ACT Civil and Administrative Tribunal|2012-08-31|Before: Ms J

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER X (Chanaka Bandarage) (Occupational Discipline) [2012] ACAT 60 (31 August 2012)

COUNCIL OF THE LAW SOCIETY OF THE ACT AND LEGAL PRACTITIONER X (Chanaka Bandarage) (Occupational Discipline) [2012] ACAT 60

Catchwords: OCCUPATIONAL DISCIPLINE - legal practitioner - penalty following findings of unsatisfactory professional conduct and professional misconduct - objectives of disciplinary action -practitioner's insight and remorse - prior and subsequent disciplinary actions -- effect of decision not to renew practising certificate - totality of penalty - costs - failure of applicant to make out some particulars not exceptional circumstances

List of legislation: Legal Profession Act 2006, ss 6, 384, 425 and 433(1)

List of cases: Council of the Law Society in the A.C.T & The Legal

Practitioner [2011] ACAT 29

Council of the Law Society of the ACT & Legal Practitioner "S" [2012] ACAT 29

Council of the Law Society of the ACT & The Legal Practitioner X [2012] ACAT 34

The Law Society of the ACT & The Legal Practitioner

[2011] ACAT 51

The Law Society of the ACT & The Legal Practitioner

[2011] ACAT 57

A local practising certificate is not to be granted to the respondent before the end of three months from the date of this order.

The respondent is to pay the applicant's costs of this application on a party/party basis at the Supreme Court scale in an amount to be agreed, or failing agreement, to be determined in accordance with the procedure set out in paragraph 42 of these reasons for decision.

On 16 May 2012, the Tribunal gave Reasons for Decision and made Orders in relation to liability in this matter. The reasons are reported as Council of the Law Society of the ACT & The Legal Practitioner X [2012] ACAT 34.[1]
The Tribunal found that the respondent was guilty of professional misconduct in respect of two grounds of complaint, and unsatisfactory professional conduct in relation to the third ground of complaint. The applicant was found not to have discharged the requisite onus of proof in relation to two particulars alleged in ground two; namely, particular 2.1.3 and 2.2.
The Tribunal ordered that there be a further hearing to deal with matters of penalty and costs. Directions were given regarding the filing of written submissions. The further hearing was held on 17 August 2012.

Section 425 of the Legal Profession Act 2006 (the Act) sets out the orders that the Tribunal may make if it is satisfied that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct. The Tribunal's decision about appropriate orders is guided by the objectives of the Act and the disciplinary scheme. The primary objectives are to promote the regulation of the legal profession in accordance with the interests of the administration of justice and to protect the public; rather than to punish the practitioner.[2]
Specific deterrence of the practitioner who is the subject of an application and general deterrence of other practitioners are related objectives. The relationship between the objectives was described by Giles AJA in Law Society of New South Wales v Foreman in this way:

.... But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element of deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.[3]

The relevant principles have been described in greater detail in several Tribunal decisions. [4]

In the course of submissions on penalty, both written and oral, the respondent displayed little appreciation of the gravity of his behaviour, and the impact it had on his former clients, the complainants.
He alleged that at all times he was aware of his duties to his clients and was doing all in his power to avoid delay. In exculpation, he refers to the pressures of running a busy office and misplacement of documents by his support staff. The findings of the Tribunal on these matters are clearly stated in the Reasons for Decision of 16 May 2012.
In his written submissions, at letter E on page 3, the respondent said that during the course of the proceedings he found a 'crucial letter' of 28 April 2008 which had been sent from his office covering the sending of the incorrect contract to the mortgagor's solicitor. He requests credit for disclosing the letter in an affidavit of 11 June 2010.
This claim for credit tends to overlook the following reference to the dispatch of the contract on 28 April 2008 in the respondent's letter to the complainants of 10 December 2008.

"We sent the wrong contract to (the mortgagor's solicitors) on 28 April 2008. We have a copy of the letter sent to (the mortgagor's solicitors) in this regard in our file."

The Tribunal views this as an example of the apparent lack of insight that the practitioner has about the degree of his culpability in the matters the subject of complaint.
The respondent's submissions contain a number of statements of remorse. It is difficult to accept that the respondent is fully remorseful when elsewhere in his submissions appear many statements of justification for his actions.

These include letters of support from colleagues in the profession, communications of gratitude from clients, and communications indicating the respondent's standing in various areas of his community.
The Tribunal takes note of the contents of those documents. They show that he has many clients sufficiently happy with his services to write to personally thank him. Others show the respect with which he is regarded within his community.

Two prior disciplinary actions involving the respondent in the ACT are referred to by the applicant in its submissions. We note that in one of them, The Law Society of the ACT & The Legal Practitioner [2011] ACAT 51 at [45], the Tribunal said:

"We cannot be confident that he fully appreciated the nature of the wrongdoing in this matter. This raises a doubt about his ability to recognise what (he) needs to do, or refrain from doing, in order to satisfy the standards of competence or diligence required of him in the future."

The Tribunal considers that the respondent's transgressions in the present matter are more serious than those in the earlier actions. The existence of the earlier matters indicates default on a continuing basis. Also of concern are the earlier comments regarding insight having regard to this Tribunal's views in that regard.

SUBSEQUENT DISCIPLINARY ACTIONS 2. The Tribunal was told about two other disciplinary actions that post date this action, brought by the Law Society against the respondent. 3. In one matter, a decision on liability was given by a differently constituted Tribunal on 28 June 2012. Adverse findings have been made against the respondent but there has been no hearing on the question of penalty as yet. 4. While being aware of the matter, the Tribunal as presently constituted considers that it should disregard the findings of liability made for the purposes of these proceedings. It would be unfair to the practitioner to take into account proceedings which are incomplete. 5. In another matter, on 14 August 2012, yet another differently constituted tribunal made a finding of unsatisfactory professional conduct "at the lower end of the scale" against the respondent after considering a joint submission from the applicant and the respondent. The respondent was reprimanded and ordered to pay a fine and costs. This Tribunal notes but otherwise disregards this matter as well.

The substantive decision in this matter was given on 16 May 2012, shortly before the end of the financial year when practising certificates in the Territory fell due for renewal.
At the penalty hearing on 17 August 2012, the Tribunal was told that the respondent's practising certificate was not renewed with the consequence that he has not had a practising certificate since 30 June 2012. Although there was no evidence to this effect, the Tribunal assumes that its findings were taken into account by the Law Society when it refused the respondent's application for renewal of his practising certificate.
The respondent told the Tribunal that he has not appealed the decision of the Law Society.

In its written submissions, the applicant asked the Tribunal to order that the respondent's practising certificate be suspended for a period of six months from the date of the order, that he pay a fine of $10,000 and that he pay the applicant's costs of the proceedings.
The applicant amended its submission at the hearing as a consequence of its decision to refuse to renew the respondent's practising certificate. Instead, the applicant seeks an order that the respondent not apply for a practising certificate before the end of six months from the date of the order, in addition to the fine and an order for costs. The applicant's submission in summary is that such orders would act as an appropriate specific and general deterrence in the circumstances of this case.
The respondent submitted that he has been punished significantly as a result of the loss of his practising certificate and by the financial penalties that have been imposed on him in earlier proceedings. He said that the orders sought by the applicant would have no additional deterrent effect from his perspective and would not serve any purpose as far as the protection of the public is concerned. The orders would only impose further punishment. He proposed instead that he should be reprimanded and ordered to pay 40% to 50% of the applicant's costs. His argument relating to costs is referred to in greater detail below.

The complaint in this matter has three components in respect of which separate findings have been made. However, the complaint relates to a course of conduct arising out of a single instance of conveyancing work undertaken by the respondent. The grounds specified as supporting the complaint, although isolating individual instances of conduct, can be seen as components of a continuing course of conduct involving a single transaction.
In those circumstances, it is appropriate for the Tribunal to consider penalty in the context of the whole course of conduct, rather than considering individually the separate instances which support the substance of the complaint. Indeed, the form of the complaint alleging an overall course of conduct supported by individual instances invites such an approach.
No submission to the contrary was made by either party.

In assessing the appropriate penalty, the Tribunal takes into account its findings and determinations in relation to the three grounds of complaint set out in the application. It will assess a penalty for the complaint as a whole and not on the basis of separate penalties for the individual grounds. In considering a penalty, the Tribunal notes the supportive material presented by the respondent with his submissions and referred to earlier. It also notes the submissions made by the respondent of the financial impact earlier proceedings have had on him and the financial impact that, at least potentially, these proceedings could have on him.
The Tribunal notes the loss of the respondent's practising certificate, and the likely contribution that its findings and decision made to that process. The Tribunal accepts the respondent's submissions that he has sustained a significant personal loss as a result. However, the conduct that is the subject of the proceedings, when considered in the context of the earlier disciplinary actions against the respondent, justifies the making of an order that reflects the Tribunal's concern about the extent of the respondent's understanding of the standards required of a competent and diligent practitioner and that indicates to other practitioners that similar infractions are likely to be dealt with seriously. The penalty proposed by the respondent would not achieve that outcome.
Section 425(3)(c) of the Act gives the Tribunal the power to order that a local practising certificate not be granted to a practitioner before the end of a stated period. In the circumstances, the Tribunal considers that such an order would have the appropriate protective, and general and specific deterrence effects.
The loss of a practising certificate would have a profound effect on a practitioner's capacity to resume his or her practice, depending on the period of suspension. A period of three months could be seen as a watershed period after which successful resumption of practice would be become increasingly difficult.
In the rather unusual circumstances of this case, the Tribunal considers that the making of an order pursuant to Section 425(3)(c) to the effect that the respondent not be granted a local practising certificate for a period of three months from the date of the order, is appropriate. This order does not mean of course that the respondent will be granted a practising certificate at the end of the period - he must still make his application and the applicant must still consider the application in accordance with the relevant statutory requirements.
The applicant submitted that a financial penalty of $10,000 should be imposed on the respondent as well as an order affecting his right to practise. The Tribunal notes the respondent's submissions regarding financial penalty and accepts that the imposition of a fine will not have any additional protective or deterrent effect in the circumstances. For reasons set out below, the respondent will be required to pay the applicant's costs. It is appropriate to take that into account. Costs are likely to be substantial because the hearing of the application proceeded over several days. The Tribunal considers that an order for costs will have a significant deterrent effect and that no further financial penalty is warranted.

It became apparent that the complainants were out of pocket as a result of the delay caused by the respondent. This was a matter which was recognised by the respondent, however although he made an offer to compensate, no agreement could be reached as to quantum.
Compensation was not raised as an issue in the proceedings, and in those circumstances, the Tribunal considers it inappropriate to make any order relating to compensation.

Section 433(1) of the Act requires the Tribunal to order that the respondent pay the applicant's costs because of the findings made against him, unless the Tribunal is satisfied that exceptional circumstances exist.
The application of section 433(1) has been considered by the Tribunal in other proceedings. [5]
The respondent submitted that the Tribunal's findings that particulars 2.1.3 and 2.2 were not established were exceptional circumstances justifying a reduction in any order for costs to 40 to 50% of the total costs of the applicant. He urged the Tribunal to adopt a "costs follow the event" approach as was apparently applied in appellate proceedings in which he was involved. The respondent's submission disregards the clear words of section 433(1). The intent of the legislature is clear; once the findings referred to in section 433 are made out; exceptional circumstances are required to divert that intent.
The Tribunal does not regard the loss of a battle in the winning of a war as constituting an exceptional circumstance. The fact that a tribunal is not satisfied to the requisite standard that some particulars are not made out is not, by itself, an exceptional circumstance. The Tribunal did not find that the allegations that were the subject of the particulars were devoid of merit or that it was unreasonable for the applicant to have included particulars 2.1.3 and 2.2 in the conduct alleged to have supported the complaint. It was consistent with the applicant's responsibilities as a regulatory authority to raise the issues. The Tribunal is not satisfied that exceptional circumstances exist. It follows that an order must be made requiring the respondent to pay the whole of the applicant's costs.
The respondent should pay the applicant's costs on a party/party basis on the scale applicable to matters proceeding in the Supreme Court. The parties should make an attempt to reach agreement on costs. If agreement is not reached within 28 days, the applicant may file and serve a Bill of Costs using Form 2.45 approved under the Court Procedures Rules 2006. The respondent is to file and serve a document setting out the objections he has to the Bill within 14 days of its service. The Bill and the respondent's objections will be

referred to a Registrar of the Tribunal. The Registrar is to assess the costs and make a recommendation to the Tribunal concerning the amount that it should state be paid by the respondent.

[1] This decision was previously anonymised and cited as Council of the Law Society of the ACT v Legal Practitioner X [2012] ACAT 60 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

[4] Council of the Law Society in the A.C.T & The Legal Practitioner "S" [2011] ACAT 29, The Law Society of the ACT & The Legal Practitioner [2011] ACAT 51 at 30 - 33, The Law Society of the ACT & The Legal Practitioner [ 2011] ACAT 57 at 9 - 13, Council of the Law Society of the ACT & Legal Practitioner "S" [2012] ACAT 29 at 3 - 5

[5] The Law Society of the ACT & The Legal Practitioner [2011] ACAT 51 at 55_,_ 61-64_, The Law Society of the ACT & The Legal Practitioner_ [2011] ACAT 57 at 28, Council of the Law Society of the ACT & Legal Practitioner "S" [2012] ACAT 29 at 25

Procedures Rules 2006

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER X

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Judgment (35 paragraphs)

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER X (Chanaka Bandarage) (Occupational Discipline) [2012] ACAT 60 (31 August 2012)

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Legislation Cited (2)

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