Prothonotary of the Supreme Court of New South Wales v Nikolaidis

[2010] NSWCA 73

New South Wales

Court of Appeal

CITATION:	Prothonotary of the Supreme Court of New South Wales v Leon Nikolaidis [2010] NSWCA 73
HEARING DATE(S):	23 March 2010
JUDGMENT DATE:	12 April 2010
JUDGMENT OF:	Allsop P at 1; McColl JA at 1; Young JA at 1
DECISION:	1. Orders already made on 23 March 2010: (a) Remove the name of the respondent from the Roll of Local Lawyers of the Supreme Court of New South Wales (b) Respondent pay the applicant's costs of the proceeding. 2. Declare that the respondent is guilty of professional misconduct. 3. Declare that the respondent is not a fit and proper person to remain on the Roll of Local Lawyers of the Supreme Court of New South Wales.
CATCHWORDS:	LEGAL PRACTITIONERS - Removal from Roll of Local Lawyers - professional misconduct - whether fit and proper person to remain on the Roll - whether person of good fame and character - Legal Profession Act 2004 (NSW) ss 25, 42 and 497 - lawyer convicted for making false instrument - effluxion of time and reformation of character - nature and quality of criminal conduct established present unfitness to practise.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Beattie v Osman [2009] NSWSC 834; 73 ACSR 220 Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; 62 NSWLR 653 Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255 Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Seymour; Prothonotary v Seymour (Court of Appeal, 14 April 1982, unreported) Massoud v NRMA (1995) 62 NSWLR 657 New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 Prothonotary of the Supreme Court of New South Wales v McCaffrey [2004] NSWCA 470 Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217 Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279
PARTIES:	Prothonotary of the Supreme Court of New South Wales Leon Nikolaidis
FILE NUMBER(S):	CA 2009/298434
COUNSEL:	Mr P Griffin (Applicant) Mr T S Hale SC (Respondent)
SOLICITORS:	Crown Solicitor (Applicant) McLachlan Chilton Lawyers (Respondent)

2009/298434

ALLSOP P
McCOLL JA
YOUNG JA

Monday 12 April 2010

PROTHONOTARY OF THE SUPREME COURT OF NEW SOUTH WALES v LEON NIKOLAIDIS

Judgment

On 23 March 2010, the Court made orders removing the name of the respondent, Mr Leon Nikolaidis, from the Roll of Local Lawyers of the Supreme Court of New South Wales and providing that the respondent pay the applicant’s costs of the proceeding. The Court reserved the question of the making of three declarations sought in the Summons: that the respondent is guilty of professional misconduct, that he is not a person of good fame and character and that he is not a fit and proper person to remain on the Roll of Local Lawyers of the Supreme Court of New South Wales.

The facts

2 The respondent, who is 54 years of age, was admitted as a solicitor of the Supreme Court of New South Wales on 8 July 1983.

3 On 22 August 2007, the respondent was convicted of a crime of dishonesty. The offence was that, contrary to the Crimes Act 1900 (NSW), s 300(1), between 31 October 1996 and 17 February 1998 he made a false instrument, being a letter to Mr John Preston dated 19 April 1984, with the intention of using it to induce another person to accept it as genuine and thereby to do an act to the prejudice of Mr Preston.

4 The essence of the matter was that between 1996 and 1998, when the respondent and Mr Preston (a former client) were in dispute about legal fees going back many years, the respondent caused a back-dated copy of a letter purportedly from him to Mr Preston dated 1984 to be created by a secretary and placed on one of the files in dispute. The letter purported to be a copy of an agreement about fees (in 1984) supportive of the position being taken by the respondent in his then current dispute with Mr Preston. At the time the document was created, a costs assessor (Mr Hattersley) had been appointed by the Supreme Court to assess the contested costs. The assessor was intended to find the letter (as he did) and act on it in the assessment.

5 On 23 November 2007, the respondent was sentenced to imprisonment for two years from that date with a one year non-parole period.

6 On 27 November 2007, the respondent was granted bail by Hoeben J. Also on that day, the respondent’s practising certificate was suspended; later, on 13 December 2007, it was cancelled. On 21 December 2007, Hoeben J granted a stay of the suspension and cancellation of the respondent’s practising certificate, pending the respondent’s appeal to the Court of Criminal Appeal.

7 On 17 December 2008, the respondent’s appeals against his conviction and sentence were dismissed: [2008] NSWCCA 323.

8 On 17 February 2009, orders were made in the Supreme Court lifting the stays on the suspension and cancellation of the respondent’s practising certificate.

9 The facts agreed between the applicant and the respondent included facts from the remarks of the sentencing judge as consistent with the jury’s verdict (which were proved in evidence in any event). These facts were as follows:

(a) that the letter was prepared by Ms Jan Moffatt in accordance with the instructions she had been given by the respondent both as to content and format;
(b) that the instructions for the letter by the respondent to Ms Moffatt were given when he was aware of, and in the context of, the dispute over costs with Mr Preston;
(c) the document was false both as to the date it was said to be issued and as to its content;
(d) that it was made by the respondent with the intent of inducing the costs assessor, Mr Hattersley, to accept it as genuine; and
(e) with the intent that the assessor would do some act, issuing a costs assessment;
(f) an assessment made on that basis would have been to the prejudice of Mr Preston. That prejudice would have been the issuing of a costs assessment in accordance with the charge out rate of $150 per hour, as specified in the copy letter;
(g) that the respondent was aware that the issue of costs and his entitlement to a charge out rate was to be the subject of examination by the costs assessor;
(h) that the letter was placed on the relevant file by the respondent with the expectation and intent that it be discovered by Mr Hattersley;
(i) that Mr Hattersley would utilise the hourly charge out rate in his costs assessment process; and
(j) that the use of that rate would have led to an assessment at a higher figure than would otherwise have been the case had the assessment been at the then applicable Supreme Court scale.

10 The agreed facts also included findings by the sentencing judge as to what was involved in the offence and its level of criminality. His Honour said that there was:

(a) a direction by the respondent to a trusted employee to prepare a false document;
(b) with the intention that that letter would be discovered;
(c) further, that when the letter was discovered and brought to his attention by Mr Zwar (his then employed solicitor) the respondent permitted the use of the letter as a genuine copy costs letter to continue, knowing that it was likely that the use of the letter would have the effect of inducing a court appointed costs assessor;
(d) to issue a costs assessment at a higher rate than would otherwise have been the case; and
(e) that that assessment, issued on the premise of that false document, would have been to the prejudice of Mr Preston.

11 The applicant sought to rely upon other facts not the subject of agreement. These other facts, to the extent they are relevant, were proved by the contents of the annexures to the affidavit of the applicant, to which no objection was taken. These facts are not central and comprise an elaboration of the history of the professional relationship between Mr Preston and the respondent and the rates of charging from 1984 to 1992, of the dispute between them from 1992 and of how Mr Hattersley, the costs assessor, came to undertake his task. Only some of this detail need be referred to.

12 Mr Hattersley was appointed a costs assessor for the purposes of the respondent’s application for an assessment of his costs under the Legal Profession Act 1987 (NSW). In communications between Mr Hattersley and the respondent, Mr Hattersley said that before he could accept a charge out rate of $200 per hour “you [the respondent] must seek to rely on a specific written agreement between you and your client.” Mr Hattersley sought copies of any such agreement.

13 The document was then created and placed on a file involving a dispute between Mr Preston and another party.

14 Mr Zwar, a solicitor employed by the respondent who had been given the task of collecting the files and dealing with Mr Hattersley said that he spoke to the respondent about the letter and the respondent said, “Well, I always thought that there was a letter there somewhere.”

15 Mr Hattersley found the copy letter, made a copy of it and corresponded with the parties about it. The letter was investigated. That investigation led to the charging of the respondent with the offence in question.

16 The respondent gave evidence at his trial. He denied the evidence of Ms Moffatt that he asked her to fabricate the back-dated letter. The only conclusion open on the verdict of the jury was that the jury did not believe him.

17 The respondent did not give evidence in the application before this Court. He did accept, however, that in view of his conviction and sentence it was proper for an order to be made for his name to be removed from the Roll of Local Lawyers of the Supreme Court of New South Wales.

Consideration, declarations and orders

18 The Court must satisfy itself that it is appropriate to make orders removing the respondent’s name from the Roll, even if he concedes that the orders should be made: Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451; Prothonotary of the Supreme Court of New South Wales v McCaffrey [2004] NSWCA 470 at [12] and Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255 at [13].

19 The importance of dealing with the matter in full was discussed by Moffitt P in Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 and Law Society of New South Wales v Seymour; Prothonotary v Seymour (Court of Appeal, 14 April 1982, unreported). The two purposes for dealing with the matter fully are, first, the general public interest in the discipline and control of the profession and the need for public confidence that such matters are dealt with openly and fully and, secondly, the assistance to the Court and others that may be gained in relation to any future application for readmission. See also Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4-5 (Kirby P); New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at 285 [24]-[25] (Spigelman CJ with whom Mason P and Handley JA agreed); Power at 459 [10]-[11] (Hodgson JA, with whom Beazley and McColl JJA agreed); and Einfeld at [15].

20 A finding that a person is not a fit and proper person to engage in legal practice and thereby to remain on the Roll is a question in respect of which regard may be had to the matters that would be considered under s 25 or s 42 of the Legal Profession Act 2004 (NSW): s 497(2) of that Act. Sections 25 and 42 deal with suitability for admission and suitability to hold a local practising certificate. Each provision refers to a “suitability matter”, a term defined by s 9. That definition of “suitability matters” includes:

“(a) whether the person is currently of good fame and character;
…
(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:
(i) the nature of the offence, and
(ii) how long ago the offence was committed, and
(iii) the person’s age when the offence was committed.”

21 The phrases “fit and proper person” used in s 497(1)(b) and “good fame and character” in s 9(a) are not defined in the Legal Profession Act, but are both well-known. As Mahoney JA said in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 449, character involves, amongst other things, the acceptance of high standards of conduct and acting in accordance with them, under pressure.

22 The evidence here and the agreed facts reveal that the respondent engaged in a deliberate and planned course of action involving third parties to deceive a costs assessor appointed by the Supreme Court in order to advance his position against a former client. The remarks of the sentencing judge in relation to the criminality of the respondent were warranted. The conduct does not bear the hallmark of a one-off lapse of judgment not reflective of underlying character. The conduct reflects deeply upon the respondent. It reveals a willingness to engage in dishonest conduct and a willingness to undertake it in a planned fashion. The matter is made worse by involving a trusted employee and by the conduct being part of an attempt to disadvantage a former client by deceiving someone appointed by the Court to carry out a function under the Rules.

23 These events happened over ten years ago. Should the Court take into account the effluxion of time? In this regard, the views of Walsh JA (with whom Wallace P agreed) in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 460-461 are relevant:

“His counsel has urged upon the Court that the last of the matters which I have reviewed was as long ago as early 1960 and that some of them are still more remote. He has raised the question whether these matters, or any of them, could be held to have indelibly stamped the applicant as a man of bad character. I think, however, that this question so phrased does not truly pose the problem which confronts the Court. Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases it has been frequently said that a heavy onus lies on the applicant: see Ex Parte Clyne [[1962] SR (NSW) 436 at 441], and cases there cited.” (emphasis added)

24 The views of Walsh JA, to the extent they are emphasised above were approved by this Court (Gleeson CJ, Meagher JA and Handley JA) in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.

25 In circumstances where the respondent chooses not to come forward to assist by giving evidence in the disciplinary proceeding, the failure to provide an exculpatory statement or explanation means that inferences from proved facts can be drawn more safely because the defendant has failed to give any explanation of matters peculiarly within his knowledge: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50; Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217; Power at 463-467 [20]-[29]; and Einfeld at [23]. Similarly, in the context of assessing whether reformation may or may not have occurred, in circumstances where the respondent does not give evidence, it is difficult to see how it can be concluded that the reflection upon the underlying character of the respondent by the commission of a planned offence of dishonesty does not reflect on him over ten years later.

26 Whilst a criminal conviction even for a serious offence does not automatically render a person unfit to be on the Roll, it is necessary to assess the nature and quality of the criminal conduct and its seriousness: Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279. Here, the proven misconduct and conviction establish an unfitness to practise because of the planned dishonesty involved in the offence for personal gain.

27 We have no doubt that the gravity of the misconduct demonstrates a present unfitness to practice. Declarations essential to that conclusion are warranted. We have expressed our views on how the proved offence reflected on the respondent’s character. While there is no basis to conclude any change by way of reformation has occurred, we do not find it necessary to make an additional declaration as to present absence of good fame and character in the absence of contemporary evidence. It is unnecessary to discuss whether declaratory relief as to fame and character would require more recent evidence: cf Massoud v NRMA (1995) 62 NSWLR 657; Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; 62 NSWLR 653; and Beattie v Osman [2009] NSWSC 834; 73 ACSR 220. Certainly, cases such as Tziniolis and Litchfield make it appropriate to act upon the basis of the absence of reformation of character in assessing current fitness to remain on the Roll. It is, in the circumstances, sufficient to declare that the respondent is guilty of professional misconduct and is not a fit and proper person to remain on the Roll.

28 These are our reasons for making the order on 23 March 2010, removing the respondent’s name from the Roll of Local Lawyers. For the above reasons, we would also make the following declarations:

(a) That the respondent is guilty of professional misconduct.

(b) That the respondent is not a fit and proper person to remain on the Roll of Local Lawyers of the Supreme Court of New South Wales.

29 Brief submissions were made as to costs. It was submitted by Mr Hale SC, on behalf of the respondent, that the respondent had always been willing to have his name removed from the Roll and that he should not pay the costs of the application. We reject that submission. As the cases to which we have referred reveal, it is necessary for the Court to consider the facts themselves and to deal with the matter fully. It was the responsibility of the Prothonotary to bring the matter forward in the manner she did. There was no apparent unnecessary expense in the way the matter was dealt with. It is the respondent’s conduct that required the application to be made. For these reasons we made the order for costs on 23 March.

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