Council of the Law Society of New South Wales v Rogers

NCAT Occupational|2021-07-21

Law Society of New South Wales v Delpopolo [2014] NSWCATOD 55 Law Society of New South Wales v Gillroy [2010] NSWADT 232 Law Society of New South Wales v Koffel [2010] NSWADT 149 Law Society of New South Wales v Somerfield [2008] NSWADT 235 Law Society of New South Wales v Vosnakis [2007] NSWADT 42 Prothonotary of the Supreme Court of New South Wales v McCaffrey [2004] NSWCA 470 The Council of the Law Society of New South Wales v McHugh [2014] NSWCATOD 37 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Michael Edward Rogers (Respondent) Representation: Counsel: P Maddigan (Applicant)

Solicitors: Vector Legal (Respondent) File Number(s): 2020/00262429 Publication restriction: None

Jurisdiction

The Law was incorporated into the law of New South Wales by section 4 of the Legal Profession Uniform Law Application Act 2014. Clause 26 of Schedule 5 of the Law, which commenced on 1 July 2015 (the Commencement Day), provides in summary that where: 1. a complaint against a legal practitioner was made under the Act, but 2. was not disposed of before the Commencement Day, the complaint is, in the absence of legislative provision to the contrary, to continue to be dealt with in accordance with the provisions of the Act. There is no such contrary legislation.
Since in the present case the relevant complaint, of which details are set out in [12] below, was made on 24 November 2014 it follows that in accordance with that clause the present application is to be determined under the Act rather than the Law, even though it is now over 7 years since the Law commenced.
The Applicant's resolution of 19 March 2020, that these proceedings be instituted before the Tribunal, was made under the Act. Section 551 of the Act authorises the Applicant to commence proceedings before the Tribunal with respect to complaints against Australian legal practitioners. The Respondent was at all relevant times and remains an Australian legal practitioner within the meaning of sections 4, 5 and 6 of the Act, as is found in [8] below.
The Tribunal thus has jurisdiction to determine the Application.

Facts and history

The matters set out in paragraphs [7] to [11] below are not in dispute.
The Respondent was admitted as a solicitor on 23 December 1977. Since December 2011 he has been the principal of an incorporated legal practice carried on by MER Legal Pty Ltd under the business name "Lawsource" (the Law Practice) and has held the appropriate practising certificate. He was thus at all relevant times (and remains) an Australian legal practitioner for purposes of the Act.
During the period 15 March 2013 to 28 November 2014 the Law Practice employed the person who made the complaint referred to in [12] below (the Complainant) on a part-time basis as a legal secretary.
The Law Practice: 1. Failed during that period to make payment of the employer superannuation contributions payable in relation to the Complainant; and 2. Failed to issue to the Complainant any Group Certificates or PAYG summaries in respect to her employment.
The delinquencies referred to in [10] above in relation to the Complainant's superannuation entitlements have been remedied. Those concerning the payment of PAYG income tax instalments and the delivery of certificates evidencing payment have not been.
The Complainant on 24 November 2014 made a complaint to the Legal Services Commissioner concerning the Respondent in relation to these delinquencies, which the Commissioner referred to the Applicant for investigation on that same date.
These matters formed the subject of the Applicant's initial application which, as described in [2] above, was dismissed on 5 June 2019. Subsequently, on 8 September 2020, the Applicant made the present Application, in which it alleges that the matters summarised in [10] above constitute professional misconduct by the Respondent and seeks certain orders against the Respondent, being: 1. That the Respondent be reprimanded. 2. That the Respondent pay a fine. 3. That the Respondent pay the Applicant's costs as agreed or assessed. 4. Any further or other order the Tribunal deems fit.
On 2 November 2020, the Respondent filed a reply to the Application, in which: 1. He admitted the matters referred to in [10] above; 2. He admitted that the conduct particularised in the Application amounted to professional misconduct; and 3. He agreed to the orders sought.
At the hearing, the Respondent modified this response in one respect. He disputed neither the matters referred to in [10] above nor his acceptance of the orders sought. Rather, he withdrew the admission that his conduct amounted to professional misconduct and substituted for it one that his conduct constituted unsatisfactory professional conduct.

The Tribunal's tasks

The Tribunal therefore has two tasks: 1. First, to decide whether the delinquencies described in [10] above and admitted by the Respondent are properly characterised as: 1. unsatisfactory professional misconduct, or 2. professional misconduct. 1. Secondly, to decide on the appropriate orders, if any, in relation to the Respondent's conduct.

Statutory background

The Act allowed for legal services to be provided through an incorporated legal practice. However, it provided in section 143 that a legal practitioner who provided legal services on behalf of such an incorporated legal practice was not "... excused from compliance with professional obligations as an Australian legal practitioner..", with the extent and quality of those obligations being determined, in the case of an incorporated legal practice having one director, as if the practice were a sole practitioner. That the Law Practice was conducted by a corporate entity, MER Legal Pty Ltd of which the Respondent was the sole director does not therefore impair or detract from the Respondent's professional duties as a solicitor in connection with the Law Practice.
Section 496 of the Act defines unsatisfactory professional conduct as follows: 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.
Section 497 of the Act relevantly defines professional misconduct as follows:

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; and (b) 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 lawyer is not a fit and proper person to engage in legal practice.

Section 562 of the Act provides relevantly as follows: If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section. It then sets out a non-exclusive list of possible orders.
This Tribunal is one in which, pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 No 2 (the NCAT Act), parties generally bear their own costs. Clause 23(1) of Schedule 5 to the NCAT Act, however, provides as follows: Despite section 60 of this Act, 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 exceptional circumstances exist.

Evidence provided

The Applicant filed the following affidavit evidence: 1. Affidavit of James Anthony Lean, with exhibits, dated 8 September 2020; and 2. Affidavit of the Complainant dated 14 September 2020.
The Respondent gave oral evidence at the hearing, and: 1. Filed an affidavit, with annexures, dated 10 February 2021; and 2. Provided written character references from Dr R Raper AM FRACP, Ms J Young JP, and Mr S Soole, solicitor.

The Applicant's submissions

The Applicant did not dispute the Respondent's admission that the conduct referred to in [10] above amounted to unsatisfactory professional conduct on his part. In doing so, it drew the Tribunal's attention to: 1. Section 496 of the Act, which includes within matters which potentially gives rise to unsatisfactory professional conduct any conduct of a lawyer 'in connection with the practice of law", and urged on the Tribunal the conclusion that the various delinquencies referred to above on the part of the Respondent had the necessary connection with the practice of law to bring them within the scope of unsatisfactory professional conduct; and 2. In support of that proposition directed the Tribunal to its decision in Council of the Law Society of New South Wales v Wehbe [2018] NSWCATOD 14 and the cases referred in it, where at [133] and [134] the Tribunal concluded that it formed part of a legal practitioner's professional obligations to ensure that the taxation obligations relevant to that practitioner's legal practice are met.
However, the Respondent then took matters one step further: 1. It recognised, as the Tribunal's predecessor body observed in Law Society of New South Wales v Koffel [2010] NSWADT 149, at [48], that the mere failure pay superannuation guarantee contributions on time does not necessarily constitute professional misconduct, but may amount to such conduct in appropriate circumstances: "... the mere fact of a failure to pay superannuation guarantee contributions on time does not, on itself, constitute professional misconduct. It is the circumstances surrounding the failure, the consequences of the failure, and the actions subsequently taken by the solicitor, that determine whether the conduct constitutes professional misconduct". 1. However, it said, the circumstances of the Respondent's conduct in allowing these delinquencies to occur was such as to bring that conduct within both: 1. The statutory definition of professional misconduct in section 497 of the Act, set out above, because it was unsatisfactory professional conduct which involved "a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence", thus satisfying the test in section 497(1); and 2. The common law concept of professional misconduct enunciated in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, as being conduct in the pursuit of professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency; this concept has been adopted in relation to New South Wales legal practitioners in Prothonotary of the Supreme Court of New South Wales v McCaffrey [2004] NSWCA 470, Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 and Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407.
In order: 1. To mark the Tribunal's disapproval of the Respondent's conduct; 2. To identify appropriate professional standards, with a view to protecting the public; and 3. To deter future departures from appropriate professional standards, the Applicant urged the Tribunal to make a finding that the Respondent had engaged in professional misconduct, reprimand the Respondent and impose a fine.

Respondent's evidence and submissions

The Respondent said that the delinquencies fell short of constituting professional misconduct.
This was because: 1. They were not the result of malice or any deliberate policy to deprive either the Complainant or the Australian Taxation Office of their respective financial entitlements. 2. Rather, several factors contributed to them. 3. The first was what the Respondent himself recognised as, to quote his affidavit of 10 February 2021, at [21], "... incompetence where there should have been efficiency, and procrastination where there should have been decisive action". 4. The second was financial ineptitude on the Respondent's part, by failing to establish cash reserves as appropriate to meet the superannuation and other payments as and when due. 5. The third, which contributed to the second, was financial stress on the Law Practice. This was explicable in part by difficulty in meeting an obligation to pay deferred purchase price instalments for his purchase of the Law Practice which fell due, caused by: 1. a reduction in work volumes following changes in the referral practices of certain major sources of referral work, and 2. certain unanticipated expenses of the Law Practice. 1. The fourth was his inability to raise a loan to ease immediate cash flow difficulties. 2. The fifth was a conscious decision on his part, to maintain the Complainant's employment even despite the Law Practice's cash flow constraints. His objective in doing so was to support her through a period of personal difficulties in which her continued employment would be of benefit to her, rather than to reduce the Law Practice's costs by retrenching her. 3. The Respondent's ability to respond to these various challenges was impaired by recurrent cardiac problems.
Moreover, the Respondent says: 1. He has restructured the Law Practice so as to reduce overheads. 2. He has himself refrained from taking a salary or superannuation from the Law Practice. 3. Since the complaint was made, there has been no repetition by him of the delinquent conduct. 4. He has resolved with the Australian Taxation Office the superannuation shortfalls and is in discussions with that organisation in relation to the PAYG shortfalls. 5. Apart from the earlier application against him arising out of the same circumstances referred to in [2] above, the Respondent has not been the subject of any adverse disciplinary findings by the Applicant or any of its predecessor regulatory bodies during his 42-year career.

The Tribunal's analysis

Solicitors' failures to comply (or to cause incorporated legal practices for which they have responsibility to comply) with statutory obligations to pay superannuation contributions and PAYG tax have been the subject of disciplinary proceedings on numerous occasions before this Tribunal or its predecessor.
The list of cases is quite long, and includes the following, in chronological order: Law Society of New South Wales v Bouzanis [2006] NSWADT 55, Law Society of New South Wales v Vosnakis [2007] NSWADT 42, Law Society of New South Wales v Somerfield [2008] NSWADT 235, Law Society of New South Wales v Koffel [2010] NSWADT 177, Law Society of New South Wales v Gillroy [2010] NSWADT 232, Council of the Law Society of New South Wales v Dalla [2011] NSWADT 130, Council of the Law Society of New South Wales v Adams [2011] NSWADT 177, The Council of the Law Society of New South Wales v McHugh [2014] NSWCATOD 37, Council of the Law Society of New South Wales v Andreone (No 1) [2014] NSWCATOD 49, Law Society of New South Wales v Delpopolo [2014] NSWCATOD 55 and Council of the Law Society of New South Wales v Wehbe [2018] NSWCATOD 14.
Each of these decisions concerns a solicitor who failed either: 1. to pay, or 2. to ensure that an incorporated legal practice for which he or she had responsibility paid, as required by law superannuation contributions for employees of the legal practice conducted by (or by the relevant corporate entity in the case of an incorporated legal practice) the solicitor.
In all cases the delinquency was explicable, as was the case here, by financial difficulties or cash flow constraints affecting the relevant legal practice. In Council of the Law Society of New South Wales v Adams [2011] NSWADT 177, the Administrative Decisions Tribunal encapsulated the central concern, at [87]: ".... the Respondent's failure to comply with his legal obligation to pay the superannuation contributions was done ... for the purpose of preferring his desire to continue the conduct of his business. He preferred his own financial and other interests over the interest of his employees".
In the present case, the Respondent acknowledges in paragraph 18 of his affidavit of 10 February 2021 that he deferred making superannuation contributions for the Complainant: "2014 and more particularly 2015 were bad years for me. My cash flow problems increased to a point that I was having some difficulties ..... Each year I believed that things would improve and there would be adequate cash flow to meet my obligations to the Complainant and the ATO".
In some of the cases referred to above, such as Council of the Law Society of New South Wales v Wehbe [2018] NSWCATOD 14 the amounts involved were substantial. In some the affected employees were numerous. In others, however, as is the case here, the amounts involved were quite modest and only one or a mere handful of employees were affected.
In some of those cases, failure to pay employee superannuation contributions was accompanied by failure to remit PAYG deductions to the Australian Taxation Office. The evidence indicates that that occurred here. In some of those cases, too, the delinquent solicitor failed to ensure the remission of GST to the Australian Taxation Office. There is no suggestion, however, that the Respondent's omissions extended to GST.
In some of those cases, the solicitor's delinquency in ensuring the satisfaction of relevant superannuation or taxation obligations was accompanied by a breach of other professional obligations. In others, however, it was not. In the present case, there is no suggestion of any failure by the Respondent in any of his other professional obligations.
In some of those cases the delinquency continued for many years. In the present case, although it extended over 3 financial years, in fact the actual period in which the payment failures occurred was in the order of 20 months. This gives it a similar duration to the delinquency considered in Law Society of New South Wales v Delpopolo [2014] NSWCATOD 55.
In some of these cases, such as Law Society of New South Wales v Vosnakis [2007] NSWADT 42 and Law Society of New South Wales v Koffel [2010] NSWADT 177, the delinquency was eventually remedied by the solicitor. In others it was not. In the present case, the Respondent has made all relevant superannuation payments, although according to his oral evidence during the hearing he continues discussions with the Australian Taxation Office in order to resolve outstanding issues in connection with PAYG.
In some cases, such as Law Society of New South Wales v Vosnakis [2007] NSWADT 42, the remediation was in response to pressure from third parties directed at forcing payment. In others, such as Law Society of New South Wales v Koffel [2010] NSWADT 177, the remediation appears to have been undertaken by the solicitor concerned without the need for significant external pressure. In the present case, there is no clear evidence concerning the motivations for the Respondent's decision to make the relevant payments and to engage with the Australian Taxation Office with a view to resolving the outstanding matters.
It is striking that in all except one of the cases referred to, this Tribunal or its predecessor found that the solicitor's conduct in failing to pay employee superannuation contributions, or to ensure their payment by a company conducting an incorporated legal practice for which the solicitor was responsible, amounted to professional misconduct. The one exception was in the case of Law Society of New South Wales v Koffel [2010] NSWADT 177. What appears relevantly to differentiate that case from all the others is that when his practice's financial difficulties became apparent, the solicitor met with his staff and sought their agreement to attempt to trade out of those difficulties. In doing so, he informed them that the practice might not be able to pay their superannuation contributions as and when they fell due, but they accepted his personal guarantee of their eventual payment.
In the present case, however, the Respondent did not offer the Complainant that courtesy. Rather, he conscripted both her and her superannuation entitlements in his efforts to have the Law Practice trade out of its difficulties without either consultation or even frank disclosure to her of the Law Practice's difficulties: 1. At paragraph 15 of his affidavit of 10 February 2021, he states as follows: "I confirm that I gave excuses to the Complainant in response to her several requests"; and 1. At paragraph 20 he refers to a conscious decision on his part to delay the termination of the Complainant's employment by a month, at a time at which the Law Practice was not meeting her superannuation entitlements: "... because I thought it was better for her in dealing with matters she had beyond her employment with me, so she could approach those issues as a person in serious part-time employment".
There is, in the Tribunal's view, nothing in the circumstances of this case to justify a finding other than that the Respondent's conduct is professional misconduct. The Tribunal recognises that the circumstances of his failure to ensure the payment of the Complainant's superannuation entitlements may well place it towards the less serious end of the scale of professional misconduct, but nonetheless in the Tribunal's assessment his conduct still amounts to professional misconduct rather than mere unsatisfactory professional conduct. This is for several reasons: 1. The Respondent's delinquency was not a unique occurrence. It comprised repeated failures over an extended period of approximately 20 months. 2. The Respondent's failures were a conscious exercise in robbing Peter (in the persons of the Complainant and the Australian Taxation Office) to pay Paul (in those of the Law Practice's suppliers and other business creditors). The failures were deliberate and systematic, even though their motivation may have been to remedy the consequences of mismanagement, rather than direct personal gain. 3. In diverting funds that should have gone towards the Complainant's superannuation or the payment of PAYG liabilities, the Respondent displayed neither: 1. the candour and honesty in his dealings with the Complainant, nor 2. the respect for the law (and the need to comply with his obligations under it), that society in general and his professional colleagues in particular could reasonably expect from a solicitor.
What follows, in the Tribunal's view, is that the Respondent's conduct amounts to: 1. Not merely unsatisfactory professional conduct, but rather unsatisfactory professional conduct which is characterised by a consistent failure to reach and maintain a reasonable standard of competence and diligence; it is thus professional misconduct within the statutory meaning in section 496 of the Act; and 2. Conduct by the Respondent in the pursuit of his professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency, and thus professional misconduct at general law; the Respondent's disregard for his legal obligations as an employer, coupled with his lack of frankness towards the Complainant, tell particularly against him here.
The Tribunal notes, not without sympathy, the Respondent's various health issues referred to in his affidavit of 10 February 2021. None of these, however, are in the Tribunal's view sufficient to modify its finding.
The Tribunal read and noted the various personal references submitted by the Respondent. While they speak well of the Respondent's personal qualities, none of the material in them materially affects either the Tribunal's findings or its judgment as to the appropriate orders, which are discussed below.

Orders sought

The Applicant asks that the Tribunal: 1. reprimand the Respondent in relation to his conduct; 2. impose a fine on the Respondent; 3. order that the Respondent pay the Applicant's costs; and 4. make such further or other orders as the Tribunal considers appropriate.
The Tribunal agrees that a reprimand is appropriate.
The Tribunal sees little utility in imposing a fine. The Tribunal is satisfied from the evidence that: 1. the Respondent's delinquency was attributable to a substantial degree to the financial pressures under which the Law Practice was labouring, and 2. the financial situations of both the Law Practice and the Respondent personally remain, according to the Respondent's oral evidence, less than robust. That being the case, to impose a fine risks making a bad situation worse, for no real purpose other than to signal the Tribunal's disapproval of the Respondent's conduct (which the Tribunal does in any case by issuing a reprimand and making the other orders set out below).
Since the Respondent intends to continue in practice, as he told the Tribunal during his oral evidence, orders directed at: 1. improving his practice management skills, and 2. promoting a prompt resolution of outstanding matters between him and the Australian Taxation Office, are in the Tribunal's view appropriate to better protect the public.
As for costs, Clause 23 of Schedule 5 of the NCAT Act requires the Tribunal to make a costs order against the Respondent in the absence of exceptional circumstances if it makes a finding against him of unsatisfactory professional conduct or professional misconduct. Nothing in any of the Respondent's personal circumstances, the Respondent's conduct which forms the subject of this complaint, or the Applicant's management of this complaint amount in the Tribunal's view to special circumstances of the relevant kind.
The earlier proceedings by the Applicant against the Respondent were dismissed without any order as to costs. Those earlier proceedings can therefore be disregarded for purposes of considering whether there are any relevant special circumstances in this complaint.

Orders

The Tribunal orders as follows: 1. That the Respondent be reprimanded for professional misconduct. 2. That the Respondent undertake further professional education in accordance with the following terms: 1. The Respondent undertake, complete and pass at his own expense, by 31 May 2022 (the Relevant Date), an appropriate business management course (the Course) as approved by the Director, Legal Regulation, of the Law Society of New South Wales (the Director) and achieve a pass mark of at least 65% in that Course. 2. The Respondent shall, within seven (7) days of receipt of notification of the result of his participation in the Course, provide to the Director the original of such notification. 1. That by the Relevant Date the Respondent provide to the Director written evidence that the Respondent has reached agreement with the Australian Taxation Office as to the amount of all outstanding PAYG, superannuation and other amounts (including penalty tax and interest on amounts unpaid) which the Law Practice is required to remit to the Australian Taxation Office in respect of the financial years ended 30 June 2013, 30 June 2014 and 30 June 2015. 2. That should the Respondent fail to comply with orders (2) and (3) by the Relevant Date, his practising certificate for: 1. The 12 months beginning on 1 July 2022 and ending on 30 June 2023, and 2. Each subsequent 12-month period, until he complies with those orders, be issued on terms that he may not practise as the principal of a legal practice. 1. That the Respondent pay the costs of the Applicant as agreed or assessed.

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

Amendments 20 September 2021 - Respondent name corrected in case title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2021

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (7)