Waterhouse v Law Society of New South Wales [LSD]

[2003] NSWADTAP 20

Appeal Panel - Internal

CITATION:	Waterhouse v Law Society of New South Wales [LSD] [2003] NSWADTAP 20
PARTIES:	APPELLANT Martin Otto Waterhouse RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	029049
HEARING DATES:	25/03/2003
SUBMISSIONS CLOSED:	03/25/2003
DATE OF DECISION:	06/20/2003
DECISION UNDER APPEAL:	Law Society of New South Wales v Waterhouse [2002] NSWADT 204
BEFORE:	Nader J QC - ADCJ (Deputy President); Gailey C - Judicial Member; O'Neill A - Member
CATCHWORDS:	no evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	012023
DATE OF DECISION UNDER APPEAL:	10/18/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Wade v Licardy (1993) 33 NSWLR 1 Royal Bank of Queensland v Ryan (1897) QLJ 97 Vincent Cofini (1994) NSWLST 25 Law Society of NSW v Martin (2002) NSWADT 27
REPRESENTATION:	APPELLANT R Campbell, barrister RESPONDENT I Wales SC, barrister
ORDERS:	1. Appeal dismissed and the orders of the Administrative Decisions Tribunal made on 18 October 2002 confirmed.; 2. The Appellant to pay the costs of the Law Society of and incidental to these proceedings.

1 This is an appeal by Martin Otto Waterhouse (“the Appellant”) against a decision of the Administrative Decisions Tribunal (“the ADT”) given on 18 October 2002. The ADT found that the Appellant was guilty of unsatisfactory professional conduct in failing to comply with an undertaking given by him as a solicitor and it ordered that he pay a fine of $2,000.00 and that he pay the costs of and incidental to the proceedings before the ADT.

2 The appeal is brought under section 113 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). An appeal may be brought as of right on a question of law, and, it may extend to a review of the merits of the decision appealed against with the leave of the appeal panel.

3 It was argued on the appeal that what was categorised as a binding undertaking by the Tribunal should not, as a matter of law, on the evidence adduced, properly be regarded as such an undertaking. In short, it was argued that their was no evidence capable of supporting the Tribunal’s finding and therefore that the finding was wrong in law.

4 The facts were fully and accurately set forth in the decision of the Tribunal.

5 The Tribunal considered the evidence of the Appellant which was given with particularity and which included both objective and subjective factors. Although largely accepting, for the purposes of the proceedings, the Appellant’s version of the circumstances in which the undertaking was given, the Tribunal, nevertheless, found that the undertaking given by the Appellant in a letter to Messrs Gillis Delaney Brown, solicitors, of 18 October 1993, in which the Appellant undertook to deliver to those solicitors specified documents, was a binding undertaking. That finding was based largely upon an examination of the terms of the letter itself, which were unambiguous. The Appellant unsuccessfully submitted that a different construction should be put on the letter in the circumstances in which it came into existence: namely, that the undertaking was in reality contractual and that the appellant was relieved from complying with it by reason of the conduct of the other parties.

6 We think that the Tribunal’s finding that the undertaking was binding on the Appellant was open to it.

7 Having found that the Appellant had given an undertaking that was inappropriately broken, the Tribunal concluded on well recognized authority that the Appellant’s conduct was at least unsatisfactory professional conduct. The examination of the law was thorough and included consideration of passages of The Guide to the Professional Conduct of Solicitors published by the Law Society of England and Wales in 1990; Wade v Licardy (1993) 33 NSWLR 1; New South Wales Solicitors Manual by Riley paras 20.11 – 20.125; Cordery on Solicitors 8th Edition pp 110 – 112; Royal Bank of Queensland v Ryan (1897) QLJ 97; Vincent Cofini (1994) NSWLST 25 at para 6; Law Society of NSW v Martin (2002) NSWADT 27 at para 28.

8 The Tribunal made apt comments on the measure of the seriousness of the Appellant’s breach of undertaking. The Tribunal said:

“26. Although ordinarily we would expect that non-compliance with a solicitor’s undertaking would be regarded as professional misconduct, there are in our view particular circumstances here which put the conduct in the less serious category of unsatisfactory professional conduct.

27. The circumstances we refer to are that the Solicitor has asserted that the undertaking in question was procured from him by deceit and for reasons which we have described above, we are constrained to treat that assertion as an arguable one. If the Solicitor had been able to persuade the court that his assertions were well founded and that there had not been reliance on the undertaking by anyone not bound by the allegedly deceitful conduct, he would in our view have had reasonable prospects of obtaining a release from his undertaking. His error was in not applying to the court for a release. His view that the alleged deceit entitled him to ignore the undertaking was wrong but how obviously wrong was it?”

9 We are satisfied that it was open on the facts for the Tribunal to find as it did.

10 Having considered the facts of the matter in order to determine the point of law raised by the appeal, we are satisfied that a review of the merits could not persuade us to any other conclusion than that reached by the Tribunal. Accordingly we decline to review the merits of the Tribunal’s decision.

11 We therefore make the following orders:

1. That appeal is dismissed and the orders of the Administrative Decisions Tribunal made on 18 October 2002 are confirmed;

2. That the Appellant pay the costs of the Law Society of and incidental to these proceedings.