlement.

75 In performing the actions specified in paragraphs 62 and 64-69 above, the legal practitioner was acting as solicitor.

76 The legal practitioner practised as a solicitor in breach of an undertaking made to the Law Society and the Legal Services Commissioner, in circumstances where he had surrendered his practising certificate and had not sought renewal of his practising certificate. The legal practitioner is accordingly guilty of professional misconduct.

Reply:

5. The practitioner admits that he practised as a solicitor in breach of an undertaking that he made to the Law Society and the Legal Services Commissioner.
5.1 The Legal Practitioner admits particulars 48-71.
5.2 The Legal Practitioner caused to be filed in the Tribunal an Affidavit sworn on 25 July 1999 disclosing that from 22 June 1999 to 25 June 1999 he had attended at the legal practice of BA Patterson & Partners and performed legal work under supervision.

GROUND 6

The Legal Practitioner misled the Administrative Decisions Tribunal on 27 July 1999.

Particulars:

77 The Informant repeats paragraphs 50-70 in support of Ground 6.

78 On 27 July 1999, the legal practitioner filed in these proceedings an affidavit sworn by the legal practitioner on 25 July 1999. That affidavit stated that from 22 June 1999 to 25 June 1999 the legal practitioner had attended at the practice of DA Patterson Partners and performed legal work under supervision.

79 At the listed hearing of these proceedings before the Tribunal on 27 July 1999, in response to a question from the presiding judicial member asking whether he was involved in any legal activity at all, the legal practitioner stated as follows:

(a) No. He has surrendered his practising certificate and not renewed his practising certificate
(b) He is in receipt of moneys from his insurance companies under their sickness benefit policies
(c) He is trying to get over his personal problems and is having treatment by a psychiatrist.

80 At the listed hearing of these proceedings before the Tribunal on 27 July 1999, the legal practitioner also stated to the presiding judicial member that he had attended in an office for a short time before 30 June 1999.

81 The statements made by the legal practitioner set out in paragraph 74 above were misleading in substance and in fact, in the following ways:

(a) the statements indicated to the Tribunal that the legal practitioner was not involved in any legal activity at all
(b) the statements failed to disclose that the legal practitioner had done legal work, in the guise of the principal of a legal practice, in the period 17 June 1999 to 22 July 1999.

The legal practitioner is accordingly guilty of professional misconduct.

Reply:

6. The Legal Practitioner denies that he misled the Administrative Decisions Tribunal on 27 July 1999.
6.1 The Legal Practitioner admits particulars 72, 73, 74, 75
6.2 The Legal Practitioner does not admit particular 76.

82 The hearing of this matter was originally scheduled to commence on 26 October 1998 on the original information. The legal practitioner was not present and indeed had disappeared from Coffs Harbour two days before. The proceedings were adjourned. The Tribunal as reconstituted in this matter has found in other proceedings against the legal practitioner that in the period of his disappearance from 24 October 1998 to 5 November 1998 he was suffering from a dissociative fugue and was not responsible for his actions in impersonating another solicitor. That finding was made in proceedings brought against the legal practitioner by the Law Society of NSW and in the course of those proceedings it was agreed that some medical and other evidence in this present suit was to be as it was admitting to evidence in those proceedings by the Law Society.

83 The proceedings were relisted for hearing on 27 July 1999 when the legal practitioner represented himself. The Tribunal on that occasion pointed out to the solicitor the perilous nature of the situation in which he found himself and with encouragement of the Tribunal the legal practitioner sought and was granted an adjournment so that he might at that late stage obtain representation. Until that first day of hearing there was no medical evidence raised and on that first hearing day basically the Commissioner’s case, with the exception of the later medical evidence of Dr Gertler, it was presented to Court and the solicitor gave evidence and was cross examined. In the course of the first day’s evidence of the legal practitioner material arose which gave rise to the allegations made in grounds 5 and 6 of the amended information. The proceedings were then adjourned.

84 The matter came again for hearing on 29 November 1999 when the solicitor was represented and the hearing concluded on March 6 2000.

85 In submission to the conclusion of the evidence Counsel for both parties indicated their agreement that it was proper for the findings of the Tribunal and the information to be dealt with separately and the question of penalty, if any, be dealt with in conjunction with determination of the penalty if any once the findings are made in the proceedings brought in relation to the legal practitioner by the Law Society. The Tribunal accepts that that was an appropriate outcome and submissions were deferred until such time as findings on the complaints in both matters could be made.

86 The reply raises the question of his psychiatric condition at the relevant time in relation to a number of the complaints. Reliance is placed upon the legal practitioner having suffered from a dissociative fugue and within that definition of psychiatric condition the Tribunal needs also to access the medical evidence in relation to the dissociation claimed generally in so far as it applies to the individual complaints list in the numbered grounds.

87 In relation to the medical evidence the Tribunal’s findings in relation to conflict between the experts is inevitably the same in both matters. The complaints however relate to difference circumstances and as the proceedings involve different complainants it is appropriate for the Tribunal to set out its assessment of that medical evidence now with such typographical amendments as are necessary to remove reference to the Law Society proceedings.

88 The evidence before the Tribunal established a particularly sad and distressing series of events which impacted heavily upon the solicitor’s life in the lead-up to his disappearance on 24 October 1998. In his first six years of practice, the solicitor worked in the Sydney area, in the course of which he was involved in a number of very distressing Family Law matters, which appears to have led to his decision to move to the country. One of those matters to which he referred was a proceeding where he secured access for a parent who, on the first exercise of that access, killed himself and his three young children. The solicitor also gave evidence of his distress before he came to Coffs Harbour in acting in a custody dispute in which there was extremely distressing evidence of sexual abuse on a young girl.

89 After a period of employment outside the metropolitan area, he was involved in litigation with his former employers when he sought to establish a practice with his ultimate partner and that litigation the solicitor took very personally and he dates the deterioration in his health from that time in about 1992.

90 The solicitor’s evidence was that, at the time of the litigation with his prior employers, he enjoyed good health, but then commenced to worry more about work and about trivial matters that had not previously worried him. He experienced mood changes and found himself staring into space and he said became depressed and experienced some impairment of concentration and memory retention. Unfortunately, at this time, and indeed up until the time of his disappearance, the solicitor did not seek any medical help. Supporting evidence of the increased stress in his life, his being quiet, withdrawn, moody and overworked was provided by his former professional partner, his wife and his former secretary.

91 Insofar as the solicitor admits some of the complaints mentioned in the information but denies on medical grounds that he is responsible in that his actions were not willful or intended, the solicitor seeks to rely upon medical evidence that he was suffering from a disassociative fugue and, insofar as that was remote in part of time from the facts of other complaints he relied upon his periods of depression and disassociation to excuse him or to minimise his responsibility.

92 Both psychiatrists gave evidence in relation to the disassociative fugue, which appears first to have been raised by Professor Montgomery, following the October 1998 incident. Dr Straton in his report of 25 February 1999 found it his diagnosis that the solicitor “did indeed suffer from a dissociative fugue and he is also suffering from an adjustment disorder with depressed mood”. In his oral evidence, Dr Straton considered the issue of malingering in this case and concluded "Yes, it was my judgment that this was a genuine case of dissociation fugue” (p88,89).

93 In evidence the standard texts of the American Psychiatric Society was referred to and an extract tendered. The definition of dissociative fugue was accepted by Dr Gertler as:

(i) Characterised by sudden loss of personal identity and of the memory of one’s entire past life, by the assumption of a new identity, and by a tendency to wander far from home to take up the new residence, occupation and life.
(ii) He also adopted from that text the description:
“the disorder usually occurs in the contact of heightened emotional tension arising from conflict in one’s personal or professional life. It may also begin after stressful exposure to civilian catastrophes or military combat. As in the other associative disorders, the process of disassociation is the central causative factor in symptom formation. It results in the exclusion from consciousness of a patient’s personal identity and memories of the past”.

94 The final sentence from the text was accepted by Dr Gertler as an extreme case.

95 Dr Gertler was engaged by the Law Society to assess the solicitor’s fitness to practise. Dr Gertler’s first report refers to the solicitor’s describing his “chronic anxiety with probably mild depression and irritability over a period of some months prior to the episode in October 1998”. From the oral evidence Dr Gertler’s record of the solicitor’s history of his difficulties is of shorter duration than the solicitor outlined to the three other experts. Dr Gertler did not consider it appropriate to make other enquiries of family or professional associates, or indeed the treating doctor, and his initial opinion relied on the answers he obtained to his questions in the initial consultation. In his opinion the solicitor did not suffer from a dissociative fuge as was the evidence of the other experts. Dr Gertler subsequently read various reports before submitting his second opinion and his views remained unchanged.

96 Dr Walker, in her report of 15 March 1999 in relation to the solicitor referred to four criteria for Dissociative Fugue transcribed from the Diagnostic and Statistic Manual of Mental Disorders of the American Psychiatric Association as follows:

(a) The predominant disturbance is sudden unexpected travel away from home or one’s customary place of work and the inability to recall one’s past;
(b) Confusion about personal identity or assumption of a new identity;
(c) The disturbance does not occur exclusively during the course of Dissociative Identity Disorder and is not due to the direct psychological effects of a substance (e.g. drug abuse, a medication) or a general mental condition (e.g. temporal lobe epilepsy);
(d) The symptoms cause clinically significant distress or impairment in social occupational or other important areas of functioning.

Dr Walker found that in relation to his October 1998 disappearance these four criteria were met. She carried out various tests and took a detailed history. She reported (p6) that other interviews “yielded spontaneous comments about minor instances of abnormal dissociation proceeding the fugue and increasing in intensity.”

97 Dr Walker on Page 6 of her report of 15 March 1999 pinpoints the fugue status as being for the period of his absence but she pointed out at that time the solicitor “continues to suffer disruption to consciousness, memory and perception in his daily life (in the form of staring into space, not attending to things people say and disruption to focus of concentration and memory)”. (p7)

98 Dr Gertler, despite the apparent typographical error in the transcript on Page 40, clearly from his cross-examination and his reports quite emphatically disagrees with the opinions of Professor Montgomery and Drs Walker and Straton that the solicitor suffered a dissociative fugue.

99 Dr Gertler rejects the finding of the dissociative fugue. Indeed his findings are inconsistent with any psychiatric illness. Dr Gertler’s views are perhaps that shown from the following three quotations from the transcript on 29 November 1999 (first at p41-42):-

Q. Is there a difference between dissociative fugue and dissociative episodes?
A. Yes. Well, a fugue really relates to a prolonged episode of disassociation. Dissociative episodes occur normally. People drive along and suddenly are aware, it is ten minutes further on and they haven’t been aware of driving. That is a type of dissociative state.
Q. But when they come out of that state they may have no recollection of what they did?
A. No. Well, they are aware that they drove, they did something, but they don’t have a recollection of driving past a certain place or through a certain town, are not aware of the passage of time.
Q. Are these dissociative states or episodes solely due to mental illness?
A. No.
Q. Are they part of any particular mental illness?
A. No.
Q. They are just normal?
A. Those types of, yes, episodes, dissociation for want after better word.
Q. So if someone was suffering from episodes of disassociation, you wouldn’t necessarily extrapolate from that that they were mentally ill?
A. That is right.
Then at page 53
Q. Were there any findings which you made or evidence which would explain his behaviour through some mental illness or otherwise?
A. I think at that time he was under stress, he was suffering from anxiety and he may have been depressed as well. He was certainly depressed in February when I saw him, but not profoundly depressed. I would explain his behaviour as relating to anxiety, not severe anxiety sufficient to lead on to dissociative fugue, but anxiety leading to certain behaviour. I don’t know whether that is --
Q. Well, it depends on the certain behaviour. Is the certain behaviour the behaviour of an automaton or behaviour that a person is likely –
A. I though it was consciously directed.
Q. You were asked questions about his memory. Did you form any view as to this man’s loss of memory of events in the past in the course of his practice? Did any issues arise in your examination of him.
A. In terms of prior to October?
Q. Correct.
A. I didn’t think there was any evidence of him suffering from a psychiatric condition severe enough to warrant or to lead to loss of memory at other times.
Q. Or of his being in a situation where he did things and didn’t know what he was doing?
A. I think he would have been aware of what he was doing at that time.
And finally p55
Q. Having read the factors set out in Dr Walker’s report, the second report, and from your observations of Mr Musgrave about which you have given evidence, are you able to give an opinion as to whether Mr Musgrave may have been suffering some psychological or psychiatric defect prior to 1997?
A. I am able to say that he was suffering from stress in his practice, anxiety, psychological rather than psychiatric.
Q. Would those factors cause a person such as Mr Musgrave not to be aware of what he was doing in the sense of writing letters or having conversations with a person, a client?
A. At the time he was doing them?
Q. Yes.
A. No.

100 Dr Walker in her report of 12 November 1999 expressed her opinion as follows:

“Mr Musgrave suffered a major dissociative episode, fugue, more than a year ago. However, in my opinion, he had been experiencing more minor episodes of dissociation for a decade before that (possibly earlier). It is most likely that his misdemeanours in his practice have resulted from his abnormal dissociation; this mechanism has permitted him partly to avoid the experience of stress, worry and guilt-feelings but has also distorted his judgment significantly at times.”

101 In the evidence of Dr Straton on 29 November 1999 (p89) which formed part of the evidence in these proceedings, the following passage deals with the other medical finding which is important to a determination of the issues before the Tribunal:

Q. And you also mentioned in your report of 25 February 1999 that he was a suffering from an adjustment disorder with depressed mood?
A. Yes.
Q. One of the issues touched upon with Dr Gertler by my learned friend was the length of time that Mr Musgrave may have been suffering from such illness.
A. Yes.
Q. Are you able to express an opinion as to how long a time, if any, he may have been suffering from a adjustment disorder with depressed mood or depression?
A. Well, some of the key symptoms that we look for in depression are things like early morning waking, at 2 or 3 in the morning, and loss of patient’s libido, loss of sex drive, and I did ask if that was the case and the answers that he gave me were that his sleep had been disturbed through early morning waking for about eighteen weeks, he had been depressed for eighteen weeks, irritable for two years and his libido had been reduced for eighteen months, and he didn’t go to social activities very much. So I drew the judgment that it was two years, from February 1997 to February 1999. In addition the history of panic attacks and chest pains in late 96 I saw as being probably the first signs.

102 There is a large amount of medical evidence before the Tribunal. On balance the Tribunal is satisfied that on the balance of probabilities the solicitor did suffer a dissociative fugue in October 1998 from approximately the time of his disappearance until some time about the time of his return to Coffs Harbour on 5 November 1998. This was an episode of illness of short duration.

103 The Tribunal also finds that the fugue was preceded for a time extending over a period of about two years in which the solicitor on the evidence suffered anxiety, increasing stress, loss of concentration but was not clinically depressed. The Tribunal is satisfied on the balance of probabilities that while these experiences may in part help to understand the solicitor’s behaviour they do not excuse his misconduct although that misconduct no doubt heightened his distress and anxiety. The Tribunal finds that prior to the onset of the dissociative fugue the solicitor did not have a condition which relieves him of responsibility for his acts.

104 The Tribunal sees its task in now dealing with the individual complaints and to balance the medical evidence against the facts as established.

105 At the hearing on 27 July 1999 Counsel for the Commissioner tendered the affidavits of Leigh Alexander Costa and Samuel Alex Myers, both of which were sworn on 27 April 1998 and also the affidavit of David John Lombe sworn 11 May 1998. The legal practitioner was given leave to file in Court affidavits by himself, his wife, Roseanne Elizabeth Musgrave, and his former partner David Strathmore Malcolm all sworn 25 July 1999 and a statutory of his former secretary Susan Murray Woods declared on 23 July 1999. Various submissions were made in the course of that day’s hearing and the legal practitioner was cross examined and the cross examination centred upon matters that are important in relation to ground 5 to which reference will be made subsequently.

106 When the hearing resumed on 29 November 1999 the Tribunal was reconstituted as Mr R Ellicott QC who had on the previous day of the hearing been the presiding judicial member was not available to continue in the matter. By consent, arrangements were made for the transcript and material that had been filed on the last occasion being read. On the second day of hearing the affidavits of Dr Gertler, Mr Shevlin, Mr Healy, Dr Wendy-Louise Walker, Dr David Stratton and a second affidavit from the legal practitioner sworn 12 November 1999 were before the Tribunal together with the amended information and the amended reply. Dr Gertler and Dr Stratton attended for cross examination and the legal practitioner was further cross examined. In the course of this second day’s hearing the legal practitioner consented to an order that he pay compensation in the sum of $10,000 to Mr & Mrs Myers.

107 The taking of oral evidence on the information was completed on 6 March 2000 when the legal practitioner’s wife and Dr Wendy-Louise Walker attended for cross examination.

GROUND 1

108 The affidavit of Samuel Alick Myers of 27 April 1998 was made up of 60 paragraphs and 46 annexures. The affidavit was admitted into evidence and Mr Myers was not required for cross examination.

109 Mr Myers’ affidavit established a disgraceful course of conduct by the legal practitioner between the time he received instructions in relation to the Hilti litigation promised to Myers in March 1993 until Mr Myers engaged Messrs Lee & Sames to act for him in relation to various matters including a claim by the legal practitioner’s firm for payment of balance of costs in the Hilti matter.

110 Mr Myers’ evidence established that between the period of March 1993 and late November early December 1995 the legal practitioner also spoke to him by telephone on a large number of occasions. During that period the legal practitioner made a whole succession of false statements to Mr Myers about the progress of the Hilti litigation and indeed what the legal practitioner claimed was the result of the proceedings. Mr Myers found out as he deposed when he visited Sydney and went to the Supreme Court registry on 17 February 1997 the proceedings had been struck out on 21 May 1993 for want of appearance and there had been no further action in the suit by the legal practitioner. Instead of seeking to restore the matter the legal practitioner persisted over a period of years with a series of totally false statements on the progress of the case, on a need to obtain new dates, the need to change documents because of a change in the company name, a listing in Sydney that stood over because the Court run out of time, another hearing said to be listed in September/October 1994 and said to have been stood over, a continuing saga of explanations of the hearing being delayed concluding ultimately in advice from the legal practitioner in late 1995 that the case had been lost. This was simply one fabrication after another.

111 In his evidence (p23 of 29 November) the legal practitioner did not dispute what Mr Myers’ had said. He said he had no recollection of ever sending the letter of 4 December 1993 but acknowledged that it bore his signature and its contents were obviously misleading and that he lied in that letter. He also acknowledged lying in a conversation with Mr Myers. He said he spoke to Mr Myers on numerous occasions and said “but I can’t recall what I said”.

112 In his affidavit of 25 July 1999 the legal practitioner acknowledges that he arranged for the defendant’s solicitor in the proceedings to attend the mention on 26 March 1993 and that advice was received from that solicitor of the adjournment to 23 April 1993. He deposes to being out of his office all day on 23 April 1993 at a local Housing Industry Association summit and does not recall any subsequent advice of the adjournment to 21 May 1993 nor advice of the matter being struck out on 21 May 1993.

113 Further in his affidavit the legal practitioner deposes to having no recollection of various conversations but does not dispute that they occurred and he does not recall the letter of 4 May 1995 and does not dispute that he sent it and that it was false.

114 The cross examination of the legal practitioner in relation to things that he was said to have done, not done, written or said are consistently through fairly lengthy period of evidence met with responses to the effect that the legal practitioner does not remember.

115 In his evidence on November 29 the legal practitioner (p62):-

Q. You say in your affidavit filed November 1999 that you were having – I will get the words that you actually used. You say you became “moody, short tempered, argumentative and just switching off”. Do you recall those words?
A. Yes.
Q. And you say this type of behaviour continued to occur constantly in 1993 right until 1998.
A. Yes, when you say “constantly” I don’t mean all the time.
Q. What do you mean?
A. There were periods when I would go through those mood swings, and periods when I seemed to not, I would be my old self.
Q. So would you say you were OK most of the time?
A. I would say I would be 50/50”
If the Tribunal accepted the evidence of the legal practitioner at face value in terms that the symptoms just described were indicative of a psychiatric condition from 1993 his evidence could not explain that the totality of his false statements to Mr Myers. When cross examined about individual matters the legal practitioner basically cannot remember. It is surprising that at page 76 he was able to volunteer a negative matter apparently from his recollection:-
Q. Is it the case that by early 1994, from your knowledge of the Court file, you would have know that the matter had by now been struck out?
A. Not necessarily. The Court had not notified me. There was no notice of change of solicitor filed, so I was not formally on the record.

The Tribunal is indeed satisfied that a correct explanation lies in paragraph 30 of the legal practitioner’s affidavit of 25 July 1999 where he said in relation to this first complaint:

“These proceedings could have been relisted either by consent or if that was not forthcoming by an appropriate application to the Court. This rather simple task was not undertaken and the explanation I offer is the fact that as from early 1993 I became depressed and as a result I distanced myself from my work adopting a “head in the sand approach” to my difficulties as was continued with me breaching section 152 of the Legal Profession Act in not responding to notices issued by the Legal Services Commissioner.”

The Tribunal does not however accept the suggestion by the legal practitioner that his judgement was clouded as a result of his mental state. There is no doubt that it is inevitable that the stress and impact upon the legal practitioner would increase with each falsehood and each misrepresentation.

116 The affidavit of the legal practitioner of 12 November 1999 has been considered by the Tribunal principally in relation to the matters relating to the legal practitioner’s evidence of his declining health and his activities around June 1999 which relate to the fifth ground. However in relation to the first and second matters there is a positive assertion in paragraph 6 in the following terms:-

“Further to paragraph 18 of my affidavit of 25 July 1999 I believe that from about 1996 my problems escalated. I knew as I sought to make clear I had mislead Mr & Mrs Myers. I was obviously embarrassed about it. Rather than face my problems and to do something that was simply positive about the situation I increasingly became depressed and couldn’t face my problems. I tried to put the Myers’ matters to “one side”. I just couldn’t cope with it. I looked at the file and it was like “reading someone else’s file”.

117 The Tribunal has considered apart from the medical evidence before it from two psychiatrics and two psychologists and has also considered the lay evidence given by the legal practitioner, his wife, his former secretary and his former legal professional partner. Consideration of matters raised in that material including the oral evidence of the wife has lead the Tribunal to find that the legal practitioner was certainly a troubled man subject to many stresses, a heavy workload and that at times he had loss of sleep, coping difficulties and felt sad and depressed. The Tribunal is not able to define that depression as a clinical depression in a medical sense but put at its highest the evidence of the legal practitioner at p62 on November 29 not that he was “OK most of the time” but rather “50/50”. This does not lead the Tribunal in any way to view him as having a mental illness at that time. He managed for five years a busy personal practice and took on the workload of his partner when his partner was ill.

118 The matters that have brought the legal practitioner before this Tribunal in the period of some five to six years before the fugue including the evidence the legal practitioner has engaged over those years in a host of other transactions which are not the subject of any disciplinary complaint. The matters before the Tribunal are very serious but it is fair to see them as numerically only a small part of the matters handled by the legal practitioner based on evidence before us. The factual situation is just not consistent with any suggestion of a continuing mental illness over a period of six years.

119 The Tribunal has accepted that the legal practitioner suffered from a dissociative fugue which expressly covered a short period from 24 October 1998 to 5 November 1998. In relation to events that occurred prior to the onset of the fugue the Tribunal finds that the legal practitioner was not on the evidence subject to a mental illness.

120 The Tribunal finds that the correct explanation for his misdeeds and his omissions prior to the fugue was that these were the result of the practitioner consciously putting aside issues and not facing the matters which required attention and action from him but rather adopting a position of “hiding his head in the sand” rather than face and deal with the issues.

121 In giving oral evidence the legal practitioner responded on many occasions that he did not remember events, conversations and actions. A large number of those conversations, events and actions were matters that he had admitted before the Tribunal. The complainant is not dependent upon the practitioner’s memory to establish the relevant material. There is ample evidence of material matters before the Tribunal apart from the evidence of the legal practitioner. These findings and comments have general application to the various contested complaints in this matter.

122 The medical evidence is inevitably based initially on the history that the legal practitioner has made to the experts concerned. It is clear that the history given in his various initial interviews particularly when facing the criminal charge arising out of his disappearance, the legal practitioner’s complaints that stress, depression and other symptoms were short term and do not seriously relate to a period prior to 1997. The legal practitioner had stress factors in his life many years before 1997 and indeed before he came to Coffs Harbour but the Tribunal does not find that there was any medical evidence which can properly support a mental illness to excuse the lies which are particularised in the first ground.

123 The Tribunal finds that this ground has been established. The conduct of the legal practitioner is most reprehensible and constitutes professional misconduct of a very serious nature. It is professional misconduct within the non-exclusive statutory definition as indeed it is in the traditional common law understanding of the term (see S127 of the Act and Allinson v The General Council of Medical Education and Registration (1894) 1QB 750 at 763).

GROUND 2

124 The Tribunal is satisfied on the evidence contained in the affidavit of Mr Myers and the annexures to that affidavit that the legal practitioner failed to act with honesty, competence and diligence in the Hilti matter. The instances of dishonesty in the legal practitioner’s dealings with his clients are extraordinarily enormous. He told his clients and their accountant of events and developments in the litigation which had not occurred and throughout the period of three years the proceedings were in fact dormant having been struck out very soon after the legal practitioner commenced to act. The legal practitioner did not on his own admission even file a notice of change of address for service. There can be no suggestion that he acted diligently after the first mention when the proceedings were adjourned for thereafter the legal practitioner did nothing except manufacture excuses and stories about the litigation.

125 Over an extended period the legal practitioner’s conduct was simply outrageous. The Tribunal has rejected the submissions by the legal practitioner that his conduct was explained by a mental illness. That is simply not so. The practitioner put these matters aside, made up stories and his conduct can only be categorised as a most serious professional misconduct.

GROUND 3

126 This ground again relates to the legal practitioner’s conduct in his dealings with Mr & Mrs Myers in relation to the Hilti litigation. This complaint deals with the practitioner’s activities following the end of the professional relationship between the practitioner and Mr & Mrs Myers in May 1996. Mr Myers’ affidavit details subsequent correspondence in relation to accounts and the efforts of his new solicitors Messrs Lee & Sames to resolve outstanding matters with the legal practitioner.

127 Annexure SAM20 to Mr Myers’ affidavit annexes the covering letter of 3 July 1996 forwarding authority for the delivery of all files and documents of Mr & Mrs Myers and their companies. The authority clearly includes the Hilti matter upon which the complaint was raised as Hilti is expressly referred to in the letter of the practitioner in reply of 17 July 1996 (SAM21). In that letter the practitioner indicates there is an outstanding account to a prior solicitor which he would need to raise with the receiver appointed for that solicitor before releasing the file.

128 These events were occurring in the context of the legal practitioner’s deception of Mr & Mrs Myers in relation to the Hilti litigation having been lost in a hearing before the Supreme Court and which deception had yet to be discovered. The actual situation of litigation did not unfold until 17 February 1997 when Mr Myers travelled to Sydney and inspected the Supreme Court file.

129 The Tribunal is satisfied that during the period from March 1996 until about the end of the year the legal practitioner took a series of steps to avoid the file coming to the hand of Mr Myers and his new advisers and that in the course of that effort he made false statements to the Commissioner who was seeking a resolution of this issue.

130 Mr Costa’s affidavit details a series of conversations and letters to the legal practitioner. Annexure LAC36 to Mr Costa's affidavit is a copy of a letter from the Commissioner to the legal practitioner canvassing the issues which the legal practitioner had raised in relation to a supposed lien in favour of his predecessor. The letter indicated that unless there was an alternate solution proposed the Commissioner would require delivery of the file to Lee & Sames and a notice would be issued within the following three days. The following exhibit LAC37 is a copy of a letter from the legal practitioner to Duesburys accountants on behalf of the prior solicitor for Mr Myers detailing the situation and purporting to enclose the file.

131 On 10 December 1996 the legal practitioner advised the Commissioner in a phone conversation that the respective letters of November 28 “must have crossed” and that he had written to the receiver and handed over the file and sent a copy of his letter to the Commissioner that day (exhibit LAC40).

132 In fact the receiver was not at Duesburys and in fact the file was not received by Duesburys. Given all the circumstances the Tribunal is satisfied that the letter was not sent to Duesburys. The receiver in fact was at Deliotte Touche Tohmatsu and the receiver caused searches to be made for the file in December 1996 and advised the Commissioner that it had been unable to locate it.

133 What really only can be described as a charade continued. There was further correspondence between the Commissioner’s office and the legal practitioner. On 7 May 1997 Stacks The Law Firm of Taree sent a further letter to the legal practitioner advising that they were now acting and requested release of all files (exhibit LAC57 of Mr Costa’s affidavit). This was followed by a reminder letter of 3 June 1997 threatening Supreme Court action the following day and that produced a response of the same date advising that all the files, 26 in total, had been available for collection by Mr Myers since May 12 1997. On June 12 Stacks wrote again to the practitioner advising that the files collected did not include the Hilti files. The following day 13 June 1997 (LAC61) the practitioner wrote to Stacks in relation to the Hilti matter in the following terms:

“We attach herewith our file and apologise for its delay as the writer was under the understanding this file had been forwarded to Mr David Lombe of Duesburys as receiver appointed for Mr Edward Houlton. Mr Houlton originally acted for Associated Screw”.

134 On cross examination (p81) the legal practitioner described the discovery of the file in the following terms:

“I can recall finding the file because I was most annoyed. We had turned the office upside down and found it in the drawer of the girl who had previously been our receptionist. It was important and I was always operating under the impression that it had been sent on”.

135 The Tribunal is unable to accept the evidence of the legal practitioner. It is satisfied on the balance of probabilities that the legal practitioner did not simply make false statements as a result of recklessness but that the statements in relation to the sending of the file to the receiver were knowingly false and were part of the legal practitioner’s efforts to hide what had happened in the Hilti proceedings.

136 The Tribunal rejects that the legal practitioner had at the relevant time a psychiatric condition. His conduct was most dishonest and disreputable and totally unacceptable for a legal practitioner. The Tribunal finds that his actions referred to in this ground constitute serious professional misconduct.

GROUND 4

137 The failure to comply with notices from the Commission under 152(1) are admitted. The facts in relation to the issue of notices is contained in the affidavit of Mr Costa. Copies of the notices dated 3 March 1997 and 8 April 1997 are respectively exhibited LAC53 and LAC55 to Mr Costa’s affidavit. In the first notice the situation was clearly set out and reasonable notice for compliance was given. The second notice afforded the legal practitioner a further reasonable opportunity to respond but there was no response. No defence arising out of the claim of psychiatric illness is raised in relation to this complaint.

138 Pursuant to section 152(4) of the Legal Profession Act failure to comply with the requirements of a notice issued under this section constitutes professional misconduct by the legal practitioner. The Tribunal finds that professional misconduct has occurred in this instance.

GROUND 5

139 Following some correspondence after the aborted hearing on 26 October 1998 the legal practitioner wrote to the Law Society on 26 March 1999 (annexure “I” to the affidavit of Simon James Healy of 31 August 1999). The term of this letter as far as the complaint is concerned is contained in the second last paragraph where the practitioner says “in the interim I have decided to surrender my current practising certificate to which I attach and confirm that I have not practised as a solicitor since 23 October last”.

140 Also on 26 March 1996 the legal practitioner gave similar advice to the Legal Services Commission (annexure “H”).

141 There is no claim or suggestion by the legal practitioner that after 26 March 1999 he sought the return of his practising certificate or advised the Society or the Commissioner that he wished to engage in legal practice or that he had engaged in legal practice.

142 In his affidavit of 25 July 1999 the legal practitioner acknowledged that he had attended the practice of DA Patterson & Partners at Wentworthville for four days between 22 June and 25 June 1999 and worked under the supervision of a solicitor, Mr Dean Patterson. Paragraph 28 goes on to say “Dean was concerned as to what had happened to me and offered his help in any way. The object was to see how I would cope returning to the environment of a legal practice and the work undertaken by me, being that of an unpaid consultant reviewing files, interpreting and advising on documentation and drafting special conditions and clauses in contracts and documents”.

143 Regrettably what the legal practitioner deposed to in his affidavit was part only of the truth and indeed what were perhaps the more serious aspects of the matter were not mentioned by him. On 27 July 1999 the Commissioner tendered various documents including and most significantly exhibit B which included the following:

(a) copy of a letter dated 14 July 1999 on a letterhead Peter Musgrave Lawyer addresses to Messrs Chapman & Jones solicitors advising that the legal practitioner was acting for Mr & Mrs Hackett in relation to the purchase of a property and detailing arrangements for settlement and enclosing a cheque for the recipients to pay the stamp duty
(b) further letter on the same type of letterhead dated 22 July 1999 to the same solicitors with detailed instructions in relation to settlement of the Hackett matter
(c) copy of the memorandum of transfer in the Hackett matter signed by the legal practitioner as solicitor for the transferee
(d) covering letter from Chapman & Jones to the Society enclosing copies of documents they had been sent
(e) copy of a letter from the legal practitioner to the Legal Services Commissioner dated 26 March 1999 confirming the surrender of his practising certificate and with a copy of his letter to the Law Society of the same date.

144 The affidavit of Simon James Healy sworn 31 August 1999 and filed the same day was before the Tribunal. In relation to this complaint annexure L was a further letter of the same Peter Musgrave Lawyer letterhead which had been dated 17 June 1999 addressed to Messrs Peter Evans & Associates in relation to the Hackett transaction. Exhibit M was a front page of the contract dated 18 June 1999 in the Hackett matter purporting to be signed by Mr & Mrs Hackett and witnessed by the legal practitioner whose name appears in the square of particulars of the contract opposite the term “purchasers solicitor/licensed conveyancer”. Annexure N is a further letter on the Peter Musgrave Lawyer letterhead to Peter Evans & Co in the Hackett matter dated 30 June 1999 enclosing requisitions on title while those requisitions showing the legal practitioner as purchasers solicitor is Annexure O. The practitioner’s letter on the same letterhead to the same solicitors dated 13 July is exhibit P while exhibit Q is a further letter to Messrs Chapman & Jones from the legal practitioner again on that same letterhead. Annexure S is a further letter from the practitioner on the same letterhead to Peter Evans & Associates of 19 July 1999.

145 The legal practitioner was cross examined in relation to the work he had undertaken and his undertaking when the matter was before the Tribunal on 27 July 1999. He said in relation to the work carried out for Mr Patterson:

“There were those matters primarily of a conveyancing nature that he had, I went through existing files that he had, and another matter that I had at the time involving purchase and refinance for a couple in Coffs Harbour by the name of Hackett”.

Q. Did you deal with Mr & Mrs Hackett directly?
A. Yes I did.
Q. In fact you have written the letters on letterhead Peter Musgrave Lawyer on 14 July and 22 July?
A. I don’t recall. I think there was one letter to them yes.
Q. I show you a letter of 14 July. I am sorry I didn’t mean to mislead you. You wrote a letter on their behalf to Chapman & Jones (shown)?
A. Yes.
Q. That is your signature on the letter?
A. Yes it is
Q. The letter of 22 July again is written by you purporting to act for Mr & Mrs Hackett?
A. Yes
Q. In acting for Mr & Mrs Hackett you were undertaking legal work?
A. Yes
Q. That was in contravention of your undertaking to the Law Society
A. I had given the undertaking – the only reason I did the work was at the suggestion of my psychiatrist. The undertaking was never acknowledged by the Law Society. I had received no correspondence back.
Q. So you are saying that having given the undertaking you felt free to ignore it?
A. Well I didn’t ignore it. The work I undertook was for no fees, it was purely an exercise suggested by my psychiatrist to see how I handled the work.
Q. But you knew that your undertaking to the Law Society and the office of the Legal Services Commissioner indicated that you did not intend to practice as a solicitor in the future?
A. I didn’t, and the only reason I did, as I said, was at the suggestion of my psychiatrist. When I gave the undertaking I had no intention of it.
Q. You didn’t inform the Law Society or Legal Services Commissioner’s office that you intended to undertake the legal work?
A. No, when I did it the contracts were exchanged before 30 June whilst I was in Sydney under supervision and the transfer document again was signed by the client on 30 June
Q. And you know that one of the aspects of being a solicitor is not to practice without a practising certificate?
A. Yes
Q. But you have done so
A. Yes, I was of the mistaken belief that I still could up to 30 June.

146 Clearly the matter of Hackett was not something only carried out over the four days work in Mr Patterson’s office. The Tribunal finds that the solicitor clearly breached his undertaking and having surrendered his practising certificate and not renewed his practising certificate practised as a solicitor. This occurred both while in Mr Patterson’s office and separately. He clearly practised as a solicitor both before 30 June 1999 and after 30 June 1999. His disclosure in his 25 July 1999 affidavit did not remedy the situation and only told part of the story. His reply mixed the facts but he seeks to rely on his affidavit of 25 July 1999 the relevant part of which has already been quoted. There is no satisfactory answer to this complaint. The Tribunal finds that this is yet another instance of totally unacceptable conduct by the legal practitioner. He has practised without a practising certificate. His explanations are not acceptable no matter how charitably one might seek to look at them. The Tribunal finds the legal practitioner guilty of professional misconduct as alleged in this ground.

GROUND 6

147 In relation to the previous ground the Tribunal has already found and described the extent of the legal practitioner’s activities as a solicitor after the surrender of his practising certificate as established in proceedings. Those facts as established have relevance to this final ground and obviously need not be repeated here. The actual evidence that gives rise to the complaint in so far as it relates to the questions raised by the presiding judicial member and the answers of the practitioner on that day are as follows:-

PRESIDING JUDICIAL MEMBER: Would you explain to us what you are doing at the moment? Are you involved in any legal activity at all?
MR MUSGRAVE: No, I surrendered my practising certificate, I have not renewed my practising certificate. I am in receipt of moneys from my insurance company under their sickness claim. So no, I am recuperating from – trying get over all my personal problems and I am having treatment by a psychiatrist.
PRESIDING JUDICIAL MEMBER: Are you prepared to undertake that you won’t engage in any legal profession activity during the adjournment?
MR MUSGRAVE: Yes, I am. As part of my treatment my psychiatrist did want to me to attend for a short time in an office before 30 June, which I did do, in relation to, if you will forgive the analogy, of when you fall off a horse, when you get back on, whether you can do it or not. I have not renewed my practising certificate, so I do not propose to undertake that work. That was a conscious decision made by me earlier on in the piece.

148 The legal practitioner in answer to these questions limits his legal professional activity in recent times to the short time before 30 June with Mr Patterson. The facts were very simply that there was substantial legal work in the Hackett matter prior to the practitioner’s going to the office of Mr Patterson and after it and into the 1999/2000 practice year. The practitioner’s evidence did not disclose the full story which was what was being sought. As appears in the material on the fifth ground consistent with responses to the presiding judicial member the legal practitioner did not when cross examined by counsel for the Commissioner on July 27 1999 disclose the full extent of his involvement in the Hackett conveyancing matter. His replies to the presiding judicial member the Tribunal finds misleading in substance and in fact in the manner detailed in particular 76.

149 The administration of justice is dependent upon the ability of courts and tribunals exercising statutory and common law jurisdictions being able to rely upon statements made to those courts and tribunals by members of the legal profession. Half truths are not sufficient and this Tribunal dealing with the professional responsibilities of legal practitioners is entitled to expect not only truth but frankness from members of the profession who appear before it. The conduct of the practitioner which gives rise to this complaint has much in common with the circumstances that lead to the other complaints. The Tribunal has no difficulty in finding the conduct proved and that it is disgraceful conduct by a legal practitioner constituting professional misconduct.

Outcome

150 The matter now stands adjourned part heard pending relisting on a date to be fixed by the Registrar for further submissions as to orders to be made. It was not possible as had originally intended for the findings to be handed down and submissions on the outcome to be made on the same day as all the relevant parties could not be brought together at the time the findings were completed.