On 17 June 2014, the Council of the Law Society (hereafter 'the Law Society') filed an Application naming Jayram Narayanasamy (hereafter 'the Solicitor') as Respondent, claiming that he had engaged in professional misconduct and seeking orders against him as follows: (a) that his name be removed from the Roll of legal practitioners; (b) that he pay the Law Society's costs; and (c) any further or other order as the Tribunal deems appropriate.
The Respondent did not file a Reply, but instead wrote to the Tribunal and the Law Society on 17 November 2014, in which he made Submissions and on 11 March 2015, he filed a document described as "Amended Submission". We will address these documents later in this decision.
The first hearing of this matter took place before us on 7 April 2015. Mr Pierotti appeared for the Law Society and the Solicitor appeared in person.
[2]
THE GROUNDS AND PARTICULARS RELIED UPON
The grounds of the current Application arose from previous proceedings before this Tribunal (reported as Council of the Law Society of NSW v Narayanasamy [2014] NSWCATOD 18 (decision dated 16 March 2014)), and are as follows:
1. The legal practitioner attempted to mislead the Administrative Decisions Tribunal.
2. The legal practitioner attempted to mislead the Law Society of New South Wales.
3. The Solicitor swore two affidavits [one sworn 2 September 2013 and one affirmed 20 July 2010] knowing the contents of those Affidavits to be false.
The Law Society sought the following orders:
1. The name of the Respondent be removed from the Local Roll.
2. The Respondent pay the Applicant's costs.
3. Such other order as the Tribunal deems appropriate.
The particulars set out in the Application were as follows:
Particulars
In these Particulars:
"the Solicitor" means Jayram Narayanasamy.
"the Society" means the Law Society of New South Wales.
"IPR" means Independent Property Reports (Aust) Pty Ltd.
1. On 15 August 2012 the Society filed a Disciplinary Application with the then Administrative Decisions Tribunal. The Solicitor was named as the Respondent [the Tribunal proceedings].
2. The Tribunal proceedings related to a complaint of the Solicitor's non-payment of indebtedness to IPR arising from various services carried out by IPR at the request of the Solicitor's then practice [the debt].
3. On 16 June 2010 IPR had commenced proceedings in the Local Court at Kogarah [Local Court Proceedings] and in which proceedings the Solicitor filed a Defence dated 20 July 2010 [the Local Court Defence]. One of the tax invoices relied upon by IPR in the Local Court proceedings was numbered S-64185 in the sum of $250 which related to a Strata Report for a property at 19/45 Edward Bennett Drive, Cherrybrook.
4. The Local Court Defence provided, relevantly:
2. The Defendant seeks to set aside the Statement of Claim on the grounds that he was either the agent of the Plaintiff or in the alternative the Defendant was the agent of the Client for which the plaintiff had a contractual agreement to provide a building and pest inspection report.
3. As no consideration was paid by the plaintiff to the defendant for the services rendered for the inspection report of the property, the defendant denies liabilities for the outstanding debts of Plaintiff in view of the fact that the contract was facilitated by the defendant for the plaintiff and the clients concerned enter into a contract for the services all clients with the exception of invoice No. S-64018 and S-64185 were never invoiced for as (sic) disbursement costs of (sic) the defendant Tax Invoice.
4. Defendant says that the reason for not invoicing the clients on the fees payable to the plaintiff was that, the defendant (sic) normal practice is to advice (sic) clients to pay the plaintiff costs directly to them.
5. The Local Court Defence was verified by Affidavit affirmed by the Solicitor on 20 July 2010 [the first Affidavit]. The first Affidavit provided, relevantly:
I believe that the allegations of fact contained in the defence are true to the best of my knowledge based on tax invoice documents in the possession of the Defendant.
6. In a Statutory Declaration dated 23 November 2011 [the Statutory Declaration] the Solicitor, in response to various questions from the Society, declared to the effect that he had not been paid by his former clients for the fees due to IPR [the subject of the Local Court proceedings] and that the clients were responsible for paying IPR directly.
7. By Affidavit affirmed on 14 January 2013 [the second Affidavit] served on the Society during the course of the Tribunal proceedings, the Solicitor affirmed that his employed Solicitor did not charge various clients for fees incurred with IPR. The Solicitor did not include a copy of his tax invoice to Kapil Rama and Hemeni, dated 17 December 2009 in respect of a purchase of 19/45 Edward Bennett Drive, Cherrybrook [the Rama invoice].
8. By Affidavit sworn 26 August 2013 [the Third Affidavit] served on the Society during the course of the Tribunal Proceedings, the Solicitor swore that,
Annexed herein and marked with the letter "B" are the relevant Tax Invoices prepared by my employed solicitor who did not charge the clients concerned as a disbursement in the tax invoices issued to them for these costs.
Annexure "B" comprised tax invoices, including the Rama invoice. The Rama invoice included an amount of $250 described as "Strata Report" and at the foot of the invoice was stamped the word "PAID".
9. In the third Affidavit the Solicitor swore:
6) When I took over the carriage of these matters… I mistakenly believed that because the clients concerned were not charged for the strata inspection reports in the Tax Invoices that was (sic) charged to them and prepared by [my former] employed solicitor that my instructions to him [that the clients would pay the strata inspection fees directly to the strata inspection provider] were being carried out.
7) When I was issued with a Statement of claim by IPR for the outstanding debts owed to them and in view of this mistaken believe (sic), I defended the claim in the Local Court claiming that the clients concerned were to pay the strata inspection fees directly to IPR and accordingly had wrote to them seeking payments from them for the strata inspection reports stating that no disbursements for the …strata inspection fees were added in their Tax Invoices and that they should now make a cheque in favour of IPR for their fee. Annexed herein and marked with the letter "D" are the letters I wrote to the clients concerned seeking payments from them to IPR.
10. By letter dated 1 July 2010 to Kapil Rama & Hemani, the Solicitor wrote, relevantly:
We refer to your instruction in purchasing the above property and we enclose here with a copy of our tax invoice dated 17th December 2009 and note that $250 had not been added to the tax invoice which is payable to Independent Property Reports (ipr) for the strata report that they have done on your behalf.
Please note that this amount is still outstanding. Kindly request that you make cheque payment in favour of Independent Property Report (ipr).
Please note that we were only acting as unpaid agent for ipr and unless payment is made in due course to ipr, they may seek to take legal action against you directly… as the contract was between you and ipr. …
However, please note that we gave now received a Statement of Claim from the Solicitors acting for… (ipr). This means that unless your payment of $250 is received and made payable to… (ipr) within one week from the date hereof. We shall be forced to include you as a co-defendant in the action being now taken… which will make you liable for any additional cost including the $250 still being owed.
We trust this will not be necessary and expect you to honour your commitment because our tax invoice attached herewith clearly shows the Strata Report fees have not been paid [the Rama letter].
11. On 5 September 2013, in the Tribunal proceedings, the Solicitor filed an Affidavit sworn 2 September 2013 [the fourth Affidavit].
12. In the fourth Affidavit the Solicitor swore [paragraph 4], relevantly:
Annexed herein and marked with the letter "B" are the relevant Tax Invoices prepared by my employed solicitor who did not charge the clients concerned as a disbursement in the tax invoices issued to them for these cost.
The Solicitor also swore [at paragraph 7]:
When I was issued with a Statement of Claim by IPR for the outstanding debts owed to them and in view of this mistaken believe, I defended the claim in the local Court claiming that the clients concerned were to pay the strata inspection fees directly to IPR and accordingly had wrote to them seeking payments from them for the strata inspection reports stating that no disbursements for the (sic) strata inspection fees were added in the Tax Invoices and that they should now make a cheque in favour of IPR for their fee…
13. The Solicitor, as Annexure "B" to the fourth Affidavit", included copies of various Tax Invoices "prepared by my employed solicitor who did not charge the clients concerned as a disbursement in the tax invoices issued to them for these cost" however, the Solicitor did not include a copy of the Rama invoice.
14. The Solicitor, as Annexure "D" to the fourth Affidavit included copies of letters he had written to various clients seeking payment from them of monies due to IPR however, the Solicitor did not include a copy of the Rama letter.
15. By e-mail dated 23 September 2013 the Solicitor advised the Society that since his last attendance in hospital, undergoing surgery, all document produced by him had been computer generated copies.
That surgery, as referred to in the Solicitor's e-mail of 23 September 2013, had taken some time between 30 July 2012 and 19 October 2012.
16. At the Tribunal proceedings on 15 October 2013 the Solicitor read his Affidavit of 2 September 2013 but he did not read his Affidavit of 26 August 2013 or his earlier Affidavit of 14 January 2013.
17. By failing to refer to or annexe to the fourth Affidavit the Rama invoice and/or the Rama letter and which documents he had annexed to the third Affidavit, the Solicitor attempted to mislead the Tribunal and the Law Society.
18. By asserting in paragraph 4 of the fourth Affidavit to the effect that he had not charged his clients for the reports prepared by IPR when in the Rama invoice he had claimed $250 for a strata report and in paragraph 3 of his Defence to the Local Court proceedings he had effectively asserted (by reference to IPR's Invoice No. S-64185) that the clients Rama and Hemani had been invoiced for the IPR report, the Solicitor attempted to mislead the Tribunal and the Law Society.
19. By asserting in paragraph 7 of the fourth Affidavit to the effect that the Solicitor's clients had failed to pay him when the Rama invoice acknowledged payment, the Solicitor attempted to mislead the Tribunal and the Law Society.
20. By asserting in paragraph 7 of the Statutory Declaration to the effect that the Solicitor had not received payment from his clients for strata reports prepared by IPR, when he had received payment of the amount set out in the Rama invoice, the Solicitor attempted to mislead the Law Society.
21. By asserting, in his e-mail dated 23 September 2013 to the effect that the documents produced to the Law Society [in his Affidavits] after his "last surgery" were computer generated, the Solicitor attempted to mislead the Law Society because the last time the Solicitor had been hospitalised for surgery was between 39 July 2012 and 19 October 2012 and the documents which were produced as part of the Solicitor's Affidavits were, on their face, not computer generated.
22. The fourth Affidavit was false in that:
(a) The Solicitor deliberately omitted to annex to that Affidavit the Rama invoice and the Rama letter which had been annexed to the third Affidavit;
(b) The Solicitor asserted, in paragraph 4, to the effect, that he had not charged his clients for the reports from IP when he had charged his clients Rama and Hemani; and
(c) The Solicitor falsely asserted in paragraph 7, to the effect, that he had not received payment from his clients for the IPR reports when he had received payment from his clients Rama and Hemani.
23. The Solicitor affirmed the first Affidavit knowing that the claims in his Defence that he was either an agent of the Plaintiff (IPR) or, in the alternative, an agent of the clients were false as there was no basis to these claims.
[3]
The Law Society's Evidence
On 17 June 2014, the Law Society filed an Affidavit sworn on 13 June 2014 by its solicitor, Ms Anne-Marie Foord. This Affidavit comprised the Law Society's evidence, but the Society also handed up a copy of the Tribunal's decision dated 26 March 2014 in relation to a previous Disciplinary Application against the Solicitor, which was reported as Council of the Law Society of NSW v Narayanasamy [2014] NSWCATOD 18.
[4]
The Solicitor's Evidence
The Solicitor did not file a Reply or any Affidavit evidence in these proceedings. However, he wrote a letter to the Tribunal and the Law Society on 17 November 2014, in which he stated:
RE: NCAT PROCEEDINGS NO 1420228
I refer to the above proceedings and regret to advise that due to my medical condition, I am unable to appear on the 3rd of December 2014 and seek a speedy conclusion on this matter.
I have suffered enough for my mistaken believes (sic) and have settled my debts with the complainant.
However, the enclosed medical reports together with the letter from Mr TA Williams are sufficient i hope to explain my state of mind then and now.
I had never intended to mislead anybody and as pointed out in Mr Williams' letter enclosed herein, there was no intention on my part of misleading the law society nor the tribunal. It was all due to my wrong assumption that because the majority of my clients were not invoiced for their strata inspection reports by my employed solicitor and who had since left my firm, I had mistakenly believed, after I took over the matters, that what was true for the majority of the invoices was true for all.
I sincerely apologise to all concerned and attributed to all to the pain and depression suffered after some multiple operations I underwent as evidence from my medical reports furnished by my psychiatrist Dr Singer and my pain specialist Dr Holford.
If these medical conditions and the history are not acceptable in mitigation, I consent to the orders sought by the legal service commission to remove me from the roll of solicitors in new south wales with a request not to order costs against me as I am a 67 years old receiving about $400 a fortnight from centre link (sic).
The Solicitor annexed the following documents to his letter:
1. Medical report from Dr Lewis Holford, Pain Medicine Specialist, dated 12 February 2013;
2. Medical reports from Dr Andrew Singer, Consultant Psychiatrist & Pain Medicine Specialist, dated 26 February 2013 and 10 September 2013; and
3. Letter from TA Williams, Solicitor & Barrister, to the Law Society dated 19 November 2013.
The Tribunal notes that Mr Williams made submissions to the Professional Standards Department on behalf of the Solicitor and that these were based upon the medical reports of Dr Holford and Dr Singer. We also note that Mr Williams correctly conceded that these reports were relevant to the previous Tribunal proceedings against the solicitor and he submitted, relevantly:
…It is clear that Mr Narayanasamy has significant health problems, including depression associated with his pain levels, and a susceptibility to stress related conditions.
I suggested to Mr Narayanasamy that he should seek further medical assessment from a psychiatrist, or other specialist in a position to assess any cognitive impairment.
He informs me that he is not financially in a position to fund a Medico/Legal assessment.
I have also been provided with what appears to be a complete set of documents relevant to the present complaints.
Some of those documents were, of course, relevant to the earlier proceedings.
The material provided to me in relation to those proceedings is incomplete.
It does however suggest that the manner in which Mr Narayanasamy sought to present his case, and to represent himself in those proceedings, also bespeaks some impairment of understanding…
However, the Tribunal notes that Dr Singer and Dr Holford did not formally diagnose the Solicitor as suffering from any cognitive impairment.
The Solicitor also lodged an "Amended Submission - NCAT Proceeding No: 1420228" dated 3 March 2015, which was received by the Tribunal on 11 March 2015, in which he submitted, relevantly:
I refer to the above matter scheduled for a hearing on 7th April 2015 and advise that due to my medical condition, I do not intent (sic) to appear and wish to seek a speedy conclusion on this matter.
I have suffered enough for my mistaken belief and have duly settled my debt with the complainant. However the enclosed medical reports duly signed by treating doctors addressed to my son DR. Dev Jayram together with the submissions made by Solicitor Mr TA Williams are sufficient I hope to explain my state of mind then and now.
In addition to this I have also been scheduled for another operation on 4 March 2015 (see attachment).
I wish to state that I never intended to mislead anybody and as pointed out by my Solicitor, Mr Williams in his letter enclosed herein, there was no intention on my part of misleading the law Society nor the Tribunal. It was all due to my wrong assumption that because the majority of my clients were not invoiced for their strata inspection reports by my then employed solicitor and who had since left my firm, I had mistaken (sic) believed, after I took over the matters, that what was true for the majority of my clients was true for all.
I sincerely apologise to all concerned and attribute all this to the depression and I suffered after some multiple operations I underwent as evidenced from my medical history furnished by my psychiatrist Dr Singer and my pain specialist Dr Holford.
If these are still not acceptable in mitigation, I consent to the orders sought by the Legal Service Commission of the Law Society to remove me from the Roll of Solicitors with a request not to order costs against me as I am not able to work and am now a pensioner receiving about $400 a fortnight from Centre Link.
In support of the Amended Submission, the Solicitor lodged additional medical reports from Dr Singer dated 12 March 2013, 14 May 2013, 22 July 2013, 10 September 2013, 28 March 2014 and 12 September 2014, respectively. The Tribunal notes that these reports were addressed to his son, Dr Dev Jayram, and contain the following relevant evidence:
1. On 28 March 2014, Dr Singer stated that he was aware that the Solicitor was now facing a second charge of intentionally misleading the Tribunal and that he had been shown a copy of Mr Williams' letter to the Law Society dated 19 November 2013. He stated, relevantly:
…Although distressed by the current proceedings, he is not depressed.
I performed a Mini Mental State Examination; he scored 29 out of 30 which is a good result…
1. On 10 September 2013, Dr Singer issued a report "To Whom it May Concern" in which he stated, relevantly:
…I understand that he is involved in a dispute with the Law Society which is causing him significant distress.
I am writing to apply for consideration of his medical condition. On medical grounds he should not be exposed to stressful situations; the ongoing stress has the potential to worsen his pain condition and cause his mood to further deteriorate…
1. On 12 September 2014, Dr Singer wrote to Mr Williams, relevantly:
…I understand that he has been found guilty of professional misconduct with relation to charges concerning errors in billing and errors of judgement in handling professional issues and is now facing a charge of intentionally misleading the Law Society and the Tribunal in previous proceedings.
From history obtained from Mr Narayanasamy, his wife and son, I have formed the impression that there is a long-term past history of poor judgment in decision making suggestive of a personality trait of impulsivity.
In addition, he has used alcohol and smoked cannabis in the past.
In summary, it seems likely that there is a cognitive impairment based on multiple aetiological factors including: chronic pain, medications, depression, a history of smoking, arterial disease and cumulative exposure to alcohol and cannabis, in the context of advancing age.
However assessment of cognitive impairment has not been the focus of his assessments and treatment at our clinic.
This could be specifically assessed by obtaining an MRI scan of the brain and referral for formal neuropsychological testing…
However, there is no medical evidence that the Solicitor has undergone an MRI brain scan and/or formal neuropsychological testing and/or evidence that he was suffering from an organic brain syndrome or a cognitive impairment when the relevant conduct occurred.
[5]
The Law Society's Submissions
Mr Pierotti submitted that the evidence in the matter was simple and was to the effect that when the Solicitor was sued in the Local Court of New South Wales by IPR, a company that undertook various searches, and claimed that the Solicitor owed them monies, the Solicitor filed a Defence in those proceedings, in which he asserted that he did not owe any monies to IPR. He verified the Defence by way of an Affidavit.
In 2014, the Law Society commenced previous disciplinary proceedings against the Solicitor because he failed to pay the Judgment debt to IPR and during the course of those proceedings, he filed and served evidence and Affidavits that were misleading. For example, the Solicitor's tax invoice to Kapil Rama & Hemani dated 17 December 2009, expressly included a fee of $250 for a "strata report" and this was stamped as "Paid". It was produced by the Solicitor and was marked as annexure "B" to his Affidavit sworn on 26 August 2013. However, in that Affidavit he asserted that none of his clients had paid him any fees for searches that were conducted by IPR.
However, on 2 September 2013, the Solicitor swore a fourth Affidavit, which was filed in relation to the previous disciplinary proceedings against him and read in those proceedings. The Tribunal notes that this document is bears the title "Amended Affidavit" and that in paragraph 9 of this document the Solicitor deposed as follows:
9. Since then I have accepted the verdict of the Local Court and was prepared to pay my debt and according had paid IPR their solicitor's fee and was preparing to pay the debt of $2300 to IPR but before I could do that they made a complaint to the Legal Service Commission who have brought this matter to this Tribunal to reprimand me for alleged professional misconduct…
Mr Pierotti submitted that during the previous disciplinary proceedings, the Solicitor was challenged in relation to the evidence contained in his Amended Affidavit sworn on 2 September 2013 and a further document that he lodged called "Amended Submission 2". He referred us to paragraph 29 of the Judgment of the previous Tribunal, which indicated:
29. The Law Society commenced its cross examination on the Defence which the solicitor had filed in the Local Court proceedings by which he denied liability for the debt on the basis that he was either the agent of the Plaintiff or in the alternative he was the agent of the client for which the Plaintiff had a contractual relationship to provide a building and pest inspection report. At the time of the first question the Solicitor was asked whether he wished to object to answering the question or sought the issue of a certificate under s.128(3) of the Evidence Act. At his request the solicitor was given and read a printout of s.128 of the Evidence Act and was given a 'layman's' explanation of the effect of that section. The solicitor declined to answer the first question (in relation to his Defence) and indicated that he did not wish to answer any further questions and was excused…
Mr Pierotti also referred the Tribunal to the Solicitor's email to the Law Society dated 23 September 2013, in which he responded to a request for production of documents from the Law Society as follows:
Dear Mr Pierotti
I refer to your email and regret to advise that my wife in a fit of anger and frustration realising that I am medically unfit to practice has destroyed all my files when I was in the hospital undergoing my last surgery, In view of this I am unable to producer (sic) the documents you requested. In any case I will be producing documents wherein an investigation was done on 5 March 2010 by Mr Gary Napper who examined under Schedule One the following:…
Since then all documents I have forwarded to you was sourced from my computer…
However, Mr Pierotti submitted there is no medical evidence that indicates that the Solicitor was medically incapacitated to practice law when the tax invoice issued to Kapil Rama & Hemani dated 17 December 2009 was paid to the Solicitor. In addition, the copy of the tax invoice that was annexed to an Affidavit in the proceedings displayed a "PAID" stamp upon its face and it was clearly not a computer-generated document. This is evidence of the Solicitor's attempt to mislead the Tribunal.
Further, while the Solicitor repeatedly refers to a "mistaken belief" regarding the actual facts in the matter, the Law Society says that the Solicitor's conduct is not the result of a mistake and there is no medical evidence that supports the finding that he was suffering from any debilitating medical condition that would permit him to escape a finding that his conduct was misleading and/or that he intended to mislead the Tribunal and the Law Society.
[6]
The Solicitor's Submissions
The Solicitor submitted that he did not intend to mislead the Tribunal and the Law Society and said that he had left the administration of his Firm to his employed Solicitor and that he had some difficulty with his health.
Mr Pierotti objected to the Solicitor giving evidence from the Bar Table. However, the Tribunal decided that it was appropriate to allow him to make submissions and that his comments would be treated as submissions and not as evidence in the matter.
The Solicitor submitted that he had given instructions to his employed solicitor that clients were to pay IPR directly and said that he "…forgot about all this" when he filed the Defence in the Local Court.
The Tribunal asked the Solicitor whether the Amended Submission that he lodged on 11 March 2015 accurately reflected his current views in relation to his conduct, noting that he stated, inter alia:
…I have suffered enough for my mistaken belief and have duly settled my debt with the complainant. However the enclosed medical reports duly signed by treating doctors addressed to my son DR. Dev Jayram together with the submissions made by my solicitor Mr TA Williams are sufficient I hope to explain my state of mind then and now…
The Solicitor responded:
…I don't want to prolong this any more than is necessary.
However, the solicitor then stated:
I query whether or not you have jurisdiction because I am not a member of the Law Society.
In response, the Tribunal notes that the jurisdiction conferred upon it under the Legal Profession Act 2004 does not depend upon the Solicitor being a member of the Law Society of New South Wales.
[7]
The Law Society's Submissions in Reply
Mr Pierotti submitted that the Tribunal must find the facts and then be satisfied that the orders that are sought are appropriate. He submitted that while the Solicitor says that he was 'confused', the Tribunal would not be satisfied with that explanation because of the proximity of his two (2) Affidavits, in August 2013 and September 2013, respectively, and his conscious decision to rely upon only the latter Affidavit. Further, when he was challenged to produce documents that supported his evidence in that Affidavit, he stated that he could not do so because his wife had destroyed all of the files and that all of the documents that he had produced from 2010 to date were computer-generated. However, those documents are clearly not computer-generated. The Solicitor has not provided any evidence at all to explain his conduct.
Mr Pierotti also cited the following well-established principles relating to orders made by way of penalty against legal practitioners who have engaged in professional misconduct, namely: (a) the function of such orders is protective and educative, not punitive; (b) their aims include protecting the public against future misconduct by both the respondent and other legal practitioners; and (c) it is important therefore to take account of the effect of such orders on the understanding within both the legal profession and the general community of the behaviour expected of practitioners. He submitted that in addition to an order that the Solicitor be struck off the Roll, he should be ordered to pay the Society's costs and that a costs order should be made unless the Tribunal is satisfied that exceptional circumstances exist.
[8]
Discussion and Findings
Based on a consideration of all of the available evidence and submissions, the Tribunal finds that the conduct complained of has been established to the requisite standard see Briginshaw v Briginshaw (1938) 60 CLR 336.
[9]
Grounds 1 and 2
In relation to Grounds 1 of the Application, we are satisfied that the solicitor attempted to mislead the Administrative Decisions Tribunal during the previous disciplinary proceedings on 15 October 2013, by reading his Affidavit of 2 September 2013, not his Affidavits of 14 January 2013 or 26 August 2013. We are also satisfied that the Solicitor attempted to mislead both the Tribunal and the Law Society by:
1. Failing to refer to or annexe to the fourth Affidavit the Rama invoice and/or the Rama letter (being documents that he annexed to his third Affidavit); and
2. By asserting in paragraph 4 of his fourth Affidavit to the effect that he had not charged his clients for the reports prepared by IPR, when he had claimed $250 for a strata report in the Rama invoice and in paragraph 3 of his Local Court Defence he effectively asserted (by reference to IPR's Invoice No. S-64185) that his clients Rama and Hemani had been invoiced for the IPR report; and
3. By asserting in paragraph 7 of his fourth Affidavit to the effect that his clients had failed to pay him, when the Rama invoice acknowledged payment.
We are also satisfied that the Solicitor attempted to mislead the Law Society by asserting in paragraph 7 of the Statutory Declaration to the effect that he had not received payment from his clients for strata reports prepared by IPR, when he had received payment of the amount set out in the Rama invoice; and
By asserting, in his e-mail dated 23 September 2013 to the effect that the documents produced to the Law Society [in his Affidavits] after his "last surgery" were computer generated, as the last time the Solicitor had been hospitalised for surgery was between 29 July 2012 and 19 October 2012 and the documents that were produced as part of the Solicitor's Affidavits were, on their face, not computer generated.
[10]
Ground 3
We are satisfied that the Solicitor swore an Affidavit on 2 September 2013 and Affirmed an Affidavit on 20 July 2010, knowing the contents of those Affidavits to be false. We find that the Affidavit sworn on 2 September 2013 was false in that:
1. The Solicitor deliberately omitted to annex to that Affidavit the Rama invoice and the Rama letter which had been annexed to the third Affidavit;
2. The Solicitor asserted, in paragraph 4, to the effect, that he had not charged his clients for the reports from IP when he had charged his clients Rama and Hemani; and
3. The Solicitor falsely asserted in paragraph 7, to the effect, that he had not received payment from his clients for the IPR reports when he had received payment from his clients Rama and Hemani.
We also find that the Solicitor Affirmed the Affidavit on 20 July 2010 knowing that the claims in his Defence that he was either an agent of the Plaintiff (IPR) or, in the alternative an agent of the clients, were false as there was no basis to these claims.
We must take account of sections 496 and 497(1)(a) of the Act, which provide:
496 Unsatisfactory Professional Conduct
For the purposes of this Act:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
497 Professional Misconduct
(1) For the purposes of this Act:
professional misconduct includes:
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence...
In our view, the Solicitor's conduct clearly did not meet "the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner". It is therefore necessary to determine whether the conduct amounted to unsatisfactory professional conduct or professional misconduct.
In our view, the Solicitor's conduct would be 'reasonably regarded as disgraceful or dishonourable' by the lawyer's 'professional brethren of good repute and competency', to quote from the well-known definition of common law misconduct in Allinson v General Council of Medical Education and Registration [1894] 1 KB 750 at 763. Also, to adopt the comments of Rich J in the High Court in Kennedy v Council of the Incorporated Law Institute of New South Wales, (Unreported; noted in (1939) 13 ALJ 563), it 'amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty in relating to the courts, his client or the public'.
In addition, we are satisfied that the Solicitor's conduct falls within the statutory definition of professional misconduct in section 497(1)(b) of the Act, which includes 'conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice'.
In making this finding, we note that in the previous disciplinary proceedings, the Solicitor submitted, inter alia, that he had consistently held an honest but mistaken belief that his clients were to pay ISP directly for the reports and that he was the victim of a begrudged employee. However. he requested and was issued with a Certificate under s 128 of the Evidence Act and declined to answer any questions from the Law Society in relation to the Defence that he filed in the Local Court proceedings. As a result, the Solicitor's evidence could not be tested under cross-examination. His oral submissions were to the same effect. The Tribunal made the following findings, relevantly:
33. The Tribunal finds that the conduct complained of has been established to the requisite standard of proof see Briginshaw v Briginshaw (1938) 60 CLR 336. The Solicitor failed to pay his practice debts as and when they arose to IPR, and he again failed to pay those debts to the debt recovery agent engaged by IPR in March, 2010. The Defence which he filed in the Local Court proceedings in response to the Statement of Claim "defies logic" to adopt the language of Law Society. In the Tribunal's view the bona fides of that Defence is questionable. The Solicitor declined to answer questions put to him by the Law Society in relation to the Defence…
36. The Solicitor's evidence both written and oral gave no comfort to this Tribunal that he appreciated the gravity of his conduct and the fact that the debt remains outstanding is reflective of this fact.
37. The day to day conduct of legal practice requires legal practitioners to honour their practice debts to third parties. This is a well-established principle with which the Solicitor ought to have been familiar having been in practice since 1994. By letter dated 22 February, 2012 from the Law Society to the Solicitor, he was on notice that his professional body considered that he had engaged in conduct which could be found to constitute professional misconduct by this Tribunal. However, he continued to treat his responsibility to IPR as though it did not exist.
38. In the view of the Tribunal, the conduct complained of falls squarely within the parameters of Allinson's case, namely conduct which "would be reasonably regarded as disgraceful and dishonourable" by "professional brethren of good repute and competency". The law practice of which he as the principal having retained IPR to provide services, he having been the subject of a judgment for debt and having admitted the debt, the solicitor has failed without reason or excuse failed or neglected to satisfy the debt.
39. The failure by a practitioner to pay third party debts other than those for which moneys were held in trust was considered by the Administrative Decisions Tribunal in Council of the Law Society v Xenos [2002] NSWADT at [283]. Although ultimately concluding, upon the basis of the contention of the Law Society which the Solicitor did not oppose, that failure to pay a third party amounted to unsatisfactory professional conduct in the circumstances of the matter, the Tribunal noted:
"[w]e should add that we were concerned that in view of the obdurate way in which he refused to discharge his obligation, both statutory (under section 279) and contractual, to pay the fees due to D A Strati this conduct on his part might have been more appropriately characterised as professional misconduct."
40. The conduct was ultimately characterised as unsatisfactory professional misconduct in light of the absence of any evidence as to the reasonableness of the fees being charged and taking into account some evidence as to the Solicitor's health and financial situation during the relevant period. There are no such factors in the circumstances of this case.
41. The Tribunal finds that the facts establish a clear case of professional misconduct although at the lower end of the scale. The Law Society seeks an order that the Solicitor be publicly reprimanded and the Tribunal is of the view that this is an appropriate penalty.
The Tribunal also ordered the Solicitor to pay the Law Society's costs of and incidental to those proceedings within a period of three (3) months, as agreed or assessed.
In the current proceedings, the Solicitor's written and oral Submissions do not provide this Tribunal with any comfort that he now appreciates the gravity of his conduct, although he has satisfied the judgment debt to IPR including interest and costs. He expressed the opinion that, "I have suffered enough for my mistaken believes (sic) and have settled my debts with the complainant" and asserted that he did not intend to mislead anybody and stated, "It was all due to my wrong assumption that because the majority of my clients were not invoiced for their strata inspection reports by my employed solicitor and who had since left my firm, I had mistakenly believed, after I took over the matters, that what was true for the majority of the invoices was true for all."
In addition, in 2013, prior to the determination of the previous disciplinary proceedings, sought to excuse the discrepancy in annexures to his Affidavits by stating that his wife had destroyed all of his files and records and that all of the documents that he produced to the Law Society in relation to this matter were computer-generated. However, this was clearly not the case. He also sought to attribute his conduct to an unspecified incapacity allegedly arising from either depression and/or chronic pain as a result of physical injuries and/or cognitive impairment. However, there is no medical evidence that establishes the existence of any medical condition that establishes that the Solicitor was suffering from any medical incapacity (of a type that could explain his conduct) at the time that the conduct occurred.
[11]
Consequential Orders
The Law Society has sought an order under section 562(2)(a) of the Act removing the Solicitor's name from the Roll.
In our view, the Solicitor's conduct, which we have held to be professional misconduct, was misleading and precludes any finding that he was, at the time of the conduct, a fit and proper person to remain on the roll. He tendered no evidence and made no submission tending to misplace the presumption of probable permanent unfitness to practice as a legal practitioner.
In our view, the important considerations that underlie disciplinary proceedings such as these, namely the protection of the public; the protection of the reputation of the legal profession; and the objective of general deterrence, leads to the conclusion that we should order that the name of the lawyer be removed from the local roll, under section 562(2)(a) of the Act. We make that order.
In relation to the issue of costs, the Law Society has applied for an order for costs against the Solicitor, based upon to cl 23(1), (6) and (7) of Sch 5 of the Civil and Administrative Tribunal Act 2013 ('the CAT Act'). These provisions state:
(1) Despite section 60 of this Act, the Tribunal must make orders requiring an Australian Legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
(6) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under Part 3.2 of the Legal Profession Act 2004.
(7) An order for costs may specify the terms on which costs are to be paid.
Section 60 of the CAT Act is a general provision empowering the Tribunal to award costs 'only if it is satisfied that there are special circumstances warranting an award of costs'. Under subs (4)(a), the Tribunal may determine 'by whom and to what extent costs are to be paid'. Where no such 'special circumstances' exist, subs (1) provides that each party to Tribunal proceedings must pay the party's own costs.
On behalf of the Law Society, Mr Pierotti that in the present proceedings there was no evidence of 'exceptional circumstances' justifying departure from the mandatory rule stated in cl 23(1) of Sch 5 of the CAT Act, and that we should therefore order the Solicitor to pay the Law Society's costs of these proceedings.
We note that in his written Submission and Amended Submission, the Solicitor 'requested" the Tribunal not to make a costs order against him on the basis of his age and an assertion that he was 'receiving about $400 a fortnight from centre link (sic)'. However, he did not file any evidence in relation to his financial circumstances.
In our opinion, the Solicitor should pay the Law Society's costs of these proceedings, broadly for the reason that we have upheld the grounds of the Application. We order accordingly.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 17 August 2015