Legal Services Commissioner v Tsolakis

[2000] NSWADT 21

CITATION:	Legal Services Commissioner -v- Tsolakis [2000] NSWADT 21
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Paul William Tsolakis
FILE NUMBER:	992006
HEARING DATES:	21/02/2000
SUBMISSIONS CLOSED:	02/21/2000
DATE OF DECISION:	03/08/2000
BEFORE:	Norton S - Judicial Member; Staff C - Judicial Member; Klika D - Member
APPLICATION:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Allinson -v- General Council of Medical Education and Registration (1894) 1 QB 750 Ganin -v- New South Wales Crime Commission & Ors 32 NSWLR 423
REPRESENTATION:	APPLICANT T M Lynch, barrister RESPONDENT T A Williams, solicitor
ORDERS:	1. The solicitor be publicly reprimanded.; 2. The solicitor be oredered to pay the costs of the applicant as aagreed or assessed.

BACKGROUND

1 By Information dated 26 March 1999 the Legal Services Commission ("the applicant") claimed that Mr Vasso Paul William Tsolakis ("the respondent") was guilty of professional misconduct on the grounds that he had, without reasonable excuse, failed to comply with a Notice in writing under Section 152 of the Legal Profession Act, 1987 ("the Act").

2 Section 152 provides:

"Powers of Council or Commissioner when investigation complaint

(1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner or interstate legal practitioner, require the legal practitioner or interstate legal practitioner to do any one or more of the following:

(a) to provide written information, by a date specified in the notice, and to verify the information by a statutory declaration,
(b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice,
(c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.


(1A) A council or the Commissioner may inspect any document produced before the Council or Commissioner under this section and may retain it for such period as the Council or commissioner thinks necessary for the purposes of an investigation in relation to which it was produced. A Council or the Commissioner may make copies of the document or any part of the document.

(2) If a legal practitioner or interstate legal practitioner against whom a complaint is made claims a lien over documents relating to the matter the subject of the complaint, the Council or the Commissioner may require the legal practitioner or interstate legal practitioner to waive the lien if satisfied it is necessary for the orderly transaction of the client's business.

(3) A requirement under this section is to be notified in writing to the legal practitioner or interstate legal practitioner and is to specify a reasonable time for compliance.

(4) A legal practitioner or interstate legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.

(5) A legal practitioner or interstate legal practitioner must not mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct.
Note. Documents has a wide meaning. The term is defined in the Interpretation Act 1987 to mean any record of information. The term would include any file that was itself a record of information."

3 By his Reply filed 11 May 1999 the respondent admitted that he had failed to comply with the Notice but denied that the failure was without reasonable excuse.

4 The information arose out of a complaint made by Mr Colin Stokes concerning the respondent's conduct in a conveyancing matter which was completed in early 1998.

5 The following dates are of relevance and were not put in issue.

6 Mr Stokes' complaint was dated 9 February 1998. The respondent was informed of the complaint by telephone on 25 February 1998. From 27 March 1998 to 20 April 1998 the respondent was absent in Nepal. On his return from Nepal the respondent commenced to live separate and apart but under the same roof from his spouse. On 21 May 1998 the office of the Legal Services Commissioner wrote to the respondent requesting a reply to their earlier letter dated 2 April 1998. By letter dated 29 May 1998 the respondent requested a copy of that letter and further details. These details were provided in a letter from the office of the Legal Services Commission dated 10 June 1998. By letter dated 7 July 1998 the respondent asked for a further 14 days to answer the letter.

7 In October 1998 the respondent left the marital home. On 2 November 1998 the office of the Legal Services Commissioner again wrote to the respondent requesting he provide information. The letter stated that if there was no response then a Notice pursuant to Section 152(1) of the Act would have to issue. On 15 December 1998 such a Notice was issued and served. It required that the respondent provide an answer by Friday 15 January 1999. By letter of 15 January the respondent requested and was granted an extension of time until 29 January 1999. There was then on 18 February 1999 a further letter from the office of the Legal Services Commission requesting the respondent to reply on or before 12 March 1999.

8 The respondent returned to his matrimonial home some time in March 1999. By letter dated 19 March 1999 the respondent was informed that proceedings would be brought against him in this Tribunal. As noted above the information was actually laid on 26 March 1999 and the respondent filed his reply on 10 May 1999. It appears that in January of 1999 the plaintiff had prepared a draft reply but this was never forwarded.

9 The complaint of Mr Stokes was dismissed on 16 July 1999.

EVIDENCE

10 The applicant relied on an affidavit of Stephen Anthony Marks sworn 30 April 1999. (Exhibit 1). There was no objection to any part of that affidavit or its annexure and the deponent was not required for cross-examination.

11 The respondent relied on an affidavit of himself sworn 20 May 1999 (Exhibit A) and 13 character affidavits (Exhibits B to O) plus two letters from Cathy Sullivan dated 24 September 1999 and 14 February 2000 together with a Certificate of Gratitude from the Australian Government (Exhibits P 1-3). There was no objection to any part of those affidavits and only the respondent was required for cross-examination.

12 The reasons for failing to comply were contained primarily within paragraph 20 of the respondent's affidavit and were repeated by him during cross-examination. In brief they were that he considered the complaint to be unjustified, he did not like the complainant, there were many pressures from his growing practice, he was demoralised by his estrangement with his wife and was busy attending not only his practice but sitting on various committees.

13 In cross-examination the respondent conceded that despite his domestic pressures he was able to attend to the normal business of his practice which continued to grow and he continued to sit on most committees although his attendance was less regular. The respondent conceded that in hindsight he could have and should have complied with the Notice.

ISSUE

14 There was no complaint made as to the form of the Notice nor the time given in that Notice for the respondent to reply. It was served some six working days before Christmas and the time for compliance was extended until 29 January 1999. The issue at the hearing was the same as the issue raised in the reply that is did the respondent have a reasonable excuse.

RESPONDENT'S SUBMISSIONS

15 On behalf of the respondent it was submitted that the onus in disciplinary proceedings rests with the applicant and that the relevant standard of proof is the Briginshaw standard of comfortable satisfaction. The Tribunal accepts these submissions.

16 The respondent then submitted that if the excuse was not accepted as reasonable the Tribunal would have no option but to find that the respondent was guilty of professional misconduct. It was submitted that the words "professional misconduct" have a meaning which has been well settled since the case of Allinson v General Council of Medical Education and Registration (1894) 1 QB 750. That is the professional misconduct must consist of behaviour which would reasonably be regarded as disgraceful and dishonourable by his or her professional brethren of good repute and competency. The submission was then made that provided the respondent's conduct in dealing with the Notice could not be said to have been disgraceful or dishonourable then the excuse should be accepted as reasonable.

17 There is no definition of reasonable excuse in the Act. Mr Williams, who appeared for the respondent, took us to a number of cases where the question of what amounts to reasonable excuse had been considered in other contexts. In particular he placed reliance on comments made by Kirby J in Ganin v New South Wales Crime Commission & Ors 32 NSWLR 423. That case dealt with the power to direct questions be answered set out in the New South Wales Crime Commission Act, 1985. It should be noted that that Act provides that failure to answer questions without reasonable excuse will attract a criminal sanction. Kirby J noted in that case that the section amounted to an inroad on fundamental rights of silence. He concluded at page 436:

"There is no apparent reason to read down exemptions for reasonable excuse in Section 18(2) of the Act. On the contrary there is every reason to give the words their ordinary construction. They simply ask whether the refusal to answer the question was 'without reasonable excuse."

18 The Tribunal accepts that the words "reasonable excuse" should be given their ordinary meaning and construction. Mr Williams also pointed out that the term "reasonable excuse" appears in a number of other places in the Act. Mr Williams then submitted that to show a reasonable excuse the respondent did not need to show that it was impossible for him to comply with the Notice and that the Tribunal should take into account more than just physical or practical difficulties. The test suggested by Mr Williams was whether taking all the circumstances into consideration was the respondent reasonably capable of complying. It was submitted that the meaning of the words "reasonable excuse" should be looked at in light of the serious consequences which flow if the excuse was not found to be reasonable.

APPLICANT'S SUBMISSIONS

19 Mr Lynch for the applicant submitted that the words should be given their normal meaning and that the section provides a method to facilitate the investigation of complaints in a timely manner. The seriousness of a failure to comply is an intended result to ensure that practitioners do co-operate. Mr Lynch submitted that it is inappropriate to reason backwards and attempt to define what is a reasonable excuse by reference to the serious consequences of the failure to provide such an excuse.

DID THE RESPONDENT HAVE A REASONABLE EXCUSE?

20 As noted above the reasonable excuse is said to be contained in paragraph 20 of the respondent's affidavit and in the matters he raised in cross-examination. The Tribunal accepts that the Allinson test sets out the common law concept of professional misconduct. We do not accept, however, that it applies to a situation when the Act provides that certain conduct amounts to professional misconduct. As there is no definition of the term "reasonable excuse" in the Act the Tribunal accepts that the words should be given their normal meaning. Mr Williams conceded that the delay from when the respondent became aware of the complaint in February 1998 till 15 December 1998 when the Notices were issued is also delay which can be taken into account. The Tribunal finds, while it has some sympathy for the respondent, in all the circumstances he did not have a reasonable excuse for not complying with the Notice. Almost all solicitors have to work under pressure, even unjustified complaints have to be investigated and there is no medical evidence to suggest that his emotional or psychological state prevented him from complying with the Notice. Indeed there is evidence that he continued to deal in a timely manner with the normal correspondence involved in the running of his practice.

21 As the respondent conceded in cross-examination he could have and should have complied with the Notice.

PENALTY

22 Mr Lynch has handed up a schedule showing the names of six cases concerning professional misconduct in failing to comply with Section 152 notices and a brief note of the penalty imposed in each case. It appeared to be common ground that a number of those cases involved more serious factual circumstances than those involved in the present case.

23 On behalf of the respondent it was submitted that the respondent has been punished enough by these proceedings and that there is really no chance that he will offend again. In those circumstances it was suggested that a private reprimand would be a sufficient punishment. On behalf of the applicant it was submitted that the respondent should be publicly reprimanded and ordered to pay a fine in the vicinity of $2,000.

24 The Tribunal has taken into account the numerous character references filed on behalf of the respondent. We also take into account that despite the fact that there was a long period of delay between February 1998 when the respondent first became aware of the complaint and May 1999 when a reply was filed there has been a marked change in attitude since that date. The actual complaint was dismissed and it appears that the respondent has filed evidence in this Tribunal in a timely manner. The Tribunal agrees with the comments made by the Chairman in the matter of Laurence John Treanor (31 August 1998). That is, it is most unfortunate that the practitioner has failed to comply with the requirements of the Act and that that has led to a consequence of a finding of professional misconduct and the whole paraphernalia of an adversarial hearing before the Tribunal.

25 In all the circumstances the Tribunal is of the opinion that having found the solicitor guilty of professional misconduct the following orders should be made:

1. The solicitor be publicly reprimanded;
2. The solicitor be ordered to pay the costs of the applicant as agreed or assessed.

26 The Tribunal does not think it appropriate in all the circumstances to impose any fine.