Margiotta v Law Society of New South Wales (no 2)

[2007] NSWADT 65

CITATION:	Margiotta v Law Society of New South Wales (no 2) [2007] NSWADT 65
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Anthony Steven Margiotta RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	052032
HEARING DATES:	16 & 17 May 2006
SUBMISSIONS CLOSED:	17 July 2006
DATE OF DECISION:	26 March 2007
BEFORE:	Karpin A - ADCJ (Deputy President); Molloy GB - Judicial Member; Fitzgerald R - Non Judicial Member
CATCHWORDS:	Review – decision to reprimand (section 540)
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336Margiotta v Law Society of New South Wales [2006] NSWADT 37NSW Bar Association v Meakes [2006] NSWCA 340Walsh v Law Society of New South Wales [1999] HCA 33Whyte v Brosch & Ors [1998] 45 NSWLR 354
REPRESENTATION:	APPLICANT M Cranitch SC RESPONDENT P Garling SC
ORDERS:	1. The finding of unsatisfactory professional conduct is confirmed.; 2. The reprimand is set aside.; 3. The applicant is cautioned ; 3. No order as to costs.

1 On 13 October 2005 the applicant filed an Application for Review of a Reviewable Decision constituted by a decision of the Professional Conduct Committee of the Law Society of New South Wales, made on 8 September 2005 in the following terms:

The Committee finds the solicitor’s failure to be of such gravity as to amount to unsatisfactory professional conduct. The Committee resolved that you be reprimanded (Section 155(3)(a) of the Legal Profession Act 1987 ).

2 That decision was communicated to the applicant by letter dated 15 September 2005.

3 The Committee’s decision flowed from findings that the applicant had failed to comply with orders of the court, and had failed to prepare a matter for hearing.

4 On 13 October 2005, the applicant filed the application presently before the Tribunal.

5 The application raises two issues: whether the conduct of the applicant in the circumstances in which it occurred amounts to unsatisfactory professional conduct; and, if it does, whether a reprimand is appropriate.

6 By decision dated 8 February 2006, Margiotta v. Law Society of New South Wales [2006] NSW ADT 37, the Tribunal made interlocutory orders that the substantive proceedings be dealt with pursuant to the provisions of s.540(5) Legal Profession Act 2004, and that the Council of the Law Society of New South Wales appear as respondent in the proceedings.

7 Section 540 Legal Profession Act 2004, relevantly provides:

540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions

(1) This section applies if:

(a) either:

(i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or
…

(b) the Commissioner or Council (as the case requires):

(i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and

(ii) is satisfied that the practitioner is generally competent and diligent, and

(iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner.

(2) The Commissioner or Council may do any or all of the following:

(a) caution the practitioner,

(b) reprimand the practitioner,

(c) …

(d) …

(3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct.

(4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint.

(5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner’s practising certificate under this section, the practitioner may apply to the Tribunal for a review of the decision.

8 Following an interlocutory decision on a jurisdictional issue (Margiotta v. Law Society of New South Wales [2006] NSWADT 37), the matter was heard over two days before the Tribunal. Evidence consisted of written materials, together with relevant material from the proceedings in the District Court, affidavits and oral evidence.

9 The findings involved the conduct of a matter in the District Court: Nastasi v. Ashfield Municipal Council [No.616 of 2002]. The applicant had carriage of the plaintiff’s case.

10 There are 2 aspects of the findings made against the applicant by the respondent: firstly that he failed to comply with orders of the court; secondly that he failed to adequately prepare the matter for hearing. The primary allegation was that the applicant failed to comply with court orders made, 2 May, 12 September, and 11 October 2002. The allegation of failure to adequately prepare the case, is substantially constituted by the allegation of failure to comply with the directions of the Court in preparation of the matter for hearing, and specifically directed to those orders made on 11 October 2002. Thus there is a considerable commonality of evidence in establishing each of those allegations.

11 The District Court proceedings commenced when the applicant filed an Ordinary Statement of Claim on 6 February 2002. The Statement of Claim was personally served on the defendant on 6 March 2002, together with a report prepared by H.L. Burn & Associates, consulting engineers, dated 30 April 2001, and medical reports of Dr. Royle Crooks dated 31 May and 19 July 2001.

12 The matter was allocated a pre-trial conference on 2 May 2002, and a status conference on 12 September 2002. The parties relied upon the standard timetable that anticipated a hearing in October/November 2002.

13 On 2 May 2002, in accordance with the agreed timetable, the court confirmed the status conference date of 12 September and ordered:

1. Plaintiff to answer request for particulars within 21 days of receipt;

2. Plaintiff to complete service of medical and expert reports 28 days before status conference;

3. Defendant to complete service of medical and expert reports 28 days before status conference.

14 The defendant’s solicitors forwarded a request for particulars by Document Exchange on 2 May, which included a request that the plaintiff’s solicitor furnish a copy of the instructions dated 27 April 2001 to Mr. HL Burn, expert witness, and provide colour copies of photographs annexed to Mr. Burn’s report, and furnish a photograph indicating the location at which the plaintiff tripped.

15 That request and the balance of the request for particulars were in what might fairly be called “standard” form. They contained nothing unusual or out of the ordinary in the management of the claim.

16 In evidence the applicant said that the delay in responding to the request for particulars was occasioned by his desire to have a portion of the reply settled by counsel. The Tribunal accepts that evidence. It is not, however, a satisfactory explanation for the delay of 5 months in responding to the majority of the particulars sought. Nor, indeed, is it an adequate excuse for the failure to respond to those matters in respect of which the reply was to be settled by counsel.

17 A conference with counsel occurred on 9 October 2002, and the applicant responded to the Request for Particulars on the following day. Included in that response was a statement a colour photograph of the accident site would be provided within 7 days. It was not.

18 In evidence the applicant was unable to give a satisfactory explanation for his failure to even contact Mr. Burn to obtain colour photographs until January 2003. His failure to provide the defendant with a marked photograph indicating the point at which his client tripped, is made more remarkable by the fact that in April 2002, on a Saturday morning, as he said, the applicant attended the accident site with Mr. HL Burn and his client. He agreed in evidence, that as a consequence of that inspection, he would have been in a position to mark a photograph to identify the point at which his client alleged she tripped. In evidence the applicant said:

Well, rightly or wrongly, I was endeavouring to obtain a photograph, which highlighted the gap between the top of the footpath and the commencement of the nature strip, and that's what I was seeking to obtain. I approached my client for a photograph, which clearly showed the difference in height between the nature strip and the bottom of the – and the top of the footpath, a number of times.

19 The applicant attended his client's home on three occasions between October and December 2002 with a view to obtaining a photograph he regarded as satisfactorily identifying the gap between the top of the footpath and the commencement of the nature strip. He was unable to obtain such a photograph.

20 The applicant did not answer the request for particulars until 10 October 2002, almost a month after the status conference on 12 September. The reply did not include the photographs requested by the defendant, although the applicant had in his possession a photograph showing the location of the plaintiff’s accident. The reply advised that a photograph would be provided within 7 days. It was ultimately furnished on 13 February 2003. The applicant did not contact Mr. Burn to provide the photographs annexed to his report, until 29 January 2003.

21 In evidence the applicant conceded that a request to provide a marked photograph of an accident site was a routine occurrence in matters of this nature. The applicant had attended the accident site in April 2001 in company with the plaintiff and Mr. HL Burn. He was in a position to provide the defendant’s solicitors with the photograph sought. The Tribunal accepts that evidence, which does not, however, explain the lengthy delay in providing a photograph, which highlighted the gap between the top of the footpath and the commencement of the nature strip, to the satisfaction of the applicant.

22 On 2 May 2002, the applicant was directed to serve medical reports upon which the plaintiff intended to rely, 28 days prior to the status conference, i.e. by mid-August 2002. The applicant had served two medical reports of Dr. R. Crooks at the time of service of the Statement of Claim. On 10 October 2002, the applicant served a report of Dr. H. Rivett dated 30 May 2001.

23 The applicant’s explanation for his failure to serve Dr. Rivett’s report in compliance with the timetable, is that he wished to consult counsel to determine whether or not this report should be relied upon. There is, however, no satisfactory explanation for the delay between the date of the report and service on the defendant.

24 The applicant requested a copy of the Concord Hospital notes on 20 September 2002, approximately one month after those notes should have been served in compliance with the timetable.

25 It was argued on behalf of the applicant that Hospital notes are not medical reports but business records, which, in the ordinary course of preparation for hearing, would be the subject of a subpoena. There is merit in that submission, although the Tribunal notes that ultimately, the applicant served the hospital records.

26 On 12 September 2002 the matter was again in the District Court list. On that day the Court made the following orders:

1. Particulars to be provided within seven days;

2. Medicals to be provided within 28 days;

3. Plaintiff to provide copy of information provided to experts within 14 days;

4. Listed to show cause 11 October 2002 at 10am.

27 The applicant's evidence is that he understood he had to provide answers to particulars requested within seven days from 12 September 2002. Somewhere between the 12th and 19th September, the applicant visited his client at her home, in order to obtain instructions to answer the request for particulars. In the course of that conversation, his client informed him that she had recently been involved in a motor vehicle accident as a consequence of which she had suffered further injury to her back.

28 The applicant identified those questions upon which he wished to seek advice from counsel as being questions 16 to 26 inclusive. He agreed that at any time after 2 May 2002, he could have answered questions 1 to 15 and 27 to 44 inclusive merely by taking instructions from his client.

29 On 20 September 2002 the applicant arranged a conference with counsel which took place on 9 October 2002.

30 The applicant arranged further medical examinations for his client: Dr. Bentivoglio, orthopaedic surgeon, on 21 October 2002, and Dr. Rivett on 16 October 2002. Clearly those appointments would not result in reports available to be served in accordance with the orders made on 12 September.

31 When the matter came on for hearing of the show cause issue on 11 October 2002, the parties agreed upon a timetable. The outstanding matters were covered by the following orders:

1.plaintiff to serve all medical reports within six weeks;

2. plaintiff to provide all qualifying material for expert and photograph of place of accident within two weeks;

3. defendant to serve any medical or expert reports within 12 weeks.

32 In addition to those orders, the court made the following orders:

4.plaintiffs Show Cause stood over to 13 February 2003 with a view to listing the matter for arbitration hearing;

5. any party who has not complied with the above orders will need to show cause by affidavit;

6. the plaintiff to pay the defendant’s costs of 11 October 2002 and 12 September 2002. The plaintiff’s solicitor is to reimburse the plaintiff for those costs.

33 The applicant did not comply with orders 1-3 inclusive of the agreed timetable.

34 At the time of agreeing to this timetable, the applicant realised that he would have to serve all medical reports upon which he proposed to rely by about 22 November 2002. He was aware that Dr Bentivoglio and Dr Puglisi, his client's general practitioner, required payment prior to releasing their reports or medical notes.

35 Within the week following the orders of the 11 October, the applicant again visited his client at her home. On that occasion, he advised her that he would require funds to obtain the medical reports. His client indicated that she was not in a financial position to do so. The applicant paid for the medical reports in February 2003.

36 On 13 February 2003 the report of Dr Bentivoglio, dated 25 October 2002 and clinical notes of the Concord Repatriation Hospital were served on the defendant, the latter having only been requested on 20 September 2002.

37 The qualifying material for the expert was not served, but the photograph of the site of the accident was served on 13 February 2003.

38 Questioned about his failure to provide the qualifying material for the expert’s report the applicant said:

I know this sounds a bit foolish, but until 13 February 2003, it didn't occur to me that the letter that I sent to Mr Burn -- a copy of the letter that I sent Mr Burn should have been provided to the defendant. It only occurred to me on the day when the matter was before his Honour Judge Garling, and his Honour, Judge Garling directed me to that particular point. I didn't realise that -- firstly, I didn't have a copy of the letter and I didn't realise that any material had been provided to the expert. I knew there was a letter was sent to him but I believed that there was no qualifying material that as(sic) provided to the expert.

39 The applicant agreed with counsel in cross-examination that in order to comply with the court order, all he needed to do was to write to the defendant within the stipulated time, advising that he had no such document. Asked why he hadn't done so, he said:

I can't explain why I didn't do that. I just had - I was just under so much pressure. I just can't explain why I didn't do that.

40 The applicant’s further evidence is that he had prepared the letter to Mr. Burn, dated 28 April 2001, at his home. He had not retained a copy. He sought a copy from Mr. Burn on 6 June 2003.

41 As a consequence of the applicant’s, failure to comply with the court's directions, when the matter was listed for a show cause hearing, the defence was unable to advise whether they would require medical or other expert evidence to be obtained because they had only been served with the final medical reports and the marked photograph, as to the latter, at 10am that day, and the former, on the previous day.

42 Whilst the applicant put to the presiding judge that the defendant was in default of the orders, specifically order 3, made on 11 October 2002, that was not a persuasive argument. Clearly, the defendant was not in a position to finally determine whether or not it required evidence of a medical or expert nature until such time as the applicant had complied with the requirement to serve his material.

43 His Honour dealt with this question, in his reserve judgment handed down on 21 February 2003. He accepted that the defendants were unable to get an expert's report, because of the plaintiff's failure to provide them with the photograph depicting where the accident had occurred, nor the material upon which the plaintiff’s expert's report was based. He accepted that the defendant could not comply with the orders, because they had agreed to those orders on the basis that the plaintiff would do certain things, which would be followed by the defendant during certain things. His Honour accepted, the defendant's arguments saying:

The problem with this case stems totally from the non-compliance with orders of the court on behalf of the plaintiff.

44 After making an order that the plaintiff's case be dismissed for want of prosecution, pursuant to the provisions of Pt 18 r.3, the presiding judge directed the Acting Registrar of the court to forward a copy of his reasons to the Legal Services Commissioner for consideration as to whether there had been any breach of the Legal Services Act.

45 The applicant does not dispute the facts relied upon by the respondent in coming to the decision under review. He concedes, as is indisputable, that on three occasions in the course of preparing the case for hearing, he failed to comply with the timetable ordered by the court, and, on each occasion, that timetable was one with which he had indicated his capacity to comply, by seeking consent orders.

46 The applicant concedes that despite realising he was unable to comply with the directions, at no time did he approach the defendant’s solicitor to advise of his difficulties and seek agreement to an amended timetable, nor did he approach the court for an amended timetable. His explanation is the pressure of work.

47 In Whyte v. Brosch & Ors [1998] 45 NSWLR 354, Spigleman CJ, with whom the other four members of a five judge bench constituted to deal with the matter, agreed, said:

The matter has been listed before a bench of five in order to emphasise, not only to the members of the profession appearing in this case, but also more widely, that the Court regards compliance with these rules to be a matter of considerable significance. Legal practitioners, both solicitors and barristers, owe duties to the court. That is what distinguishes the practice of a profession from a business or a trade or job, in so far as the legal profession is concerned. Those duties include a duty to ensure that proceedings before the court are conducted efficiently and expeditiously.

Rules of the Court … constitute an attempt by the Court to ensure that everyone knows requirements that are designed to ensure that proceedings are conducted efficiently and expeditiously and with an appropriate use of judicial resources.

48 The applicant's failure to comply with directions, on numerous occasions, is clearly conduct of the nature contemplated by the Court in Whyte v. Brosch & Ors.

49 On 13 February 2003 in accordance with orders previously made, the presiding judge heard submissions as to whether the plaintiff’s case should be dismissed for want of prosecution. He observed that it was a case that could not be managed by the Court; that it did not comply with the practice note of the court; and the defendant could not prepare for hearing.

50 In the course of proceedings on 13 February 2003, the applicant requested the presiding judge to disqualify himself from further hearing the matter on the grounds of bias. His honour declined so to do. Thereafter the applicant advised the court that he was in a position to take an arbitration or hearing date. The defendant was prepared to take a date late in the range of the dates then being allocated. The presiding judge declined to allocate a date for arbitration or hearing.

51 On 21 February 2003 his Honour handed down a reserved judgment on the question of dismissal for want of prosecution.

52 His Honour set out in some detail, the history of the matter, together with observations concerning his futile attempts to case manage it in order to have it prepared for hearing. He also pointed out the reason why Court case management is desirable and important in bringing about speedy resolution of litigation for the benefit of the parties.

53 His Honour said:

This case falls right into the category of cases we cannot manage.

Firstly, there is a failure to comply with orders of the court, not once, nor twice, but a number of times.

Secondly, there is a failure to prepare this case for hearing.

Thirdly, it has already been before this court, when I provided a very stern warning to the plaintiff that the case must be prepared for hearing.

Fourthly, other than … the problems the solicitor had within his office … and … that the plaintiff had to find money to pay the certain reports, there is absolutely no reason provided as to why the Court’s Orders were not complied with.

54 His Honour then said:

In my view, we have tried our hardest to have this case prepared for hearing, and we have not been successful and for those reasons this case must be dismissed for want of prosecution, pursuant to Pt 18 r 3 and dismissed for breaches of the rules of Court and the practice note.

The plaintiff is to pay the defendant’s costs of this case. I direct the Acting registrar of this court to take out a copy of my reasons and provide them to the Legal Services Commissioner for consideration as to whether there has been any breach of the Legal Services Act.

55 It may be inferred that the Acting Registrar complied with that direction. The Legal Services Commissioner referred the matter to the Law Society, which dealt with the complaint as set out in paragraph 1 hereof.

56 The matter of Nastisi v. Ashfield Municipal Council was ultimately restored to the list and settled on the basis that the case was dismissed and the plaintiff pay $10,000 to the defendant on account of costs. The applicant was not paid for his work, and, in addition, would appear to be out of pocket in relation to the disbursements.

57 The applicant gave evidence that he was well acquainted with the case management procedures in the District Court. He is a solicitor of 31years standing, having been admitted as a solicitor on 5 December 1975.

58 At the relevant time, the applicant and his uncle were partners in a substantial litigation practice which dealt with a large volume of personal injury matters. The solicitor’s brother, Vincent Margiotta, was an employed solicitor in the practice. The applicant had the carriage of the personal injury matters conducted in the 2 offices maintained by the practice, one at Leichhardt and the other at Cabramatta. His uncle dealt with other matters, and each of them was assisted by Vincent Margiotta.

59 In early 2002 the applicant’s uncle became seriously ill after suffering a heart attack and a stroke. He was admitted to hospital on 8 March where he was treated until discharged on 15 April 2002. Whilst he was in hospital the applicant visited his uncle every day.

60 The tribunal accepts that the applicant has a close relationship with his uncle, one which he characterizes as paternal in nature. He was deeply distressed by the illness experienced by his uncle. Despite the grave nature of that illness his uncle appears, fortunately, to have made a good recovery and was able to resume part-time work by September 2002.

61 At the time his uncle fell ill, it became necessary for the matter files which he had been handling to be distributed between the applicant and his brother.

62 The Tribunal accepts the applicant’s evidence that, as a consequence of this increased workload he was working 70-80 hours per week, and, as he put it “working harder than (he) ever had before.” The Tribunal accepts his characterization of that year as the worst year of his professional life.

63 The Tribunal accepts that as a consequence of his concern regarding the health of his uncle, his vastly increased workload, and other problems in his practice relating to his unsuccessful employment of an additional solicitor, the applicant suffered considerable stress.

64 Despite the considerable strain under which he was working, the applicant agreed to the Timetables on 2 May, 12 September and 11 October 2002, giving no indication that his overworked condition would not permit him to comply with the requirements of those timetables. Nor, when it became apparent that he was not able to comply, did he write to the defendant setting out his problems and seeking a variation of the agreed timetable. Nor did he telephone the defendant to discuss his difficulties.

65 The applicant was cross-examined at considerable length and in comprehensive detail by senior counsel for the respondent. That was entirely appropriate and necessary, because, prima facie, the Tribunal found it very difficult to comprehend how a solicitor of the applicant’s considerable experience in litigation, and his long and successful career as a practitioner, particularly in personal injury matters, could have so manifestly neglected to prepare the case for hearing in a timely fashion. Nor, given the same criteria, how he could have courted the displeasure of the list judge, by failing to comply with directions on numerous occasions.

66 The plaintiff’s case was listed in accordance with common practices in the District Court in matters of this nature. The applicant acknowledges that he was very familiar with the processes followed in that jurisdiction in order to case manage litigation. At the time this matter was subject to court case management, the applicant was conducting a large number of civil litigation matters in the District Court and in the Workers Compensation Commission.

67 There was a period of approximately 3 months between the filing of the statement of Claim and the pre-trial conference. There was a period of 4 months and about 10 days between the pre-trial conference and the status conference. The applicant agreed a timetable on 2 May 2002, and agreed the date of the status conference listed for 12 September 2002. As an experienced solicitor he understood the obligations placed upon him in agreeing that timetable.

68 The only conclusion that can be drawn from the evidence is that for reasons that require to be considered by the Tribunal, the applicant effectively neglected to give this matter the attention required from a member of the profession. That neglect continued in the face of repeated stern warnings from the bench. It continued in the face of an order on 11 October 2002, that the plaintiff pay the defendant’s costs, and that the applicant, as her solicitor, reimburse her for those costs.

69 The applicant told that Tribunal, that in agreeing to the three timetables, he believed he could comply with them despite his heavy workload. The Tribunal accepts the applicant's evidence that such was his belief. It is, however, difficult for the Tribunal to comprehend why the applicant, after failing to meet the timetable on perhaps the first, but certainly the second directions hearing, was not alerted to the fact that there was a gathering problem in this case, which required his attention. Plainly, it did not get his attention.

70 The applicant was cross-examined about his failure to comply with the directions in this Tribunal in the course of preparation for hearing of his application. The Tribunal accepts his explanation, but nonetheless expresses some surprise that, given his concern to overturn the findings of the Professional Conduct Committee, he was not totally compliant with directions made in this Tribunal.

71 One issue with which the Tribunal has been concerned, is the poor relationship which clearly existed between the list judge and the applicant. Reference is made to that by both his Honour and the applicant. It is, however, incumbent upon this Tribunal to view the matter before it, carefully setting aside any references to the history of prior disagreement between the judge and the applicant. This must be viewed as a single complaint carefully separated, and distinguished from any history of disagreement between the presiding judge and the applicant.

72 The Tribunal is satisfied that, as he admitted, the applicant, on three occasions, failed to comply with directions of the court. The basic excuse, he puts forward for his persistent dereliction of his duty as legal representative for the plaintiff, is the stress he was working under occasioned by the illness of his uncle, his inability to find a satisfactory employee to reduce the workload in his practice, his substantial workload, and a period when he was not functioning as well as he had previously done.

73 The respondent submits that the conduct of the applicant in the management of the plaintiff's case, his persistent failure to comply with the directions of the court, his failure to prepare the matter for hearing, in accordance with those directions, constitute unsatisfactory professional conduct.

74 Section 496 of the Legal Profession Act 2004 relevantly provides:

Section 496 Unsatisfactory professional conduct

For the purposes of this Act:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

75 In Walsh v. Law Society of NSW [1999] HCA 33 The High Court pointed out that the statutory concept of unsatisfactory professional conduct was introduced into the Legal Profession Act1987 to:

meet dissatisfaction with the response to those charged with deciding the complaints of users of legal services and the suggestion that they sometimes tended to neglect conduct falling short of proper standards of competence and diligence.

76 Unsatisfactory professional conduct has been characterised as:

something more than mere negligence, but something falling short of professional misconduct.

77 The Legal Profession Act2004 has removed an option which was available under the Legal Profession Act1987, whereby a private reprimand could be administered. Any reprimand administered under the 2004 act is a public reprimand carrying with it an increased level of sanction.

78 Counsel for the applicant submitted that the Tribunal could take into account the following matters: the frequency of the misconduct and any prior findings of misconduct; the lawyer’s age and professional experience; the lawyer's attitude; the lawyer's lack of appreciation of wrong doing; testimonials and opinions by third parties; illness or stressor suffered by the lawyer; the loss suffered by third parties as a result of the lawyer’s misconduct; the loss already suffered by the lawyer personally, as a result of misconduct.

79 In NSW Bar Association v. Meakes [2006] NSWCA 340, the court held that a number of matters taken into account by the Tribunal in making a finding of unsatisfactory professional conduct rather than professional misconduct, were irrelevant to that decision. Those irrelevant matters included: the length of time the barrister had been in practice without any other blemish on his record, the manner in which he dealt with the complaint when first it came to light, financial issues relating to the conduct complained of, and character references. These are matters properly to be taken into account in determining an appropriate penalty, rather than assessing the nature and appropriate categorization of the behaviour the subject matter of the complaint.

80 It was submitted on behalf of the applicant that professional misconduct or, as in this case, unsatisfactory professional conduct, is not an objective standard. A practitioner will not be thought to have engaged in misconduct in the absence of an intention or knowledge that the conduct was wrong. Counsel was unable to point to any decision dealing with the question of intention in relation to unsatisfactory professional conduct. He submitted, however, that any reasonable member of the public would not expect a practitioner to be subject to professionals censure, if there were some understandable reason or excuse for a failure or shortcoming.

81 The applicant has essentially admitted the facts of the complaint against him, and the findings of fact made by the respondent. It is no part of those facts or findings, to suggest that the applicant set out to deliberately thwart the Court’s case management process. Nor is that a component of the submissions made on behalf of the respondent. The essence of those submissions was that the applicant displayed such a careless or reckless disregard concerning his capacity to perform his professional obligations, consequent upon agreeing to timetables for the case management of the plaintiff’s case, that, even taking into account the stressors he was experiencing, those failures must be characterized as negligence.

82 The Tribunal is satisfied that the applicant knows the system of case management intimately; he understood his obligations when he agreed to orders concerning the conduct of the matter; his failure to comply was brought to his attention on various occasions; he was subjected to critical comment from the bench and ordered to pay the costs ordered against his client. In the face of those events, he engaged in repetitious failure to comply with the directions. This is conduct far removed from mere oversight, or isolated failure.

83 The solicitor gave evidence that as a consequence of the Workers Compensation courts closing at the end of 2002, there was a considerable increase in his workload. He gave as an instance of that increase that on 17 September 2002, he had nine workers compensation matters in the Compensation Court list. He gave evidence of the long hours he was working causing his physical and mental exhaustion.

84 It was submitted for the applicant that such an accumulation of adverse circumstances is likely to arise in the lives of most people at least once in a lifetime. Further, that the essential matter of complaint was the lengthy period during which the applicant failed to respond to the requests for further and better particulars. It is argued that complaints about qualifying material, the photograph, the medical reports and the clinical notes "are simply extras".

85 It was submitted on behalf of the applicant that these were failures of diligence and not of the most serious kind. They were delays that could be understood in the light of his circumstances at the time. It was put that was also relevant to consider the type of practice the applicant was running, and the type of service, he was providing. Further, that there should be a distinction made between what is expected of a small suburban practitioner, with one sick partner and that of a solicitor in a large city firm, charging substantial sums for acting in "esoteric areas of law."

86 In essence, the case for the applicant is that, whilst the applicant admits all of the failures to comply with the court's directions, each and every one of them can be explained in terms of his work pressure and personal stress, both of which conditions were caused by the serious and unexpected illness of his uncle, and the consequential expansion of the applicant’s own workload, which he had to undertake in the context of emotional distress, relating to his uncle’s illness.

87 Whilst some criticism was made of the applicant’s failure to employ a suitable practitioner, to alleviate the workload, the Tribunal accepts the applicant's explanation regarding that employee. Namely, that he was employed both to assist in the existing work of the practice whilst building up a new area of work in the migration field. In the event, that employee proved inadequate resulting in no diminution of the applicant’s workload.

88 The Tribunal accepts that the applicant was coping with a difficult situation in his practice from the time his uncle fell ill. Despite those problems, the factors that were having an adverse impact on the applicant's capacity to cope, cannot be characterised as exceptional circumstances such as would warrant exoneration of the applicant.

89 The reports of Dr. Bentovoglio and Dr. Puglisi were not served within time because neither the client, nor the applicant was in a position to pay for them. The Tribunal accepts that there was no obligation on the applicant to meet the cost of those reports, although he did eventually pay for them. Nonetheless, in dealing with an indigent client, a practitioner must make a realistic assessment of the manner in which the case can be conducted in compliance with the directions of the court.

90 The criticism of the applicant is not that he did not pay for the plaintiff’s medical reports, it is the fact that he repeatedly entered into consent orders which, he should have known, could not be complied with.

91 It is submitted on behalf of the applicant that the failure to provide the marked photograph resulted from a legitimate forensic decision to obtain a photograph that better demonstrated the gap between surfaces of the footpath. The Tribunal does not seek to quibble with the forensic decision made by the applicant. It is the delay in achieving a fairly simple procedure to effect that forensic intention that is the subject matter of criticism.

92 It is submitted that it is arguable that the letter of 27 April 2001 to the expert did not contain any qualifying material, and that the material the expert relied upon “appears to be in the report”. That, however, ignores the well settled right of the opposing party to be satisfied as to the material provided to an expert when seeking an expert opinion. The defendant was entitled to that material whether or not it was substantially reproduced in the expert’s report.

93 The Tribunal emphasises that this finding is limited to the applicant's failure to prepare the case for hearing in accordance with the directions of the court. It is not to be taken as a criticism of the applicant in relation to the ultimate outcome of the case. It was clearly a claim with little chance of success. By the time it had been restored to the list and listed for hearing, the applicant had done all that was required in order to prepare the matter for hearing. The delay in compliance with the directions of the court, egregious as it was, cannot be demonstrated to have contributed to the outcome of the case. On the advice of Counsel, the matter was settled on the terms already set out.

94 The applicant subsequently made representations on behalf of the plaintiff, to the defendant Council seeking to have them waive the costs order. He was unsuccessful in that endeavour.

95 The Tribunal is satisfied to the standard laid down in Briginshaw v. Briginshaw (1938) 60 CLR 336, that the persistent failure of the applicant to comply with the directions of the court, and to prepare the case for hearing pursuant to those directions, constitutes unsatisfactory professional conduct. The admitted conduct falls short of the standard of competence and diligence that the plaintiff was entitled to expect from the applicant.

96 The applicant not only failed in his duty to his client, but failed in his duty to the court, which, as the court held in Whyte v. Bosch is a duty “to ensure that proceedings before the court are conducted efficiently and expeditiously” The applicant’s conduct was neither efficient nor expeditious.

97 The Conduct Committee found the solicitor’s failure to be of such gravity as to amount to unsatisfactory professional conduct. That finding is upheld by the Tribunal.

98 The Committee resolved that the applicant be reprimanded pursuant to s.155(3)(a) of the Legal Profession Act1987.

99 In order for the Tribunal to determine whether or not to allow the applicant’s appeal against that portion of the Conduct Committee’s decision, the Tribunal will take into account the circumstances which prevailed at the relevant time, and the reasons advanced by the applicant to excuse or explain his clear dereliction of duty.

100 The applicant gave evidence over two days. He did not seek to evade responsibility for the manner in which the matter had been conducted. He has substantial experience after 31 years as a practitioner. During that time, he has been successfully running a busy practice. It was clear that the applicant is deeply concerned about the position in which he finds himself and the consequences of the reprimand imposed upon him by the respondent Council.

101 It is clear to the Tribunal that the applicant, quite apart from the complaint made against him, has been occasioned substantial financial loss in relation to the claim he was conducting on behalf of the plaintiff.

102 The Tribunal is satisfied that the applicant's failure to comply with the directions of the court did not ultimately prejudice the plaintiff's case. The Tribunal notes that the applicant visited his client at her home on several occasions in an endeavour to prepare the matter for hearing.

103 The Tribunal has come to the view that, given the subjective matters relevant to the applicant, this was a matter which could more properly have been dealt with by the respondent by way of caution rather than reprimand.

104 The reprimand imposed by the respondent is set aside. Having regard to the relatively minor nature of the unsatisfactory professional conduct engaged in by the applicant, the Tribunal will not refer the matter back to the respondent to be dealt with in accordance with this decision, but, pursuant to s. 540 (2) (a) LegalProfession Act2004, and s. 63(3)(c) Administrative Decisions Tribunal Act1997 will substitute a caution.

105 The orders are:

1. The finding of unsatisfactory professional conduct is confirmed.

2. The reprimand is set aside.

3. The applicant is cautioned

3. No order as to costs.