Legal Services Commissioner v Neimanis

[2000] NSWADT 65

CITATION:	Legal Services Commissioner -v- Neimanis [2000] NSWADT 65
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Ojars Neimanis
FILE NUMBER:	992010
HEARING DATES:	23/03/2000
SUBMISSIONS CLOSED:	03/23/2000
DATE OF DECISION:	03/23/2000
BEFORE:	Clisdell RJ - Judicial Member; Greenwood J - Judicial Member; Miller PO - Member
APPLICATION:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:
REPRESENTATION:	APPLICANT M Lynch, barrister RESPONDENT In person
ORDERS:	1. Respondent be publicly reprimanded.; 2. Respondent be fined the sum of $2,000.00.; 3. Respondent provide the information sought in the section 152 notices dated 18 September 1997 and 29 January 1999 within 21 days from 23 March 2000 and, in default of compliance, the respondent's practising certificate shall be cancelled until such compliance is forthcoming.; 4. Respondent pay the costs of the applicant as agreed or assessed.; 5. Respondent allowed three months to pay the fine as per order 2 and, in default, the respondent's practising certificate shall be cancelled until the fine is paid in full.

1 These complaints came before the Tribunal as a result of the respondent’s failure to respond to correspondence from the Legal Services Commissioner.

2 On or about 27 June 1997 the applicant Commissioner received a complaint about the conduct of the respondent from the Legal Aid Commission of NSW in a matter of Joseph Jano. On 15 July 1997 the Commissioner wrote to Mr Neimanis concerning the complaint. The complaint specified that the respondent was not responding to correspondence and the Commissioner suggested that this matter could be “quickly resolved”. When the respondent failed to respond, the applicant forwarded a notice under s152 Legal Profession Act 1987, to the respondent, on 18 September, 1997.

3 The respondent responded to that notice on or about 17 October, 1997 seeking an extension of time in which to respond for 14 days. The respondent never provided a response and the applicant commenced proceedings in the Tribunal under s136(1).

4 On or about 21 April, 1998, the applicant received a further complaint from the Legal Aid Commission of NSW concerning another matter where the respondent was failing to answer correspondence (the Halvagi complaint).

5 On or about 9 November, 1998, the Commissioner wrote to the respondent seeking a response to the complaint. No response was received and the Commissioner wrote again on 22 December, 1998 seeking an answer to the complaint. On 29 January 1999 a notice under s152 was sent to the respondent. Again there was no response from the respondent and the applicant commenced proceedings in the Tribunal.

6 On the day before the hearing Mr Neimanis filed a reply and an affidavit in which he admitted the complaints. He made brief submissions as to the delays but offered no explanation or apology for his failure to answer either the applicant’s correspondence or indeed the Legal Aid Commission’s letters. He did however agree to provide a response and sought a period of 21 days in which to comply.

7 The Tribunal was satisfied that the failure to respond to the s152 notices amounted to professional misconduct. The respondent admitted as much in his affidavit.

8 In respect of penalty, Mr Lynch, for the applicant, handed to the Tribunal a summary of matters where practitioners had failed to respond to s152 notices. It is somewhat disturbing that so many practitioners are failing to fulfil their obligations as professionals, to respond promptly to correspondence from the Legal Services Commissioner or the Law Society in relation to complaints. The penalties vary from a reprimand, supervision order, fine and cancellation of a practising certificate. Mr Lynch submitted that a fine and reprimand would be appropriate. Mr Neimanis asked the Tribunal to take into account that this was the first time he had been referred to a disciplinary body in 35 years of legal practice.

9 The Tribunal was satisfied that the respondent was now contrite and that he accepted his responsibility to provide a response promptly to the Legal Services Commissioner. Notwithstanding his long unblemished record, the delays and failure to respond were inexcusable. The Tribunal was mindful that the respondent be compelled to respond to these notices or risk a cancellation of his right to practice and the orders were framed with that intent. The Tribunal was satisfied that otherwise Mr Neimanis was a competent respondent and there was no requirement for any supervision order in this matter.