Legal Services Commissioner v Veneris

[2000] NSWADT 160

CITATION:	Legal Services Commissioner -v- Veneris [2000] NSWADT 160
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT James Veneris
FILE NUMBER:	992038
HEARING DATES:	13/03/2000, 24/05/2000
SUBMISSIONS CLOSED:	05/24/2000
DATE OF DECISION:	11/10/2000
BEFORE:	Fox R - Judicial Member; Gailey C - Judicial Member; Andrews M - Member
APPLICATION:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	James Veneris 1998 4LPDR 8 Barwick -v- Law Society 2000 HCA2
REPRESENTATION:	T Lynch, barrister R Radojev
ORDERS:	Orders made on 24 May 2000:; 1. The Respondent be publicly reprimanded; 2. The Respondent be fined the sum of $2,000.00 payable within 28 days from the date of these orders; 3. The Respondent pay the costs of the Office of the Legal Services Commissioner agreed at $5,000.00 payable within 56 days from the date of these orders.; 4. The Respondent be restricted from undertaking civil litigation, but may practice family law, property relationships and criminal law; 5. That in default of orders (2) & (3) above the Respondent's Practising certificate be cancelled until compliance

1 The matter which requires determination by the Tribunal on the complaint made by the Legal Services Commissioner (“the Commissioner”), is whether the respondent, whilst practising as a solicitor, was guilty of professional misconduct of the grounds that he failed, without reasonable excuse, to comply with a notice in writing given by the Commissioner under Section 152(1) of the Legal Profession Act 1987 (“the Act”) in respect of Ms Kay Collins.

2 The affidavit of the Commissioner, sworn 14 October 1999 established that the respondent was first notified by the Commissioner, by letter dated 28 June 1999, that a complaint against him had been received from Ms Kay Collins. A copy of the complaint was enclosed with that letter.

3 Briefly, the complaint was that the respondent had failed to lodge an application for Legal Aid for the complainant’s disabled daughter to pursue a claim for compensation for physical injuries incurred by the daughter whilst participating in the Independent Living Scheme administered by the Spastic Centre of New South Wales. At the same time, she complained of the respondent’s failure to communicate and progress the claim itself and further complained of a failure to communicate of progress of a claim which she, the complainant, had made against K-Mart, both such failures subsisting over a period of nearly four years.

4 The respondent was asked for a written response within twenty-one days. The respondent did not respond and a further letter was forwarded by the Commissioner on 26 July 1999. This requested a response within fourteen days and drew the respondent’s attention to the ramifications of Section 152(1) of the Act if the respondent failed to answer this second letter.

5 When no response was received to the second letter, the Commissioner issued a Notice under Section 152(1) of the Act, on 10 August 1999 requiring that a response to Ms Collins’ complaint in the form of a statutory declaration be received by 3 September 1999. The Notice also advised that failure to comply by the specified date without reasonable excuse ‘may result in the institution of proceedings---by way of information in the Legal Services Division of the Administrative Decisions Tribunal’.

6 When the respondent failed to meet the 3 September 1999 deadline a member of the Commissioner’s staff telephoned him to inquire about the complaint. The respondent advised that he was in the course of providing the information. He was also reminded that he would need to include in his response an explanation why he had failed to comply with the Section 152(1) Notice.

7 When still no response was received following the telephone call, the Commissioner forwarded a letter to the respondent advising that a new complaint under Section 136 of the Act had been initiated and enclosing a copy of that complaint dated 20 September 1999. In this letter the respondent was asked for any comments which he might wish to make by 11 October 1999 in relation to this new complaint.

8 On receiving no response, the Commissioner determined on 14 October 1999 under Section 155 of the Act that he was satisfied that there was a reasonable likelihood that the respondent would be found guilty by the Legal Services Division of the Administrative Decisions Tribunal of unsatisfactory professional conduct or of professional misconduct in relation to the complaint ‘that the practitioner, without reasonable excuse, did fail to comply with a notice in writing under Section 152(1) of the Legal Profession Act, 1987, in respect of a complaint by Ms Kay Collins…” A letter advising the respondent of this decision together with a copy of the decision and the reasons for it, was sent on 14 October 1999.

9 The respondent’s affidavit in reply was filed at the hearing. The affidavit set out the history of his handling of both claims. He deposed that ‘because of my unfamiliarity with litigation, I took no further steps to progress the matter (and)…in 12 March 2000, I forwarded the files to Harris Leibermann Boyd, Solicitors of Wodonga’.

10 The respondent in that affidavit acknowledged that his experience and expertise in handling personal injury litigation was limited, that he had no intention of doing any personal injury litigation in the future and that for some time past, work of this nature coming to him was immediately referred to a local solicitor practising in this field.

11 He explained his delay in responding to the Commissioner’s correspondence by reference to the pressure of his rapidly expanding conveyancing practice but later in oral evidence stated that a reason for his failure to comply with the Section 152 Notice was that he panicked when he received it, he having previously appeared before the Legal Services Tribunal on a similar matter (re James Veneris 1998 4LPDR 8 (“the previous proceedings”). He was unable to offer any other explanation why he had failed to recognise the seriousness of the situation and why he had not taken any prompt action to respond.

12 We noted with concern that in the earlier proceedings the solicitor had given evidence that, apart from the matters the subject of that earlier complaint, there were no further difficulties in his practice. The present proceedings demonstrated that not to be the case.

13 We were told that, in compliance with the order in the previous proceedings, the respondent’s practice had been inspected by a visiting solicitor approximately once a month, but there was no real explanation from the respondent why the two Collins matters had not been identified and transferred to a solicitor more skilled in personal injury litigation work.

14 In his oral evidence the respondent stated that he no longer had any personal injury files, although retaining some small debt recovery work. He also testified there were no other problem matters in his litigation practice but this was little different to the respondent’s previous depositions in the previous proceedings.

15 We noted that the respondent had completed a majority of the modules of the risk management courses conducted by the Law Society of New South Wales.

16 Given this information, and given the fact that the procedure set in place following the previous proceedings had failed to result in either an identification and re-assignment of the Collins matters, or an expeditious handling of them, we were concerned that there might be other matters such as the present, as yet ‘undiscovered’, and we determined to expand our inquiry partly in the exercise of our protective function, and partly because we were inclined to allow the solicitor to continue to practice. Obviously, if it were indeed the case that, despite the previous proceedings and the supervision ordered, and despite that which was put to us in these proceedings, there were still other matters in this solicitor’s practice which were better assigned elsewhere, it would be appropriate to resolve all of those things in the orders now to be made.

17 As has been said before, the Tribunal’s proper predisposition in matters such as these is to allow the practitioner to continue to practice, but it was clear to us that the respondent’s affairs were at a turning point; if he was to continue to practise there would have to be limitations and there should be a workable regime introduced to fully investigate and monitor the type of work being performed.

18 It was with all of these matters in mind that we directed an adjournment to allow the solicitor to fully review his whole practice so that on his return he could, on the one hand, propose to us a regime of restriction which was workable for him and would leave him with a viable practice, and on the other hand would allow us to be sure that there were no other matters in his practice which would need the guidance of another hand.

19 When the matter came before us again on 24 May, the solicitor was able to say that no new difficulties had come to light. However, it was revealed to us that there were some other complaints against him which were currently being investigated by the Commissioner. Although these matters had not been fully investigated, and the Commissioner was not yet ready to make a decision whether those matters should result in an information being laid, it did appear that they were matters not dissimilar to the ones before us. It was indicated on behalf of the Commissioner that, in view of the decision of the High Court in the matter of Barwick (Barwick -v- Law Society 2000 HCA2 (3 February 2000)), the Commissioner was not prepared (even by consent) to place those matters before us, and we did not further press.

20 However, it is appropriate that we indicate that we are baffled by the suggestion that it is proper to proceed at a hearing of a matter in which it is clear that the solicitor is not at risk of being struck-off the rolls, because all the prescribed investigative procedures have been completed in proper order, whilst there are other matters relating to that solicitor still being considered and investigated. Such a process cannot be seen to be fair to the practitioner the subject of the complaint, and we are of the view that it would be proper for the Commissioner, once he has resolved to lay an information against a practitioner, if there are other matters being considered by the Commissioner in relation to that same practitioner, to offer the practitioner the opportunity of having all of those matters dealt with in the same hearing or series of hearings to achieve a full catharsis.

21 It does appear to us to be appropriate to note that it would have been preferable, in the interest generally of fairness, to both the respondent and the profession, and in proper pursuit of our protective role, for us to have to have found some way of taking these “pending” matters into account. The failure to include these pending matters raises the prospect that there might yet be further proceedings against the respondent which might set at nought the time and trouble (and not inconsiderable expense) of these proceedings.

22 As indicated previously, having reached the conclusion, as we did, that the matters now before us did not raise anything greatly different to the previous proceedings, and so did not reveal any further flaw in either the practitioner’s character or his method of conducting his practice which demanded that he not further practice, we were concerned to find a workable regime of restriction of the respondent’s right to practice. We resolved, instead of regular “outside” inspection, to rely on a regime of self-regulation, the solicitor no doubt being clearly mindful of the fact that, if it ever be demonstrated that he had sworn an affidavit in support of his application for an annual practising certificate to the effect that he had adhered to the restrictions imposed, upon it being found that this was not the truth, he would, virtually, then and there, forfeit the right to be on the rolls.

23 In lest it be said that the Tribunal was prepared to indulge a solicitor who had failed to justify the trust placed in him by the orders made in the previous proceedings, the Tribunal noted that the Commissioner proposed that the Respondent be given liberty to show cause to have the (order 4) restriction on his practising certificate lifted at any time after 12 months from the making of our orders, that being accepted by us as an indication from the investigating authority that this matter did not call for more serious punishment.

24 It also appears to us proper to observe, once again, to the profession in general that the legislature has postulated a very serious penalty for a failure to promptly and fully respond to the proper request of the Commissioner for information. Although it is not for us to speculate further, it should be noted that, had the Respondent promptly, frankly and fully responded to the Commissioner’s request for information, the whole matter might well have taken a different course.