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[2014] NSWCATOD 2
NCAT Occupational
2013-09-12
Original judgment source is linked above.
reasons for decision 1In its Judgment delivered on 5 July 2013, the Tribunal found the Respondent Solicitor guilty of professional misconduct with respect to the single ground specified in the Society's Application, filed on 30 August 2012, that he failed to transfer the Complainant's file. 2This decision relates to the orders to be made by way of penalty and to the question of costs, following the finding made by the Tribunal of professional misconduct. 3The consequential orders sought, as set out in the Society's Application, are that the Respondent be reprimanded, fined and pay the Society's costs as agreed, or assessed. 4The Solicitor was admitted to practice in New South Wales on 4 October 2002. There have been no prior disciplinary findings against the Solicitor. 5The conduct which brought the Solicitor before this Tribunal involved him withholding the complainants file on the basis that he was entitled to maintain a lien, in respect of future costs, relating to the complaint against him. The conduct continued over a number of years. 6In making its findings of professional misconduct against the solicitor, the Tribunal stated: 46. Throughout the hearing, the Solicitor remained steadfast in his opinion that his Costs Agreement entitled him to maintain the asserted lien over the Complainant's file, despite the fact that he had previously been requested by the Law Society to make submissions as to the legal authority that supported his opinion. He failed to cite any such authority to the Law Society during its lengthy investigation and he failed to cite any such authority to the Tribunal during the course of the hearing. 47. We note that the Solicitor remained recalcitrant even after the Law Society notified him by way of a letter dated 21 September 2011 that the Tribunal could determine that his refusal to transfer the Complainant's file could amount to unsatisfactory professional conduct and he was invited to make submissions in relation to the undertakings sought by the Law Society. He subsequently responded with respect to the requested undertakings. 48. By letter dated 2 December 2011, the Law Society notified the Solicitor that the Professional Misconduct Committee had again considered the matter and had formed the view that his conduct could be found by this Tribunal to be 'professional misconduct' and that consideration would be given to commence proceedings in this Tribunal. 49. By letter dated 7 March 2012 from the Law Society to the Solicitor, he was informed that proceedings were to be instituted against him in this Tribunal, the reason for the decision being: Reason for Decision The solicitor believes that he may maintain his lien over his file on the basis that he is entitled to recover costs associated with the complainant's complaint to the Legal Services Commissioner. The Committee considers that in the circumstances where the complainant has satisfied all accounts rendered in association with the file the solicitor's claim to be entitled to a lien is spurious. The Committee does not consider that the costs associated with responding to a complaint can justify the maintenance of a lien over the file. 50. In the light of this evidence, it is incomprehensible to this Tribunal as to why the Solicitor continued to advance his opinion, particularly where he failed to adduce any additional evidence or cite any legal authority that supported its validity. In our view, there is no proper basis for interpreting the relevant terms of the Costs Agreement in a broad manner so as to support the Solicitor's position and he therefore had no reasonable basis for asserting the claimed lien. We further find that his position that the question of his costs remain 'open' as there has been no assessment of his costs, is untenable. The evidence before us indicates that he had performed work for the Complainant in accordance with the terms of his retainer and that he issued tax invoices and that these were paid in full from monies held in his trust account for that purpose. He acknowledged this in his letter to the Office of Legal Services Commissioner. That was the end of the matter and in our view, any subsequent assessment process would not change the facts that his tax invoices were fully satisfied. 7When the Solicitor appeared before the Tribunal on 12 September 2013, he advised the Tribunal that he unreservedly apologised for any trouble caused to the Complainant, and offered an apology both to the profession and to the Tribunal. Furthermore, he said he understood he had been found to be wrong and he fully accepted that proposition. 8In response to a question from the Tribunal as to the current whereabouts of the file, the Solicitor answered that it had not been found because it had been with a Barrister who had unfortunately died and the file had not been able to be located. 9The Solicitor advised that the Complainant had obtained a default judgment in the Magistrates Court of the Australian Capital Territory against him in the sum of $50,000.00. He also advised that as far as he is aware, there are no other proceedings between himself and the Complainant, except for a compensation claim brought by the Complainant against the Solicitor, but which did not form part of these proceedings. 10The orders which the Tribunal may make consequential on findings of professional misconduct (or unsatisfactory professional conduct) are found in part 4.8 of the Legal Profession Act 2004, particularly sub ss 562(2) and (4). 11The Tribunal has the power to fine a respondent up to a maximum of $75,000 in relation to a finding of professional misconduct. It can also order a reprimand under s 562(2)(e) of the Legal Profession Act. 12In relation to costs, s 566(1) of the Legal Profession Act provides that where the Tribunal has found a practitioner to have engaged in professional misconduct or unsatisfactory professional conduct, it must make orders requiring a practitioner to pay the Society's costs "unless ....... satisfied that exceptional circumstances exist". 13A Tribunal may fix the amount of costs itself, or order the amount of costs be assessed by a Costs Assessor under part 3.2 of the Act: s 566(6). 14The Applicant submitted that the circumstances of this particular matter, and the conduct of the hearing, demonstrate no exceptional circumstances such that the statutory presumption in favour of an order for costs could be overcome, and therefore, the Solicitor should be ordered to pay the Society's costs. It seeks an order that the costs be assessed pursuant to Part 3.2, if not agreed.
Nature of the Jurisdiction 15It is clear that the function of the disciplinary proceedings and the making of consequential orders is protective. This was considered by Beazley JA in Law Society of New South Wales v Walsh [1997] NSWCA 185 at 40; at 40.40-45 her Honour said expressly: The court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into the account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of its solicitors. 16Sanctions imposed under s 562 of the Act should not be punitive or more severe than required for the purposes of protecting the public; upholding the reputation of the legal profession within the community; deterring practitioners who had engaged in professional misconduct or unsatisfactory professional conduct from behaving in a similar fashion in the future; and making it clear to other practitioners that conduct of this nature will expose them to sanctions: Legal Services Commissioner v Tsalidis, Council of the Law Society of NSW v Tsalidis [2013] NSWADT 101 at [72]-[74]. 17A reprimand "may operate as a warning to the offender and also to others who may be contemplating similar wrongful conduct": New South Wales Bar Association v Sahade (No. 3) [2006] NSWADT 39 at [125]. 18The Applicant submitted that in addition to a reprimand, bearing in mind the finding of professional misconduct, there ought to be an order that the respondent pay a fine.
Determination 19In its oral submissions, the Applicant took the view that the Solicitor's apology did not change its position as regards the orders it sought, and clearly that was the correct position to adopt. However, the Tribunal notes that the apology given by the Solicitor appeared to be genuine. 20The conduct the subject of the Tribunal's finding, continued over a number of years without justification as found by this Tribunal and accordingly, we have no doubt that a reprimand is required. 21We also have no doubt that a fine is also required but in the lower range. In determining quantum, we have taken into account the Solicitor's evidence as to the default judgement obtained against him in favour of the complainant, the Applicant's costs including costs of Mr Sofiak and the fact that he had originally retained legal representation in relation to these proceedings at a cost to him of approximately $20,000.00. 22In these circumstances, the Tribunal has determined that a fine of $2,500.00 is appropriate.
Orders The Tribunal makes the following Orders:
Amendment of Reasons 23In the Society's submissions relevant to this penalty hearing, it was drawn to the Tribunal's attention that in its Judgment published 5 July 2013 the judgment refers to Ms Foord's affidavit as having been sworn on 11 October 2012 whereas the Affidavit was sworn on 29 August 2012, and filed on 30 August 2012. To that extent, the Judgment is corrected by this paragraph. 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 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: 28 January 2014
Council of the Law Society of NSW
Prosilis