Council of the Law Society of New South Wales v Lee - [2024] NSWCATOD 108 - NSWCATOD 2024 case summary — Zoe

NSWNSWCATOD

Council of the Law Society of New South Wales v Lee

[2024] NSWCATOD 108

NCAT Occupational|2024-02-20

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2024-02-20

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Solicitors: Council of the Law Society of New South Wales (Applicant) File Number(s): 2022/00387744 Publication restriction: Nil

[2]

REASONS FOR DECISION

On 23 December 2022 the Applicant commenced proceedings against the Respondent by lodgment of an Application for Disciplinary Findings and Orders with the Tribunal. By an Amended Application for Disciplinary Findings and Orders lodged by the Applicant with the Tribunal on 19 March 2024, the Applicant amended the application. This decision proceeds on the basis of the Amended Application.
The Amended Application sets out in paragraphs 1 to 6 the orders sought by the Applicant from the Tribunal and thereafter the Amended Application sets out the grounds for the application including particulars.
The Amended Application reads as follows: ORDERS SOUGHT The Applicant seeks the following orders: 1. The Respondent be reprimanded. 2. The Respondent be required to pay a fine. 3. That no practising certificate be granted to the Respondent until she undertakes further education in the following terms: a. The Respondent undertake, complete and pass, at her own expense, a course that is approved by the Law Society of New South Wales' Director, Legal Regulation (Director) dealing with Practice Management (Course) and therein achieve a pass mark of not less than 65%. b. The Respondent shall, within seven (7) days of receipt of notification of the result of her participation in the Course, provide the original of such notification to the Director. 4. That the Respondent may not apply for a practising certificate that would authorise her to be a principal of a law practice until after she has held five (5) practising certificates in five (5) separate practising certificate years that authorise her to engage in supervised legal practice only. 5. The Respondent pay the costs of the Applicant as agreed or assessed. 6. Any further or other order the Tribunal deems fit. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) DEFINITONS EDR means Electronic Duties Return: a service that allows an approval holder (approved person) to electronically assess and endorse a range of duties transactions, and to pay duty by way of periodic remittance. Council means the Council of the Law Society. Law Practice means the law practice known as Pei Sze Lee t/as "NSW Solicitor" located at Burwood NSW 2134. Law Society means the Law Society of New South Wales. Manager means Mr Richard Stephen Savage who, on 26 July 2016, was appointed by the Council as manager to the Law Practice pursuant to s 334(2) of the Uniform Law. NAB means the National Australia Bank. OSR means the Office of State Revenue. SAI means SAI Global Pty Ltd. Uniform Law means the Legal Profession Uniform Law (NSW). Respondent means Ms Pei Sze Lee who is also known by her anglicised name, Carol Lee. Rules means the Legal Profession Uniform General Rules 2015. Transfer means the transfer of the property at proposed lot XXXXX Avenue, Edmondson Park to the purchasers XXXXX and XXXXX. [The address of the property and the identity of the purchasers have been removed in the interests of privacy]

[3]

GROUNDS The Respondent is guilty of professional misconduct on the basis that she engaged in the following conduct: 1. The Respondent failed to cooperate with, and thereby obstructed, the manager appointed to the Law Practice under s 334 of the Uniform Law. 2. The Respondent participated in the affairs of the Law Practice after service on her of notice of the appointment of the manager contrary to s 335(1) of the Uniform Law. 3. The Respondent engaged in legal practice when she was not entitled to do so contrary to s 10 of the Uniform Law. 4. The Respondent engaged in legal practice without holding professional indemnity insurance. 5. The Respondent failed to maintain legal files to a standard of competence and diligence of a reasonably competent lawyer. 6. The Respondent caused the Transfer to be stamped with transaction number 8286386-001 when she knew that duty had not been paid on the transaction, or she did not know and ought to have known whether duty had been paid on the transaction. 7. The Respondent caused the Transfer to be stamped with transaction number 8286386-001 when she knew that the Declaration for 'Off the Plan' Purchases had not been completed, or she did not know and ought to have known whether the Declaration for 'Off the Plan' Purchases had been completed. 8. The Respondent failed to comply with a notice issued to her pursuant to s 371 of the Uniform Law. PARTICULARS General 1. The Respondent: (a) was born on 23 September 1984; (b) was admitted as a lawyer in Queensland on 27 April 2009; (c) from 25 August 2009 to 30 June 2016 held a practising certificate issued by the Council; (d) has not held a practising certificate issued by the Council since 30 June 2016; and (e) during the following periods held the following positions at the following law practices: Period Law Practice Position 1 December 2009 - 30 April 2010 Alliance Law Group Pty Ltd Non-Principal 1 July 2010 - 1 March 2011 and 5 July 2012 to 1 July 2013 Jingxin Corporate Legal Services Pty Ltd (Jingxin) Non-Principal 1 March 2011 - 28 February 2012 Andresakis & Associates Non-Principal 1 July 2013 - 30 June 2014 Jingxin Principal 2 August 2013 - 30 June 2016 Law Practice Principal

[4]

Grounds 1 and 2 2. On 26 July 2016: (a) the Council resolved to appoint the Manager as manager to the Law Practice pursuant to s 334(2) of the Uniform Law; and (b) the Law Society served the notice of appointment on the Respondent. 3. On or about 27 July 2016 the Manager attended the premises of the Law Practice and requested that the Respondent provide him with all of the Law Practice's active client files. 4. The Respondent, without reasonable excuse, failed to cooperate with, and thereby obstructed the Manager in relation to the exercise of his functions under Part 6.4 of the Uniform Law, in that the Respondent: (a) withheld from the Manager some of the Law Practice's active client files despite his request to be provided with all of the Law Practice's active client files; (b) upon discovering in October 2016 client files at her property which were responsive to the Manager's request and that had not been provided to the Manager, provided the files to her solicitor, rather than to the Manager; and (c) retained approximately 150 of the Law Practice's client files until 19 August 2016. 5. On 27 July 2016 the Manager informed the Respondent that he did not authorise her to communicate with the Law Practice's clients other than in respect of two conveyancing matters to be settled on 27 July 2016. 6. Following the Manager's appointment, and service of the notice of the Manager's appointment on the Respondent, the Respondent participated in the affairs of the Law Practice without the Manager's direct supervision. In particular, from about July 2016 to August 2016 the Respondent: (a) sent emails to clients on active matters; (b) made telephone calls to clients; (c) communicated with the NAB concerning the transaction numbers for registration of particular property conveyances; (d) communicated with a client to seek written authority to release funds held in trust (by another solicitor) pending a property settlement; (e) communicated with a client concerning a delay in the settlement of a property conveyance; (f) forwarded correspondence to clients; (g) sent an "Off the Plan Declaration Form" to a client for completion; and (h) exchanged text messages with a client about the need to re-sign a property contract. 7. In the circumstances referred to in paragraphs 1 and 2 to 4 above the Respondent, contrary to s 364 of the Uniform Law, failed to cooperate with, and thereby obstructed, the Manager appointed to the Law Practice under s 334 of the Uniform Law. 8. In the circumstances referred to in paragraphs 1 and 2, 5 and 6 above the Respondent, contrary to s 335(1) of the Uniform Law, participated in the affairs of the Law Practice after service on her of the notice of appointment of the Manager. Ground 3 9. Between 1 July 2016 and 26 July 2016 the Respondent did not hold a practising certificate entitling her to engage in legal practice in New South Wales. 10. Between 1 July 2016 and 26 July 2016 the Respondent engaged in legal practice in that she provided legal services, including in relation to: (a) a matter for Ms XXXXX, involving the settlement of a property conveyance at Ashfield, NSW; (b) active conveyancing matters with the Law Practice; and (c) active conveyancing matters that were settling in respect of a development at Canterbury, New South Wales. 11. On 22 June 2016 and 23 June 2016 the Law Society sent the Respondent correspondence reminding her that she had not yet applied for renewal of her practising certificate, and reminding her of her obligation to renew her practising certificate. 12. On 7 July 2016 the Law Society sent the Respondent a letter informing her that her practising certificate had expired on 30 June 2016, and reminding her of her obligation not to practise as a solicitor in New South Wales unless she held a current practising certificate. 13. At the time of engaging in the legal work as described in paragraph 10 above the Respondent was not a licensed conveyancer under the Conveyancers Licensing Act 2003 (NSW). 14. In the circumstances referred to in paragraphs 9 to 13 above, the Respondent, contrary to s 10 of the Uniform Law, engaged in legal practice when she was not entitled to do so. Ground 4 15. The Applicant repeats paragraph 10 above. 16. Between 1 July 2016 and 26 July 2016 the Respondent did not hold professional indemnity insurance. 17. In the circumstances referred to in paragraphs 1, 15 and 16 above the Respondent, contrary to s 211 of the Uniform Law and Part 4.4 of the Rules, engaged in legal practice without holding professional indemnity insurance. Ground 5 18. Upon investigation by the Manager on 27 July 2016, the Respondent stored the files for the Law Practice at her home in plastic containers. 19. In relation to the Law Practice's files, which the Manager reviewed in July to August 2016: (a) No useful matter register had been maintained by the Law Practice. (b) Files were not kept in any recognisable order and many appeared to be incomplete. For example, most conveyancing files were missing the Contract for Sale. (c) Many files bore only anglicised adopted forenames of clients rather than the names of the clients that appeared on the contracts contained in the files. (d) At least 20 matters were identified in which registration had not occurred due to irregularities in the endorsements intended to evidence the payment of duty on the Contract for Sale and Transfer. 20. The Law Practice's files, which the Law Society's investigator reviewed in February 2016 to July 2016, contained: (a) no identity and contact information of the client; (b) no retainer agreement or costs disclosures; (c) no invoices; (d) no advices; (e) no file notes; and (f) no information about the status of the matter or whether it had been completed. 21. In the circumstances referred to in paragraphs 1, 18 and 19 above, the Respondent failed to maintain legal files to a standard of competence and diligence of a reasonably competent lawyer. Grounds 6 and 7 22. The Law Practice was registered as an "Approval Holder" with the then OSR. It transacted for the purposes of its conveyancing practice through EDR. 23. The approval to use EDR is subject to conditions prescribed by the Chief Commissioner (Division 2 of Part 6 of the Taxation Administration Act 1996). Conditions of approval include: (a) that all instruments must be endorsed with OSR-issued accountable stamps immediately after the duty liability on the instrument is confirmed by way of a Duties Notice of Assessment; and (b) the OSR must receive all EDR payments by the due date displayed on the Return Period Invoice or Duties Notice of Assessment. 24. The Respondent acted for the purchasers XXXX and XXXX on a contract for the purchase of the property at proposed lot XXXX Avenue, Edmondson Park. 25. The contract for sale was exchanged on 21 August 2015 and settlement took place on 1 July 2016. 26. Ms XXXX and Ms XXXX were financed in the purchase by the NAB, which was represented at the settlement by SAI. 27. The Transfer in the matter bore a stamp issued to the Law Practice as client 130926554, upon which had been endorsed "$10.00" Duty (for the Transfer) and an OSR transaction number 8286386-001. On the Transfer, the OSR transaction number 8286386-001 was crossed out and replaced with the number 8773491-001. 28. The transaction number 8286386-001 was an incorrect number and did not relate to the Law Practice. 29. The contract for sale was assessed for duty on 15 July 2016, two weeks after the date of settlement, and the date the stamped Transfer was delivered to SAI. 30. The Respondent caused the Transfer to be stamped with transaction number 8286386-001, when she knew that duty had not been paid on the transaction, or she did not know and ought to have known whether duty had been paid on the transaction. 31. The Respondent also signed a Declaration for "Off the Plan" Purchases (Declaration) on 11 July 2016, 10 days after settlement. The Declaration related to the duty payable on the contract and should have been lodged when stamping an "off the plan" purchase agreement. 32. The Respondent knew, or did not know and ought to have known, that the Declaration had not been completed and submitted to the OSR at the time the Transfer was stamped. 33. In the circumstances referred to in paragraphs 30 to 33 above the Respondent enabled settlement of the property to occur in circumstances where the Transfer and the Declaration indicated that duty had been paid on the Transfer, when in fact it had not been. Ground 8 34. On 28 July 2017 the Law Society sent the Respondent's legal representative a letter attaching a copy of a notice, issued pursuant to section 371 of the Uniform Law, which required the Respondent to produce specified information and documents to the Law Society on or before the 21st day after service of the notice, being 18 August 2017 (s 371 notice). 35. On 15 August 2017 the Respondent sought a four week extension of time to respond to the s 371 notice. The Law Society refused to extend time by four weeks, but granted an extension to respond by 1 September 2017. 36. On 31 August 2017 the Respondent sought a further two week extension of time to respond to the s 371 notice. The Law Society refused to extend time by two weeks, but granted an extension to respond by 4 September 2017. 37. The Respondent failed to respond to the s 371 notice by 4 September 2017, and therefore failed to comply with the s 371 notice. 38. The Respondent sought to respond to the s 371 notice as follows: (a) on 12 September 2017 she provided to the Law Society (through her solicitor) a statutory declaration she declared in Sydney on "13 September 2017". (b) On 14 November 2017 she provided to the Law Society (through her solicitor) an unsworn statutory declaration. (c) On 15 December 2017 she emailed to the Law Society (through her solicitor) a sworn version of the statutory declaration sent on 14 November 2017, sworn in Kuching, Sarawak (Malaysia). The original document was received by the Law Society on 18 or 19 April 2018. 39. In relation to the Respondent's statutory declaration provided on 12 September 2017, it did not provide all of the information that the s 371 notice required the Respondent to provide. Neither did the Respondent provide the documents specified in s 371 notice. 40. On 19 September 2017 the Law Society sent a letter to the Respondent (through her solicitor) stating that the Respondent in her response had not answered a majority of questions put to her in the s 371 notice 41. On 3 October 2017 the Respondent (through her solicitor) sent the Law Society an unaffirmed statutory declaration of the solicitor in which the solicitor sought to explain the delay in responding to the s 371 notice. 42. On 4 October 2017 the Law Society sent a further letter to the Respondent advising that a report to the Law Society's Professional Conduct Committee (PCC) about the complaint would be prepared on the basis of the then present material, and inviting the Respondent to provide anything further in relation to the s 371 notice, or in response to the complaint about her failure to respond to the s 371 notice, by 11 October 2017. 43. On 9 October 2017 the PCC resolved that it was of the opinion that, subject to any submissions, it should resolve to initiate and prosecute proceedings against the Solicitor in the Civil and Administrative Tribunal, Occupational Division, as it was the Committee's opinion that the alleged conduct may amount to professional misconduct pursuant to section 300(1) of the Uniform Law. It was alleged that the Respondent had "failed to comply with a notice issued pursuant to section 371 of the Legal Profession Uniform Law (NSW)". 44. On 24 October 2017 the Law Society invited the Respondent's submissions in response to the resolution within 14 days. On 7 November 2017 the Respondent (through her solicitor) sent a letter to the Law Society foreshadowing a further response to the s 371 notice. 45. On 15 December 2017 the Law Society received from the Respondent Solicitor a statutory declaration dated 15 November 2017. In that statutory declaration the Respondent provided some response to the outstanding questions in the s 371 notice, although for the most part, her response to the questions asked was that she could not recall. No additional documents were provided. 46. In the circumstances referred to in paragraphs 34 to 45 above the Respondent failed to comply with a notice issued to her pursuant to s 371 of the Uniform Law.

The Respondent has filed an Amended Reply to the Amended Application. The Amended Reply may be summarised as follows: 1. The Respondent states that in the event of a finding of professional misconduct or unsatisfactory professional conduct she seeks orders to the effect that she be reprimanded, allowed to apply for an unrestricted practising certificate in the year commencing 1 July 2024, be required to undertake further legal education as the Tribunal considers appropriate before applying for a practising certificate and that there be no order for costs. 2. In the event that a finding of professional misconduct or unsatisfactory professional conduct is not made the Respondent seeks orders to the effect that she be allowed to apply for an unrestricted practising certificate in the year commencing 1 July 2024 and that the Applicant pay her costs.
The Amended Reply responds to the grounds in the Amended Application as summarised below: 1. In response to ground 1, the Respondent denies failing to cooperate with and thereby obstructing the manager appointed to the Law Practice. 2. In response to ground 2, the Respondent admits that she participated in the affairs of the Law Practice after service of notice of the appointment of the manager contrary to s 335(1) of the Uniform Law but denies that it justifies a finding of professional misconduct. 3. In response to ground 3, the Respondent admits that she engaged in legal practice when she was not entitled to do so contrary to s 10 of the Uniform Law but denies that this justifies a finding of professional misconduct. 4. In response to ground 4, the Respondent admits that she engaged in legal practice without holding professional indemnity insurance, but denies that this justifies a finding of professional misconduct. 5. In response to ground 5, the Respondent admits that there were deficiencies in the maintenance of her legal files but denies that it was to such a low standard of competence and diligence to justify a finding of professional misconduct. 6. In response to ground 6, the Respondent admits the transfer on the conveyance with OSR reference 8773491-00 was stamped using a transfer that had been stamped under OSR no 8286386-00 and that it could have been caused by the Respondent or the Respondent's staff but the Respondent denies any dishonesty and any allegation that this justifies a finding of professional misconduct. 7. In response to ground 7, the Respondent admits that documents suggest the Transfer was stamped with transaction number 8286386-001 when the Declaration for "Off the Plan" purchases had not been completed but the Respondent says that she cannot remember signing the document and denies that this justifies a finding of professional misconduct. 8. In response to ground 8, the Respondent denies that she failed to comply with a notice issued to her pursuant to s 371 of the Uniform Law.

[8]

Ground 1

In support of ground 1 the Applicant submitted that the evidence of Mr Savage demonstrates that the Respondent failed to cooperate and thereby obstructed Mr Savage in the performance of his obligations. He was appointed manager of the Law Practice under s 334 of the Uniform Law on 26 July 2016. He sent a notice of his appointment to the Respondent on the same day by email and met the Respondent at her home on the following day (27 July 2016).
The Applicant submitted that by s 364 of the Uniform Law the Respondent was obliged not to obstruct an external intervener exercising a function under the Law without reasonable excuse. An "external intervener" includes a manager.
The affidavit of Mr Savage establishes that when he met the Respondent on 27 July 2016, he stated that he needed to be provided with all the active client files of the Law Practice. He directed the Respondent not to participate in the affairs of the Law Practice to any extent other than in respect of two conveyancing matters which were to be settled that day.
The affidavit of Ms Griswold attaches an affidavit of Anthony James Lean dated 22 December 2022. He is no longer employed by the Applicant but was the Director, Legal Regulation of the Applicant. His affidavit attaches a statutory declaration of the Respondent provided to the Applicant on or about 18 October 2016. At [33] of that statutory declaration the Respondent stated that she did not hand over to Mr Savage all active files during the period towards the end of July and the beginning of August 2016. She stated that she handed over to Mr Savage all active files where "work needed to be done in the coming month, as well as files for completed matters". She also stated that she "did not hand over to Mr Savage files for about 150 matters. For these matters, no work needed to be done in the coming one or two months. However, work would need to be done at a later point in time when the settlement dates for the off-the-plan conveyances approach". The evidence also establishes that the Respondent discovered some additional files that she had not produced to Mr Savage and that she provided those files to her solicitor (Juris Cor Legal). The evidence of Mr Savage is that she also failed to respond to Mr Savage's requests to provide a copy of the office account statements and delayed until 5 August 2016 in removing funds from the office account as she had been requested to do so by Mr Savage on 29 July 2016. There was further evidence from Mr Savage that the Respondent had not provided assistance in locating missing files and contracts.
The Applicant submitted that the evidence establishes that the Respondent failed to engage appropriately with Mr Savage in order to permit him to fulfil his functions under s 334 of the Uniform Law by obstructing him in his role as manager - without any reasonable excuse. The Applicant submitted that the conduct of the Respondent constituted serious misconduct because it undermined the function of the manager who has a specific statutory role to perform and potentially prevented the manager taking action necessary to protect the interests of clients of the Law Practice.
The Applicant submitted that the evidence establishes that the Respondent's contravention of s 334 amounts to professional misconduct under s 297(1)(a) as a substantial failure to reach or maintain a reasonable standard of competence and diligence. It was submitted that it was also professional misconduct under s 297(1)(b) of the Uniform Law as the conduct warrants a finding that the Respondent is not a fit and proper person to engage in legal practice.
In response to the Applicant's submissions the Respondent's submissions, with respect to ground 1, are summarised in the following paragraphs.
The Respondent's counsel provided written submissions and supplemented these with oral submissions at the hearing on 27 May 2024. The Respondent submitted that she handed to Mr Savage's agent a few days after his attendance at her home some 300 files. Further, following Mr Savage's request on 29 July 2016 to remove funds from the office account, the Respondent complied with that request on 5 August 2016. She also acknowledged not handing over some 150 files because they were files not requiring any work to be done "in the coming one or two months". She also stated that she delivered files for "more remaining matters" to Mr Savage on 19 August 2016.
The thrust of the Respondent's oral submissions at the hearing was to the effect that the Respondent was under a degree of stress and confusion and that to some extent she did cooperate with Mr Savage. The Respondent submitted that s 364 provides for a "reasonable excuse" defence, that she did not in fact obstruct Mr Savage to sufficiently engage the section and that she did not act with the intention of deceiving Mr Savage or acquiring any personal benefit. There was evidence that she thought that his appointment was of a short duration caused by the fact that her practising certificate had not issued. After 23 August the Respondent achieved a higher level of clarity as to her position and from then on, she endeavoured to cooperate. The Respondent further submitted that a finding of professional misconduct normally involves an element of dishonesty or personal gain or gross incompetence. Here, there was no dishonesty and no gross incompetence.
The Respondent submitted that ground 1 should be rejected.

[9]

Ground 2

This ground concerns the requirement imposed by s 335(1) of the Uniform Law to the effect that after service on a law practice of a notice of the appointment of a manager for the law practice and until the appointment is terminated, a legal practitioner associate of the practice who is specified or referred to in the notice must not participate in the affairs of the practice except under the direct supervision of the manager.
Section 335 of the Uniform Law provides: 335 Effect of service of notice of appointment (1) After service on a law practice of a notice of the appointment of a manager for the law practice and until the appointment is terminated, a legal practitioner associate of the practice who is specified or referred to in the notice must not participate in the affairs of the practice except under the direct supervision of the manager. Penalty: 100 penalty units. (2) After service on an ADI of a notice of the appointment of a manager for a law practice and until the appointment is terminated, the ADI must ensure that no funds are withdrawn or transferred from a trust account of the law practice unless - (a) the withdrawal or transfer is made by cheque or other instrument drawn on that account and signed by the manager, a receiver appointed for the law practice or a nominee of the manager or receiver; or (b) the withdrawal or transfer is made by means of electronic or internet banking facilities, by the manager, a receiver appointed for the law practice or a nominee of the manager or receiver; or (c) the withdrawal or transfer is made in accordance with an authority to withdraw or transfer funds from the account and signed by the manager, a receiver appointed for the law practice, or a nominee of the manager or receiver. Civil penalty: 100 penalty units. (3) After service on a person of a notice of the appointment of a manager for a law practice and until the appointment is terminated, the person must not - (a) deal with any of the law practice's trust money; or (b) sign any cheque or other instrument drawn on a trust account of the law practice; or (c) authorise the withdrawal or transfer of funds from a trust account of the law practice. Penalty: 100 penalty units. (4) A manager may, for the purposes of subsection (2)(b), enter into arrangements with an ADI for withdrawing money from a trust account of the law practice concerned by means of electronic or internet banking facilities. (5) Any money that is withdrawn or transferred in contravention of subsection (2) may be recovered from the ADI concerned by the manager, or a receiver for the law practice, as a debt in any court of competent jurisdiction, and any amount recovered is to be paid into a trust account of the law practice or another trust account nominated by the manager or receiver. (6) Subsection (3) does not apply to a legal practitioner associate referred to in subsection (1), an ADI or the manager or receiver for the law practice.
The Applicant submitted that the evidence of Mr Savage was that he directed the Respondent not to participate in the affairs of the Law Practice to any extent whatsoever, other than in respect of two conveyancing matters that were to settle on the day he met the Respondent (27 July 2016). The evidence tendered by the Applicant in the Affidavit of Ms Griswold established that the Respondent continued to perform legal services for clients (other than the two approved) notwithstanding Mr Savage's direction. This included the Respondent communicating with National Australia Bank concerning transaction numbers for registration of particular property conveyances, communicating with a client to seek written authority to release funds held in trust (by another solicitor) pending a property settlement, communicating with the client concerning a delay in the settlement of a property, forwarding correspondence to clients, sending an "off-the-plan declaration form" to a client for completion and exchanging text messages with a client about the need to re-sign a property contract.
The Respondent's counsel conceded that this ground has been established to the extent that it would be appropriate for the Tribunal to make a finding to the effect that the Respondent had engaged in unsatisfactory professional conduct. However, the Respondent submitted that a finding of professional misconduct should not be made. In support of this contention, the Respondent submitted that the evidence concerning the Respondent's conduct came from the Respondent herself - see, for example, her statutory declaration dated 18 October 2016. The Respondent's counsel submitted that the Respondent was confused as to what she could or could not do, felt under pressure to communicate with various stakeholders in the way that she did, was not seeking any self-gain nor seeking to deceive Mr Savage or avoid the operation of his management. The Respondent submitted that her activities were intended to assist clients.

[10]

Ground 3

This ground concerns the contention that the Respondent engaged in legal practice when she was not entitled to do so, contrary to s 10 of the Uniform Law
Section 10 of the Uniform Law requires an entity not to engage in legal practice unless it is a "qualified entity" (defined in s 6). An Australian legal practitioner who holds a current Australian practising certificate is a qualified entity.
The Applicant submitted that between 1 July 2016 and 26 July 2016 the Respondent did not hold a current Australian practising certificate.
Mr Griswold's affidavit established that the Applicant sent to the Respondent a letter dated 23 June 2016 reminding the Respondent of the need for her to renew her practising certificate. That affidavit also attached an email from the Respondent dated 26 July 2016 in which the Respondent acknowledged the delay in applying for the practising certificate attributing the delay to "large workload". The affidavit also contained evidence that the Respondent subsequently applied for the grant of a practising certificate for the year ending 30 June 2017 and that by letter dated 16 September 2016 the Applicant advised the Respondent that her application had been considered and refused.
The Respondent's statutory declaration of 18 October 2016 contained evidence of work undertaken by the Respondent from 1st July 2016. This work involved advising a client, who resided in China, about her forthcoming conveyancing settlement. The Applicant submitted that the evidence established that the Respondent received into her office account on 20 and 21 July 2016 sums of money totalling approximately $193,000 from the client for the purposes of settling the client's conveyance. The Respondent did not then have a trust account.
The Applicant submitted that the evidence establishes that the Respondent breached s 10 of the Uniform Law having engaged in legal practice for a period at which time she was not an Australian legal practitioner. Further, the Applicant submitted that such conduct constitutes serious misconduct circumventing the protections that the Uniform Law provides for clients who engage lawyers. The Applicant submitted that the Respondent's conduct is indicative of a substantial failure to reach and maintain a reasonable standard of competence and diligence and is conduct that would justify a finding that she is not a fit and proper person to engage in legal practice. The Applicant's submission is that the Respondent's conduct is professional misconduct under s 297(1)(a) and/or (1)(b) of the Uniform Law.
We interpose here to record that the affidavit of Mr Livermore contains an attachment being an email he sent to the Respondent on Friday 22 July 2016. In that email he confirms a conversation he had with the Respondent advising the Respondent that she can no longer practice law and therefore cannot run the law practice because she has not renewed her practising certificate.
The Respondent's written submissions stated that between 22 July and 26 July the Respondent did not actively continue to practice. This submission states that "Rather, she was dealing with the flow-on of matters which, prior to 22 July 2016, she was actively running". The submissions acknowledge that between 1 July 2016 and 22 July 2016 the Tribunal may find that the Respondent erred in failing to renew, but she was not actively aware that she did not have a practising certificate. The submissions refer to the Respondent's evidence that she had been overwhelmed by workload and forgot to renew. There is no evidence of the Respondent behaving dishonestly, the period in which she was practising was over a relatively short timeframe and the explanations she has provided do not support a finding of professional misconduct.
At the hearing Counsel for the Respondent conceded that a finding of unsatisfactory professional conduct was open to the Tribunal.

[11]

Ground 4

Ground 4 contends that the Respondent engaged in legal practice in breach of s 211 of the Uniform Law by doing so without an approved professional indemnity insurance policy. Section 211 stipulates that an Australian legal practitioner must not engage in legal practice unless the practitioner holds or is covered by an approved insurance policy.
The Applicant submitted that the evidence discloses that between 1 July 2016 and 26 July 2016 the Respondent did not hold, or was not covered by, an approved insurance policy covering the Law Practice. In submissions made to the Applicant on her behalf by her solicitors (ie in a letter dated 20th October 2016) the Respondent admitted having failed to have professional indemnity insurance during this period. As with ground 4, the Respondent's explanation for her failure to hold appropriate insurance was that she was experiencing a heavy workload.
The Applicant relies on the same conduct of the Respondent identified with respect to ground 4, by which it is said that the Respondent engaged in legal practice between 1 July 2016 and 26 July 2016 and the Applicant submitted that the alleged breach of s 211 of the Uniform Law is established.
The Applicant submitted that conduct consisting of a contravention of the Uniform Law is capable of amounting to unsatisfactory professional conduct or professional misconduct: s 298(a). The Respondent's conduct in engaging in legal practice without the required insurance is serious misconduct. The objectives of Part 4.4 (in which s 211 is located) are set out in s 209 and include the objective that the requirement is intended to ensure that clients of law practices have adequate protection against the consequences of professional negligence. The Applicant submitted that the Respondent's breach of s 211 amounts to professional misconduct under s 297(1)(a) of the Uniform Law as it constitutes a substantial failure to reach or maintain a reasonable standard of competence and diligence.
The Respondent's submissions with respect to ground 4 are the same as the submissions responsive to ground 3 and at the hearing the Respondent's counsel conceded that a finding of unsatisfactory professional conduct may be made by the Tribunal.

[12]

Ground 5

Ground 5 concerns the Applicant's contention that the Respondent failed to maintain legal files to a standard of competence and diligence of a reasonably competent lawyer. The particulars concerning ground 5 have been set out earlier in this decision and concern four specific issues identified in subparagraphs (a) to (d) inclusive. Those particulars come from the observations of Mr Savage and in particular his interim reports dated 9 and 16 August 2016, copies of which are exhibited to his affidavit.
On 16 February 2017 the Applicant appointed Ms Lucia Moliterno to prepare an investigator's report. The affidavit of Ms Griswold discloses that Ms Moliterno was appointed an investigator on 16 February 2017 by the Applicant acting pursuant to s 162 of the Uniform Law to investigate aspects of the affairs of the law practice of which the Respondent was the principal. The affidavit of Ms Moliterno discloses that she is a sole practitioner and exhibited to her affidavit is a report concerning the Law Practice dated 7 July 2017.
In relying upon the report of Ms Moliterno, the Applicant noted that Ms Moliterno had reviewed 26 client files of the Law Practice in detail and conducted a more limited review of 15 additional files as well as bank statements of the law practice. Paragraph 5.7 of Ms Moliterno's report states that her task of reviewing files held by the Respondent "has proved difficult and time-consuming due to the lack of material on them, including the inability to determine the identity and other details of the clients for which [the Respondent] was acting. Additionally, the files were not kept in an orderly manner". Specific deficiencies of the various files of the Law Practice as recorded by Ms Moliterno were: 1. no identity and contact information of the client, 2. no retainer and agreements or cost disclosures, 3. no tax invoices for work performed, 4. no advice to clients, 5. no written or typed file notes of any meaningful kind, 6. no information about the status of the matter or whether it had been completed.
In paragraph 6.5 of Ms Moliterno's report (on page 26), the report stated that the "systematic mode of handling files by [the Respondent] suggests a high level of incompetence. As outlined in this report, it also provides evidence of its dangers and the dire consequences which flow from it. The purchase prices in a number of the matters I reviewed are quite substantial and a few exceed millions of dollars… requiring the exercise of a high degree of care and skill".
The Applicant's submissions drew attention to the submission made on behalf of the Respondent dated 20 October 2016 from her solicitors in which the Respondent admitted that she had failed to maintain legal files to a standard of competence and diligence of a reasonably competent lawyer. She admitted that she had failed to maintain a register of files opened which complied with r 93 of the Uniform Rules.
The Applicant submitted that the keeping of client files in an orderly manner is a fundamental obligation of a practitioner and that the evidence has established that the Respondent's conduct amounted to professional misconduct under s 297(1)(a) of the Uniform Law. It constituted both a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence in keeping a file.
The Respondent's submissions were to the effect that the Respondent had herself made significant admissions, which demonstrated a level of self-awareness. The Respondent submitted that she has the capacity to effectively run files when she applies herself and that there is evidence in the report of Ms Moliterno to the effect that she (the Respondent) successfully completed conveyances. The Respondent's counsel pointed to evidence (such as a comprehensive advice to a client referred to in the report of Ms Moliterno) which demonstrated that the Respondent has the requisite level of knowledge and competence. In short, the submission on behalf of the Respondent was that the particulars relied upon by the Law Society were "out of character".

[13]

Grounds 6 and 7

These two grounds arise out of the conveyance where the Respondent acted for purchasers as detailed in the report of Ms Moliterno at [5.7.26]. The conveyance settled on 1 July 2016. The grounds concern the contention that the Respondent caused the conveyancing transfer to be stamped with a particular transaction number when the Respondent knew that duty had not been paid on the transaction or did not know or ought to have known whether duty had been paid.
The Applicant submitted that at settlement a stamped and executed transfer for the property was delivered to the purchasers with a discharge of mortgage and certificate of title. The purchasers were financed by the National Australia Bank (NAB) and represented at settlement by SAI Global Ltd. After Mr Savage's appointment as manager of the Law Practice, he received from SAI Global a schedule of matters where the Law Practice had acted for the purchasers and where registration of the transfer and mortgage had not been possible due to requisitions issuing from NSW Land & Property Information requiring amendments to the transfer to show a correct Office of State Revenue (OSR) ID to evidence duty having being paid.
Before settlement on a property can be effected, and to enable the subsequent registration of title documents with NSW Land & Registry Services (formerly NSW Land & Property Information) the Contract for Sale and Transfer must be stamped with applicable duty. The Transfer bears the Respondent's signature as signatory. The Transfer bore a stamp issued to the Law Practice as client 130926554. Endorsed on the stamp was $10 for duty on the Transfer and an OSR transaction number 8286386- 001. That transaction number was an incorrect number that did not relate to the Law Practice. That incorrect transaction number was crossed out, with the correct transaction number 8773491-001 added.
The Applicant's submissions go on with further detail as follows: 1. The Contract for Sale was assessed for duty on 15 July, about two weeks after the date of settlement and the date the stamped Transfer was delivered to SAI Global. 2. The Applicant submitted that the Respondent caused the Transfer to be stamped with transaction number 8286386001 before duty had been assessed or paid and when she knew that the duty had not been assessed or paid on the transaction. Or, at the least, that she caused the Transfer to be stamped, when she did not know but ought to have known whether duty had been assessed and paid. 3. On 11 July 2016 (ie. 10 days after settlement) the Respondent also signed a Declaration for "Off-the-Plan" purchases (the Declaration). As the Declaration related to the duty payable on the contract for purchase of the property it should have been lodged with the OSR prior to settlement.
The Applicant submitted that the conduct of the Respondent amounts to professional misconduct under either s 297(1)(a) and/or (b) of the Uniform Law. It constitutes a failure to reach or maintain a reasonable standard of competence and diligence in conveyancing on behalf of client. The Applicant submitted that, in the alternative, the Respondent's conduct indicates that she is not a fit and proper person to engage in legal practice.
We interpose here to record that in the report of Ms Moliterno, she states that the quoting of the incorrect transaction number on the Transfer when it was first lodged for registration had the following consequences: 1. It induced NAB (through its agent) to effect settlement in the belief that duty had been paid under that transaction number, which turned out to be incorrect. 2. It purported to use funds which belonged to a third party because the transaction number did not correspond to that assigned to the [Respondent] by OSR. 3. It delayed the registration of the Transfer by three months. 4. Presumably, it has delayed the registration of some other transfer to which the transaction number belonged.
The Applicant submitted that it was open to the Tribunal to conclude that the Respondent knew or should have known that no duty had been assessed. The Respondent was the only solicitor in the Law Practice.
Counsel for the Respondent submitted that the allegation put under this ground is very serious and that the Tribunal should apply the Briginshaw standard of proof. Counsel submitted that there was no direct evidence of the Respondent's involvement and no evidence of personal gain. The Respondent had employees and it is possible that a member of the staff could have been involved in the stamping of the Transfer. Further, counsel contended that the practice of the Respondent was to have clients pay stamp duty and it can be inferred that the clients in this case paid the duty. The Respondent cannot remember signing the statutory declaration.
In reply counsel for the Applicant submitted that at the very least someone under the supervision of the Respondent did sign the Transfer and the Respondent was responsible for what occurred.

[14]

Ground 8

Ground 8 concerns a failure by the Respondent to comply with a notice issued to her pursuant to s 371 of the Uniform Law. Section 371 states the following: 371 Requirements--complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to a lawyer or law practice, an investigator may, by notice served on the lawyer or a legal practitioner associate of the law practice (as the case requires), require the lawyer or associate to do any one or more of the following-- (a) to produce, at or before a specified time and at a specified 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 cooperate with, the investigation of the complaint in a specified manner. (2) For the purpose of carrying out a complaint investigation in relation to a lawyer or law practice, the investigator may, on production of evidence of his or her appointment, require any person (other than the lawyer) who has or had control of documents relating to the subject matter of the complaint to give the investigator either or both of the following-- (a) access to the documents relating to the affairs of the lawyer that the investigator reasonably requires; (b) information relating to the affairs of the lawyer that the investigator reasonably requires (verified by statutory declaration if the requirement so states). (3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. 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. (5) If a notice under subsection (1) is served on the lawyer or legal practitioner associate by the investigator personally, the investigator must produce evidence of his or her appointment for inspection at the time of service.
On 28 July 2017 the Applicant served the s 371 notice on the Respondent. By the notice the Applicant sought information from the Respondent about a number of client matters referred to in Ms Moliterno's report. The notice required the information to be provided on a day before the 21st day after service of the notice, and subsequent extensions of time were granted.
The Applicant's submissions state that the following then occurred: 1. On 12 September 2017 the Respondent's solicitors sent an email to the Applicant attaching a statutory declaration of the Respondent (purportedly declared on 13 September 2017) and which sought to address the s 371 notice. 2. On 19 September 2017 the Applicant sent a letter to the Respondent acknowledging her response to the s 371 notice but stating that the Respondent "does not answer to the majority of questions put to her in the Notice". 3. On 3 October 2017 the Respondent's solicitor sent the Applicant a statutory declaration made by the Respondent's solicitor purporting to explain the reasons for the delay in the Respondent responding to the s 371 notice. 4. On 4 October 2017 the Applicant responded to confirm that its concern was not simply that the Respondent had failed to respond to the notice within the statutory timeframe, but that she had not answered the majority of questions put to her and had provided instead a "general response to most questions". 5. On 14 November 2017 the Respondent's solicitor sent to the Applicant by email a further (but unsworn) statutory declaration of the Respondent addressing the questions asked of her in the s 371 notice. 6. On 15 December 2017 the Respondent's solicitor sent to the Applicant a sworn copy of the statutory declaration, sworn in Malaysia.
The Applicant's submissions point out that a person issued with s 371 notice must comply with it and that a failure to comply with a requirement to produce documents, provide information or otherwise assist in, or cooperate with, an investigation is capable of constituting unsatisfactory professional conduct or professional misconduct: s 466(6) of the Uniform Law.
The Applicant submitted that the evidence demonstrates that the Respondent failed to respond to the s 371 notice within the timeframe required, even allowing for extensions of time which were granted by the Applicant. When the Respondent did respond to the notice, it was demonstrably deficient in failing to respond to each of the specific questions asked. The Respondent ultimately did provide a more detailed response although the responses for the most part were vague or generalised.
The Applicant submitted that the Respondent failed to comply with a requirement under s 371 and that the Respondent's failure constitutes professional misconduct.
The Respondent submitted that the delays in her response were not unreasonable. The notice came, without warning, nine months after the Respondent or her solicitors had received any substantial communication from the Applicant. The notice contained many questions which required detailed responses and the notice was served with and required reference to the report of Ms Moliterno. That report contained 1241 pages. The questions spanned over many years and the Respondent did not have the benefit of the actual files. Serious matters were raised and required careful analysis and drafting by the Respondent and her solicitor. Part of the delay was caused by her solicitors as is evidenced by the statutory declaration of her solicitor sworn 4 October 2017 and, in a letter sent by the solicitors on 7 November 2017.
The Respondent further submitted that the information provided was responsive to the notice. Responses were initially provided in the statutory Declaration sworn 13 September 2017. By her statutory declaration sworn 15 November 2017, the Respondent provided more responses.
The Respondent submitted that the allegation that the Respondent failed to comply with the notice is not made out.

[17]

Ground 1

We are satisfied that on 27 July 2016 Mr Savage gave a clear direction to the Respondent that he needed to be provided with all active client files of the Law Practice and that he directed the Respondent not to participate in the affairs of the Law Practice to any extent other than to act on the settlement of two conveyancing matters due to be settled that day. We are comfortably satisfied (as the Applicant has submitted) that: 1. The Respondent failed to immediately hand over to Mr Savage all active client files and in particular withheld about 150 active files until about 19 August 2016. 2. Later in October 2016 the Respondent provided additional files to her solicitor rather than to Mr Savage after discovering the additional files that she had not produced to Mr Savage. 3. The Respondent failed to respond to Mr Savage's request to provide a copy of the office account statements. 4. The Respondent delayed until 5 August 2016 in removing funds from the office account of the Law Practice as she had been requested to do by Mr Savage on 29 July 2016. 5. The Respondent provided Mr Savage with no assistance in locating missing files and contracts.
We agree with the Applicant's submissions that the findings set out above are clearly established through the evidence of Mr Savage, Ms Griswold and Mr Lean. The particulars set out in the Amended Application are each made out.
We find that the conduct of the Respondent breached s 364 of the Uniform Law in that her lack of cooperation with the requirements of the manager constituted an obstruction in the manager's exercise of his functions under the Uniform Law. There was no reasonable excuse available to the Respondent.
We acknowledge that the Respondent did provide the 150 active files after a period of time and that further files were accessed by the manager at a later time. However, in our view, the Respondent did not act with the level of diligence required of her under s 364 of the Uniform Law.
We find that the Respondent's contravention of the obligations imposed under s 364 can be categorised both as professional misconduct under s297(1)(a) as a substantial failure to reach or maintain a reasonable standard of competence and diligence and also as unsatisfactory professional conduct in that the conduct of the Respondent fell short of the standard of diligence and competence required of her.
We note that there is evidence that the Respondent thought that the appointment of the manager to the Law Practice might be of short duration because she had applied for the renewal of her practising certificate. In our view that belief does not provide a reasonable excuse for her failure to cooperate with Mr Savage. The Respondent admitted in cross-examination that nothing was said by any representative of the Applicant that documents need not be handed over to the manager (T20.50 to T21.1-2).
In our view ground 1 is made out.

[25]

The Protective Orders

As the Applicant's written submissions state the purpose of the Tribunal's jurisdiction to make orders in the context of solicitor disciplinary matters is not punitive but rather protective. In Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at [28], Sheller JA said that: "The primary consideration is to protect the public by preventing a person unfit to practice from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. The Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner".
Additionally, the Tribunal's function is consistently educative "publicly marking the seriousness of what the instant solicitor has done" (per Mahoney JA in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441).
We agree that it is appropriate that the Respondent be reprimanded and note that the Respondent does not oppose that order.
Secondly, we agree with the Applicant that it is appropriate that the Respondent pay a fine. The purpose of imposing a fine is to mark the Tribunal's disapproval of the solicitor's conduct (Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40]. The fine to be imposed must convey to the legal profession and to the community in general that such conduct is unacceptable (Russo v Legal Services Commissioner [2016] NSWCA 306 at [82]).
The Applicant has proposed a fine in the range of between $10,000 to $15,000. We were not supplied with any evidence as to the financial capacity of the Respondent, but note that the Respondent has apparently not been able to work as a legal practitioner for a considerable period. However, it appears she has practised as a conveyancer. We are of the opinion that the imposition of a fine in the sum of $10,000 is sufficient to mark our disapproval of the Respondent's conduct as well as to act as a sufficient deterrent more generally.
Thirdly, it is appropriate that the Respondent be ordered to take a course in practice management and we agree with the terms of the order proposed by the Applicant. We note that the Respondent does not oppose that order.
Fourthly, we agree with the Applicant that the Respondent should be restricted from applying for a principal's practising certificate unless she has held five practising certificates in five separate practising certificate years authorising her to engage only in supervised legal practice. This order is appropriate both for the Respondent's own purposes to develop as a legal practitioner, but also as a reasonable protection to the public.
We should add that the Respondent presented to us during the course of her cross-examination as someone who found it difficult to face up to her professional responsibilities which involved complying with the various provisions of the Uniform Law. She seemed to be of the opinion that as long as she acted in the interests of her clients by carrying out their instructions the necessity for a practising certificate and professional indemnity insurance could be sorted out in due course. One purpose of the course proposed by the Applicant is to refresh the Respondent's knowledge of her professional obligations to comply with the law generally, particularly the law regulating legal practitioners. The purpose of the order requiring her to practice in a supervised way for five years is to ensure that she experiences a professional environment that exposes her to the correct ways of discharging her professional responsibilities and, in addition to protect clients.
Accordingly, we make the orders proposed by the Applicant in the amended application as follows: 1. The Respondent is reprimanded. 2. The Respondent is to pay a fine of $10,000 to the Applicant within 2 months or such longer period agreed by the Applicant. 3. No practising certificate is to be granted to the Respondent until she undertakes further education in the following terms: 1. The Respondent must undertake, complete and pass, at her own expense, a course that is approved by the Law Society of New South Wales' Director, Legal Regulation (Director) dealing with Practice Management (Course) and therein achieve a pass mark of not less than 65%. 2. The Respondent shall, within seven (7) days of receipt of notification of the result of her participation in the Course, provide the original of such notification to the Director. 1. The Respondent may not apply for a practising certificate that would authorise her to be a principal of a law practice until after she has held five (5) practising certificates in five (5) separate practising certificate years that authorise her to engage in supervised legal practice only.

[26]

Costs

At the hearing the Respondent's counsel addressed us briefly on the question of what costs order should be made. Counsel submitted that the original application lodged by the Applicant contained three grounds which were subsequently dropped. Counsel submitted that if a ground is not sustained, then the Respondent should not have to pay costs with respect to a ground which has been dropped or was not made out.
Further, counsel for the Respondent submitted that there had been considerable delay in the Applicant prosecuting these proceedings and such delay should be taken into account in the Respondent's favour when considering what costs order should be made. Counsel submitted that these factors may amount to exceptional circumstances working in favour of the proposition that the Applicant should not have an unqualified costs order.
In view of the inadequate time remaining available we directed the parties to lodge submissions with respect to costs. The Applicant subsequently did so. The Respondent did not file any further submissions but did lodge evidence that she had paid for professional indemnity insurance for the year 2016/17 and further that she had been registered with the Office of the Chief Commissioner for State Revenue for "eDuties". It appears that the Respondent now practices as a conveyancer.
The Applicant's submissions on costs can be summarised as follows: 1. Clause 23 of schedule 5 to the NCAT Act provides that the Tribunal "must" make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs unless the Tribunal is satisfied that the exceptional circumstances exist. Similar provisions are contained s 303 of the Uniform Law. 2. Exceptional circumstances have been held by the Tribunal to be circumstances that are out of the ordinary or unusual or special or uncommon, but need not be unique or unprecedented, or very rare. That description of exceptional circumstances has been applied in Council of the New South Wales Bar Association v BRJ (No 2) [2015] NSWCATOD 140 at [22]. 3. Contrary to the submissions advanced on behalf of the Respondent at the hearing, there are no exceptional circumstances in this case that would justify the Tribunal not making a costs order in favour of the Applicant. 4. With respect to the Respondent's submission concerning the delay in the prosecution of the proceedings, the Applicant's submission stated that disciplinary investigations do experience delays and such delays do not disentitle the Council to its costs: Council of the Law Society of New South Wales v Fisher (No 2) [2021] NSWCATOD to 135 at [44]. 5. The fact that some grounds in the original application were not pressed by the Applicant does not take the matter "out of the ordinary". Nor does the reduction in the grounds constitute conduct disentitling the Applicant to an order for costs. 6. The Respondent did not provide evidence that it had incurred specific costs in relation to the grounds not pressed. The Respondent at the hearing referred to the decision in Council of Law Society of NSW v Batalha [2020] NSWCATOD 158 where the Tribunal held that exceptional circumstances existed including because the Council determined not to press certain grounds of its application after the Tribunal had reserved its decision. In these proceedings the Applicant determined not to press certain grounds prior to the final hearing of the proceedings. 7. The Applicant's submissions drew to our attention that the parties had agreed that should the Tribunal find the Respondent guilty of professional misconduct or unsatisfactory professional conduct then they propose that an order requiring the Respondent to pay the Applicant's costs, fixed in the sum of $10,000, should be made (noting that the Tribunal is not bound by such agreement). The Applicant stated that the amount of $10,000 represents a portion of the Council's actual costs and disbursements in these proceedings. We find that there are no exceptional circumstances in this case warranting any order that would depart from the requirements of cl 23 and s 303. We agree that the order proposed by the parties fixing costs at $10,000 is not inappropriate.
Accordingly, we make the following order (order 5) as follows: (5) The Respondent is to pay the Applicant's costs fixed in the amount of $10,000 within 2 months or such longer time agreed by the Applicant.

Council of the Law Society of New South Wales v Lee

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)