Council of the Law Society of New South Wales v Johnson

Procedural history 4For reasons that will become apparent, a number of events occurring between the filing of the Application by the Law Society (on 23 September 2011) and the hearing of the case (on 23 October 2012) should be outlined. 5On 23 September 2011, the Law Society also filed an affidavit sworn on 15 September 2011 by its solicitor on the record, Ms Anne-Marie Foord, and an affidavit sworn on 11 August 2011 by Mr Kenneth Ramshaw, a licensed process server. 6In an affidavit sworn on 31 January 2012 and filed by the Law Society on 13 March, Mr Jeffrey Edwards, a licensed process server, deposed that on 31 January he served sealed copies of the Application and of the two affidavits just mentioned, together with a letter dated 25 January 2012 from the Law Society to the Solicitor, notifying him that the Application was listed for directions in the Tribunal on 1 February. 7The Solicitor did not appear at that directions hearing, or at directions hearings held on 7 March and 1 August 2012. He did, however, appear in person or by telephone at directions hearings held on 4 April, 2 May, 6 June, 4 July and 5 September 2012. 8At each of the directions hearings held on 4 April, 2 May, 6 June and 4 July 2012, the Solicitor was directed to file and serve within a specified period of time (26 days on the first occasion; 14 days on each subsequent occasion) his Reply to the Application and any affidavit evidence on which he wished to rely. He did not comply with any of these directions. 9At the last of these four directions hearings, the Tribunal was notified that the matter was likely to proceed by way of an Instrument of Consent under section 564 of the Legal Profession Act 2004 ('the LP Act'). At the directions hearing on 1 August 2012 (at which the Solicitor did not appear), the date of the hearing of the Application was fixed as 2 October 2012. At the directions hearing on 5 September 2012 (at which the Solicitor did appear), this date was confirmed. 10At the hearing of the Application before us on 2 October 2012, Mr Pierotti, a solicitor in the employ of the Law Society, appeared for the Society and the Solicitor appeared in person. 11At the commencement of the hearing, we explained to the parties a matter relating to the constitution of the Tribunal panel. Both parties indicated that they had no objection to its constitution. 12Mr Pierotti then opened the Law Society's case and tendered the affidavits sworn by Ms Foord and Mr Ramshaw. These affidavits were admitted without objection. 13At this point, the Solicitor applied for the hearing to be adjourned, on the following grounds: (a) he believed that he could defend the Application on the ground that he had a reasonable excuse, stemming from serious problems in his personal relationships, for failing to comply within the time required with the section 660 Notice ('the Notice') that had been served upon him; (b) he had been unable, however, to prepare and file his Reply and the evidence (relating to both liability and penalty) on which he wished to rely; (c) the reasons for this were that he could not afford to pay for legal advice and assistance and that his difficulties in his personal relationships were continuing; and (d) in a statutory declaration sworn on 20 August 2012 and sent soon afterwards to the Law Society he had provided the information that the Notice required him to provide. 14In reply to a question from the Bench, the Solicitor advised that he could now afford to brief counsel and that if the adjournment were granted he could file and serve his Reply and supporting evidence within 14 days. 15Mr Pierotti opposed the application for adjournment, on the ground that during the period of about eight months since the Application and supporting affidavits were served on the Solicitor he had had ample opportunity to respond to the matters raised against him. 16Mr Pierotti acknowledged, however, that since the Solicitor did not hold a current practising certificate, the granting of an adjournment would not create a threat to the public interest. He indicated also that the Law Society did not concede that the declaration sent to it by the Solicitor on or about 20 August 2012 was sufficient to comply with the Notice. 17After deliberating on these submissions, we held that, by virtue of overriding considerations of natural justice, the Solicitor's application for an adjournment should be granted. We did so even though (as we made clear) we regarded as distinctly unsatisfactory the reasons that he had given for his repeated failures to comply with directions to file his Reply and his evidence. We pointed out that these reasons had been described in very vague terms and had not been verified at all. We also indicated that in deciding to grant the adjournment we had taken into account the fact that he had complied, at least to some extent, with the Notice and that he had advised us that he could file and serve his Reply and evidence within 14 days. 18Following discussion of possible dates, we ascertained that 23 October 2012 was a convenient day for the parties and the Panel members. We fixed 10 a.m. on that day as the time and date for the adjourned hearing. 19In addition, we directed that the Solicitor should (a) notify the Registry within 24 hours as to the availability of his counsel on this date and as to his address for service (about which there had been some doubt) and (b) file and serve his evidence by 16 October. 20Although the Solicitor stated at the hearing on 2 October 2012 that he was able to comply with these directions, he did not do so. 21At the adjourned hearing on 23 October 2012, the Solicitor did not appear. Mr Pierotti, at our request, attempted to contact him, using a mobile telephone number that the Solicitor had previously conveyed to the Law Society. A message left on this number prompted a reply to the effect that it was not the Solicitor's phone number. 22On the ground that the Solicitor, at the hearing 21 days earlier, had been given express notice of the date and time of the adjourned hearing, we held that it was appropriate for Mr Pierotti to continue to present the Law Society's case in the Solicitor's absence. In so ruling, we took into account the requirements as to notice set out in Rules 26 and 29 of the Administrative Decisions Tribunal Rules 1998. 23The Law Society's evidence and submissions, as then put before us by Mr Pierotti, are outlined below. 24At 11.15 a.m., after we had stated that we would reserve our decision, the hearing on 23 October 2012 came to an end. 25At about 11.35 a.m. on the same day, a medical certificate was delivered by hand to the Registry. It was dated 23 October 2012 and contained a signed statement by a medical practitioner, Dr George O'Young, that the Solicitor was 'suffering from anal pain due to infection' and was 'unfit to attend work' on that day. 26At about 4.15 p.m. on 24 October 2012, the Registry received by fax a letter addressed by the Solicitor to the Tribunal and dated 23 October. After referring to the hearing scheduled for 10 a.m. on that day, the Solicitor wrote as follows:- I note that I telephoned the Registry this morning to inform them that I would not be able to attend the hearing of the matter today due to a medical condition. I have an infection in the anus region which has led to considerable bleeding and immense and ongoing pain... I still wish to be heard in the matter as it is particularly unfair if the applicant is allowed to put their case to the tribunal and the respondent, being obviously me, is not afforded the same opportunity. I do understand that the matter has been set down for hearing in the past and directions made to afford me this opportunity, however, the medical condition suffered by me is outside my ambit of control in ensuring that I could not attend the hearing today. Could you please advise what will be necessary to have the matter re-listed so as I can put my evidence to the tribunal. 27A copy of Dr O'Young's medical certificate accompanied this letter. 28At the request of Deputy President Chesterman, who is the Tribunal member presiding in these proceedings, the Registry sent a copy of this letter to the Law Society, together with a request for the Society's comments. In a reply dated 25 October 2012 (a copy of which was sent to the Solicitor), Mr Pierotti stated that 'having regard to the history of this matter, especially the Respondent's non-compliance with the directions of the Tribunal (made 2 October 2012), the Society would not consent to any application by the Respondent for the proceedings to be re-opened'. 29Having given consideration in chambers to this correspondence from the Solicitor and the Law Society, we then asked the Registrar to write in the following terms to the Solicitor:- I refer to the above matter and the hearing on Tuesday 23 October 2012. At that hearing, which concluded before the Registry received your medical certificate, the Tribunal's Panel heard the Law Society's application and reserved its decision. The Tribunal Panel will only consider reopening the proceedings if you comply with the following five conditions: 1. Your application is filed in the Tribunal and served on the Law Society within 21 days of the date of this letter, i.e., on or before 20 November. 2. It is accompanied by an affidavit or statutory declaration by you explaining your reasons for (a) not complying with any of the directions that the Panel gave on 2 October, to the effect that you should notify the Registry within 24 hours of the availability of your counsel on 23 October and of your address for service, and that you should file and serve your evidence by 16 October, and (b) failing to notify the Tribunal until 11.35 a.m. on 23 October that due to a medical condition you were unable to attend the hearing scheduled to commence at 10 a.m. on that day. 3. Your application is also accompanied by verified medical evidence which (a) confirms that due to this medical condition (which should be properly identified) you were not fit to attend the hearing on 23 October and (b) supports any claim by you that your failure to comply with the directions given on 2 October was attributable to this or any other medical condition. 4. Within 21 days of the date of this letter, you file and serve the evidence relating to your defence of the proceedings - being evidence that you have been directed to file and serve on 5 previous occasions, dating back as far as 4 April 2012. 5. Within the same period, you advise the Registry of your current address and telephone number. The above conditions relate only to the question whether the Panel hears your application for leave to reopen. Fulfillment of them will not be enough of itself to entitle you to have them reopened. The question whether the Panel grants your application to reopen will be determined only after it has considered the material that you have filed, along with your submissions and those of the Law Society. In addition, if you make this application and the Panel fixes a date for it to be heard, both you and the Law Society should be prepared to go ahead with the substantive case on that same date, in the event that the Panel decides in favour of your application. In such event, the Panel does not want to have to fix yet another date for the substantive hearing. 30On 30 October 2012, the Registrar sent a letter in these terms to the Solicitor by express post (with copy to the Law Society). On 2 November, the Registry, using the tracking system operated by Australia Post, ascertained that the letter was delivered at 5 p.m. on 31 October. No notice indicating or suggesting that the letter failed to reach the Solicitor has been conveyed to the Registry. 31The Solicitor did not make any application within the period of 21 days specified in this letter (or at any subsequent time) for the proceedings to be reopened, nor did he comply with any of the other pre-conditions that we stipulated for making such an application. 32On account of these failures on his part and of his earlier conduct outlined in this section of our reasons, we have determined that we should not reopen the proceedings in response to his request in his letter to the Tribunal dated 23 October 2012. It is appropriate for us instead to determine the matters raised in the Disciplinary Application filed by the Law Society.

Relevant provisions 33The relevant provisions of the LP Act are subsections (1), (3) and (4) of section 660 and subsections (3) and (4) of section 676. They state:- 660 Requirements in relation to complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following: (a) to produce, at a specified time and place, any specified document (or a copy of the document), (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states), (c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner. (3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Maximum penalty: 50 penalty units. (4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance. 676 Obligation of Australian lawyers (3) An Australian lawyer who is subject to: (a) a requirement under section 660 (Requirements in relation to complaint investigations), or (b) a requirement under provisions of a corresponding law that correspond to that section, must not, without reasonable excuse, fail to comply with the requirement. (4) An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.

The Law Society's evidence 34The Law Society relied on the affidavits of Ms Foord and Mr Ramshaw that we admitted at the hearing on 2 October 2012. It relied also on a letter dated 5 October 2012 from Ms Natalie O'Halloran to the Solicitor. This letter was tendered and admitted on 23 October. Ms O'Halloran is identified in paragraph 15 of the Particulars as an Investigator who has had conduct of the investigation of the Law Society complaints against the Solicitor. 35Ms Foord's affidavit contains a statement that the Solicitor was admitted to practise in New South Wales on 2 December 2005, but has not held a practising certificate since 30 June 2010. 36The annexures to Ms Foord's affidavit include copies of the Notice, of letters from the Law Society to the Solicitor and of file notes made by employees of the Society. These annexures, together with Ms Foord's statements in the body of the affidavit, substantiate all the matters alleged in the Particulars except as follows:- (a) Personal service of the Notice on the Solicitor on 7 August 2010 (see paragraph 10 of the Particulars - 'P10' - hereafter we will use this form of abbreviation when referring to paragraphs of the Particulars) is established in the affidavit of Mr Ramshaw. (b) A file note annexed to Ms Foord's affidavit, relating to the Solicitor's failure to keep his appointment with the Investigator on 1 April 2011 (see P13), states that what the Solicitor claimed to have 'failed to recollect' was an appointment with his uncle, not with the Investigator. (c) There is no evidence that the Law Society sent to the Solicitor the letter of 21 June 2011 described in P17. 37With regard to the Notice (a copy of which was annexed to Ms Foord's affidavit), it is sufficient for present purposes to record the following: (a) it required the Solicitor to provide verified answers to 23 questions relating to the matters raised in Ms Popovski's complaint against him; (b) it required him also to produce documents within five specified categories that related to these matters; and (c) it stated that if he was unable to comply with these requirements he was to provide a statutory declaration within 21 days after service of the Notice, setting out the reasons for his inability to comply. 38We observe also that the Law Society's letter of 9 May 2011 to the Solicitor contained significant material that is not mentioned in P15. It notified the Solicitor of the Professional Conduct Committee's opinion that, subject to any submissions that he might make, the Committee should resolve as follows: (a) that there was a reasonable likelihood that the Tribunal would find him to have engaged in professional misconduct; and (b) that proceedings should be instituted in the Tribunal putting forward the same two grounds for a finding of misconduct and seeking the same orders as were subsequently included in the Application. The letter also invited him to make submissions on these matters to the Committee within 14 days. 39In her letter dated 5 October 2012 to the Solicitor, Ms O'Halloran commenced by referring to the Notice and to his statutory declaration in response to it sworn on 20 August 2012. She then asserted that in this declaration he had provided 'incomplete responses' on five matters. She identified each of the five paragraphs of the Notice where questions relating to these matters were to be found. Her letter concluded with a request that he provide a response to these 'outstanding matters' by 12 October 2012. 40There was no indication in the evidence, or in Mr Pierotti's submissions to us, that the Solicitor complied with this request.

The Law Society's submissions 41Mr Pierotti's submission on Ground 1 of the Application was that because the Solicitor had failed to comply at all with the Notice within the time specified in it, and had only complied in part by the time of the hearing on 23 October 2012, he had clearly committed professional misconduct under section 676(4) of the LP Act. 42Mr Pierotti argued further that the Solicitor's failures to respond to numerous requests made to him by investigators appointed by the Law Society amounted to continuing 'failure to assist the Investigator in the investigation of a complaint' as alleged in Ground 2. 43In Mr Pierotti's submission, this continuing failure satisfied the common law test of professional misconduct derived from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, because it would be 'reasonably regarded' as 'disgraceful and dishonourable' (or possibly as 'disgraceful or dishonourable' - this alternative formulation is used in some of the cases) by 'professional brethren of good repute and competency'. 44In support of this submission, he referred to passages in Malfanti v Legal Profession Disciplinary Tribunal & Anor [1993] NSWCA 171 at 5 and in Veghelyi v Council of the Law Society of New South Wales, Unreported, Supreme Court, 6 September 1989, Smart J. In the latter decision, his Honour said:- It is important that solicitors respond promptly to the [Law] Society when it asks for a response to complaints which have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often the reply should be delivered within a shorter period such as 7-10 days. Replies to the Law Society in respect of complaints warrant a high priority. Such replies should be full and complete and deal directly with the complaints made. 45With reference to the orders sought by the Law Society in the Application, Mr Pierotti pointed out that since the Solicitor did not hold a practising certificate, Order 2 was not apposite. He suggested that at the end of Order 3, the following words could usefully be added: 'or satisfies the Applicant's Manager, Professional Standards, by statutory declaration as to why he is unable to do so.' He submitted also that a suitable additional penalty, as contemplated in Order 5, would be a fine, adding in this connection that the Solicitor had claimed (though without supplying evidence) to be impecunious.

Discussion and conclusions 46With regard to Ground 1, we find that the Notice was duly served on the Solicitor for the purpose of carrying out a 'complaint investigation'. The nature of the information and documents required by the Law Society had previously been communicated to him. Having regard to this prior communication, the time specified for compliance - a period of 21 days - was reasonable. The Solicitor took no steps by way of compliance with the Notice within this period. He has still not complied fully. There is no evidence of matters that might constitute a reasonable excuse for his non-compliance. 47It follows that in relation to the Notice the Solicitor contravened subsection (3)(a) of section 676 of the Act and was guilty of professional misconduct under subsection (4) of this section. 48With regard to Ground 2, we find that the Solicitor did indeed fail to assist an Investigator appointed by the Law Society in the investigation of the complaint made against him by Ms Popovski. His failure continued throughout the period between 25 March 2010, when this complaint was first referred to him, until 20 August 2012, when he sent a statutory declaration to the Law Society. For the purposes of deciding whether it amounted to professional misconduct as alleged in the Application, the period to be taken into account is from 25 March 2010 until 23 September 2011, the date of the Application. 49In a recent case involving similar facts to the present case, Council of the Law Society of New South Wales v Tsalidis (No 3) [2012] NSWADT 229, the respondent solicitor was found guilty of professional misconduct under section 676(4) of the LP Act on account of his failure to comply with three notices issued to him under section 660 of the LP Act. The Law Society also alleged that he had committed professional misconduct at common law by virtue of having 'failed to assist the Law Society' in the investigation of the three complaints to which these Notices related. 50The Tribunal accepted the submission of counsel for the Law Society, summarised at [18], that 'although the first letters from the Law Society requiring information for the purposes of each investigation were sent in 2009 or 2010, it was not until April or May 2012 that he provided any of the information required'. 51At [21], it pointed out, citing the passage from Veghelyi that we have just quoted, that '[m]ore than once it has been emphasised that if an official investigation into the professional conduct of a legal practitioner has commenced, the practitioner is obliged to comply with any direction or request to render assistance'. 52At [23 - 24], the Tribunal said:- 23 In a number of recent decisions (see for example Law Society of New South Wales v Knudsen [2006] NSWADT 49 at [56 - 67] and Council of the Law Society of New South Wales v Autore [2012] NSWADT 139 at [29 - 43]), the Tribunal has been asked to make such a finding in circumstances, such as the present, where a disciplinary application against a solicitor or barrister has alleged both statutory professional misconduct for not complying with a notice served under section 660 of the Act or its predecessor (section 152 of the Legal Profession Act 1987) and misconduct at common law for 'failing to assist' the relevant investigation. These decisions indicate that the latter form of misconduct is not established merely by proof of the former, but also that it is possible for the two to coexist. 24 In our opinion, having regard to the reasoning adopted in these decisions, the matters to be taken into account in determining whether common law misconduct has in fact been committed in such situations include the following: (a) the length of time during which the respondent practitioner failed to comply with directions or requests to assist the investigation, including, but not limited to, the statutory Notice(s) issued by the investigator; (b) whether for any significant period or periods of time the investigator appeared not to be pursuing the investigation; (c) the number of occasions on which such directions or requests were addressed to the practitioner without generating any response; (d) the number of occasions, if any, on which the practitioner, having promised that assistance would be forthcoming, failed to abide by this promise; (e) whether the practitioner ever complied in part with a direction or request to assist the investigation and, if so, the extent to which he or she actually provided assistance; (f) the importance of the response(s) sought from the practitioner for the progress of the investigation; and (g) whether any mitigating factor falling short of a 'reasonable excuse' under section 676(4) of the Act - an example might be a depressive illness - was present. 53In Council of the Law Society of NSW v Ekes [2012] NSWADT 266 at [15], a case in which 'failure to assist an Investigator' was also put forward as the basis for a finding of professional misconduct at common law, the Tribunal quoted, with apparent approval, the list of relevant factors set out in the second of these paragraphs. 54Referring to these factors, we draw attention to the following aspects of the Solicitor's failure to assist the Investigator in the investigation of Ms Popovski's complaint: (a) the period during which this failure subsisted was almost exactly 18 months; (b) there was one period of time (from October 2010 to March 2011) during which the Investigator appeared not to be pursuing the investigation (see P10-11); (c) on seven occasions (see P2, P3, P5, P6, P7, P12 and P14) the Investigator required or requested assistance from the Solicitor but received no response within the time specified; (d) on one occasion (see P13) the Solicitor, having promised that assistance would be forthcoming, failed to abide by this promise; (e) during the relevant period, he did not assist the investigation at all (it was at a later time that he rendered assistance through complying partially with the Notice); (f) in the Notice, the number and nature of the questions asked of him and the range of the documents sought from him suggest that his assistance was of considerable importance for the progress of the investigation; and (g) while he claimed at the hearing on 2 October 2012 that his failure to comply with the Notice was attributable to serious problems in his personal relationships, he did not put forward any evidence to substantiate this claim. 55In our opinion, a reputable and competent legal practitioner, being aware of these aspects of the Solicitor's continuing failure to assist the Investigator and mindful also of the statement of principle quoted above from Veghelyi, would characterise this failure as 'disgraceful and dishonourable'. 56We accordingly find that the Solicitor was guilty of professional misconduct at common law as alleged in Ground 2. 57In view of our findings of professional misconduct under both Grounds, Order 1 of the orders sought by the Law Society is clearly appropriate. Order 3, with the amendment along the lines suggested by Mr Pierotti, is also appropriate. Order 4 - that the Solicitor pay the Law Society's costs - is required by section 566(1) of the LP Act because there is no evidence of 'exceptional circumstances' that would justify departing from the general requirement imposed by that provision. 58Referring to Order 5 of the orders sought, Mr Pierotti submitted that a fine should also be imposed on the Solicitor. Having given consideration to recent discussions of this matter in comparable cases - see for example Council of the Law Society of New South Wales v Tsalidis (No 2) [2010] NSWADT 297 at [44 - 45], Council of the Law Society of New South Wales v Carbone [2011] NSWADT 32 at [73 -74]) and Council of the Law Society of NSW v Autore [2012] NSWADT 139 at [66 - 69] - we are satisfied that in the ordinary course a fine would be warranted in addition to a reprimand. 59We have decided, however, that a fine should not be imposed. Our reasons are that a fine was not explicitly sought in the Application and was not mentioned as a possible penalty at the hearing (on 2 October 2012) that the Solicitor attended. We are reluctant to make an order of this nature in circumstances where the respondent practitioner had no notice that it might be made and no opportunity to argue that it should not be made. We emphasise, however, that this is the only ground on which we refrain from ordering that a fine be paid. 60We order as follows:- 1. The Respondent is guilty of professional misconduct as alleged in the Application. 2. The Respondent is reprimanded. 3. A practising certificate is not to be issued to the Respondent until he has complied with the Notice under section 660 of the Legal Profession Act served on him on 7 August 2010 or has satisfied the Applicant's Manager, Professional Standards, by statutory declaration as to the reasons why he is unable to do so. 4. The Respondent is to pay the Applicant's costs as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 January 2013