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[2026] ACAT 12
ACT Civil and Administrative Tribunal
2026-02-18
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LP 012024 (Angus Bucknell) (Occupational Discipline) [2026] ACAT 12 OR 1/2024 Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – legal practitioner – failure to keep client appraised of approaching expiration of the limitation period – failing to take steps to avoid the expiration of the limitation period without commencing proceedings – subsequent dishonesty towards client subsequent to expiration of the limitation period – whether professional misconduct or unprofessional conduct
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 Evidence Act 2011 s 140(2) Legal Profession Act 2006 ss 386, 387, 419 Road Transport (Third Party Insurance) Act 2008 s 136 Subordinate Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 (ACT) rr 4, 5, 7 Cases cited: Bechara v Legal Services Commissioner [2010] NSWCA 369 Briginshaw v Briginshaw [1938] HCA 34 Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315 Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 Fox v Percy [2003] HCA 22 Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 Watson v Foxman (1995) 49 NSWLR 315
Tribunal: Acting Presidential Member G Curtin SC Date of Orders: 14 February 2025 Date of Reasons for Decision: 14 February 2025 Date of Publication: 18 February 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 1/2024
BETWEEN: COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY Applicant AND: LP 012024 Respondent
TRIBUNAL: Acting Presidential Member G Curtin SC DATE: 14 February 2025
ORDER The Tribunal orders that:
The application is to be determined in two parts: breach and characterisation (stage 1) followed by penalty (stage 2) if required.
Stage 1 is to be determined before me.
Paragraph 2B of the Response dated 26 February 2024 signed by the respondent is amended by substituting the number 58 for the number 57 where it appears in that paragraph.
The applicant is to file and serve any evidence on penalty and costs by 10 March 2025.
The respondent is to file and serve any evidence on penalty and costs by 31 March 2025.
The applicant is to file and serve any evidence on penalty and costs in reply by 14 April 2025.
The parties are to provide their mutually available dates to the Tribunal for a one-day hearing on penalty and costs by 10 March 2025.
………………………………… Acting Presidential Member G Curtin SC REASONS FOR DECISION
Introduction 1. In these proceedings, the applicant (the Council) brought three charges against the respondent pursuant to section 419 of the Legal Profession Act 2006 (the LPA).
The application was split, with the hearing before me, and these reasons, being concerned with breach and characterisation (stage 1). A penalty hearing (stage 2) will be held subsequently.
The respondent acted for Mr Brodie Oreskovic in a claim for compensation arising out of a motor vehicle accident which occurred in the Australian Capital Territory on 21 January 2018.
The limitation period for commencing court proceedings in relation to that claim expired without such proceedings having been commenced.
The Council alleges the respondent was guilty of professional misconduct, or alternatively, unsatisfactory professional conduct, in: (a) failing to provide advice to his client between 6 February 2018 and 21 January 2021 regarding the need to attend a compulsory conference and to commence proceedings before the limitation period expired (Charge 1); (b) misleading his client on 15 September 2021 as to the status of the negotiations with the solicitors for the putative motor vehicle claim defendant (Charge 2); and (c) failing to progress his client's claim diligently and as promptly as reasonably possible during certain specified periods (Charge 3).
The respondent admitted to the facts alleged in Charges 1 and 3, accepted that that conduct amounted to unsatisfactory professional conduct, but denied it amounted to professional misconduct.
In relation to Charge 2, the respondent disputed some of the facts alleged and denied he deliberately mislead or lied to his client. On the respondent’s version of events, the client misapprehended what was said, but admitted that he had failed to correct his client’s misapprehension, admitted that that failure was unprofessional professional conduct, but denied it amounted to professional misconduct.
The facts set out below were not in dispute, except in relation to some of the events which took place on 15 September 2021, although the respondent disputed the characterisation of the conduct complained of. When reciting those facts, I have added pertinent observations to aide an understanding of my ultimate conclusions and where it was better to make those observations at that time rather than later in these reasons.
The Rules
Three rules of the Legal Profession (Solicitors) Conduct Rules 2015 (the Rules) are relevant, being rules 4, 5 and 7.
The gravamen of the allegations relate to the alleged failure to deliver legal services competently, diligently and as promptly as reasonably possible, dishonesty in dealings with the client, and a failure to provide clear and timely advice.
Rules 4, 5 and 7 relevantly provided: 4 OTHER FUNDAMENTAL ETHICAL DUTIES 4. 1 A solicitor must also: 4. 1.1 act in the best interests of a client in any matter in which the solicitor represents the client; 4.1.2 be honest and courteous in all dealings in the course of legal practice; 4. 1.3 deliver legal services competently, diligently and as promptly as reasonably possible; 4.1.4 avoid any compromise to their integrity and professional independence; and 4. 1.5 comply with these Rules and the law. 5 DISHONEST AND DISREPUTABLE CONDUCT 5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to: 5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or 5.1.2 bring the profession into disrepute. … 7 COMMUNICATION OF ADVICE 7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement. Background
The respondent was at all material times an Australian legal practitioner and local legal practitioner as defined in the LPA and was the holder of an unrestricted practising certificate.
2018
On 21 January 2018, Mr Oreskovic was injured in a motor vehicle accident in the Australian Capital Territory.
On 24 January 2018, the respondent accepted instructions to act for Mr Oreskovic on a claim for compensation for injuries suffered in that accident.
On 6 February 2018, the respondent provided notice of Mr Oreskovic's claim to the Office of the Nominal Defendant (OND).
By letter dated 6 February 2018, the respondent provided a Costs Agreement to Mr Oreskovic; advised him that he was entitled to make a claim pursuant to the Road Transport (Third-Party Insurance) Act 2008 (the RTA) (now repealed); advised him about the possible need to commence court proceedings if the matter did not settle; and advised him that any court proceedings needed to be commenced within three years of the accident, namely before 21 January 2021.
The respondent then attended to various matters necessary for the progress of such a claim, such as providing a notice of claim, organising medico-legal reports and the like. Some of those steps involved corresponding with the solicitors for the OND, being MinterEllison.
No further advice regarding the limitation period was ever given to Mr Oreskovic.
2019
On 22 January 2019, Mr Oreskovic's father provided the respondent with Mr Oreskovic's income history as requested.
By letter dated 22 March 2019, MinterEllison asked whether the respondent was ready to participate in a “compulsory conference” and proposed dates in April 2019.
A “compulsory conference” was a conference referred to in section 136 of the RTA. Section 136 said that claimants were required to attend a compulsory conference before court proceedings could be commenced, and that any party could call for such a conference.
The respondent did not respond to MinterEllison’s letter.
By letter dated 10 July 2019, MinterEllison called for a compulsory conference to be held on 7 August 2019. The respondent did not respond to that letter.
By letter dated 4 December 2019, the respondent asked Mr Oreskovic to make an appointment with him to obtain updated instructions in relation to the claim.
On 22 December 2019, the respondent met with Mr Oreskovic and took some instructions.
2020
On 29 January 2020, Mr Oreskovic's father provided the respondent with Mr Oreskovic's further income history as requested.
By email sent on 30 January 2020 to MinterEllison, the respondent stated that he was instructed that he was then in a position to participate in an informal settlement conference, and proposed dates in March 2020.
Between January 2020 and February 2020, the respondent and MinterEllison exchanged email correspondence attempting to schedule a compulsory conference. The respondent said he was unavailable on the dates proposed by MinterEllison.
By email sent on 7 February 2020 to MinterEllison, the respondent stated that he would obtain instructions in order to make a written offer.
By email sent on 16 April 2020, the respondent sought instructions from Mr Oreskovic to make an opening offer of $115,000 plus costs. In his email, the respondent advised Mr Oreskovic that he anticipated that the OND would not accept the offer as it represented Mr Oreskovic’s case at its absolute highest, but that the offer might compel the OND to enter settlement negotiations.
By email sent on 17 April 2020, Mr Oreskovic provided the respondent with the instructions sought.
By email sent on 21 April 2020 to MinterEllison, the respondent made an offer of $115,000 plus costs.
By email sent on 5 May 2020, MinterEllison sought further information in relation to Mr Oreskovic’s out of pocket expenses and medical evidence in support of his claim for future medical expenses.
By letter dated 12 May 2020, the respondent provided a response to MinterEllison's request for information together with a schedule of past economic loss.
By email sent on 28 July 2020, MinterEllison made a counter-offer of $25,000 plus costs.
By email sent on 29 July 2020, the respondent sought instructions from Mr Oreskovic to make a counter-offer of $105,000 plus costs.
By email sent on 29 July 2020, Mr Oreskovic provided the instructions sought.
By email sent on 29 July 2020, the respondent rejected MinterEllison's offer and made a counter-offer of $105,000 inclusive of payments plus costs.
By email sent on 31 July 2020, MinterEllison rejected the respondent's offer and made a counter-offer of $35,000 plus costs.
By email sent on 6 August 2020, the respondent rejected MinterEllison's offer and made a counter-offer of $95,000 plus costs.
By email sent on 7 August 2020, MinterEllison rejected the respondent's offer and made a counter-offer of $37,500 plus costs.
By email sent on 19 August 2020, the respondent rejected MinterEllison's offer and made a counter-offer of $90,000.
By email sent on 25 August 2020, MinterEllison rejected the respondent's offer and made a counter-offer of $39,000 plus costs. This was the last offer made by MinterEllison.
By email sent on 26 August 2020, the respondent rejected MinterEllison's offer and made a counter-offer of $87,500 inclusive of repayments plus costs.
By email sent on 15 September 2020, MinterEllison advised the respondent that, in their view, negotiations had been protracted and were unlikely to lead to any settlement. MinterEllison asked for a compulsory conference to be held in October 2020 and suggested six dates.
By email sent on 28 October 2020, the respondent advised MinterEllison that he was not instructed to participate in a compulsory conference, however, his client remained willing to participate in an informal settlement conference.
By email sent on 28 October 2020, the respondent advised Mr Oreskovic that he had not been able to get MinterEllison to budge from their last offer of $39,000 plus costs. He advised Mr Oreskovic that he had told MinterEllison that Mr Oreskovic remained willing to have an informal settlement conference but not a compulsory conference because that would lead to costs penalties and the need to commence court proceedings. He advised Mr Oreskovic that he would keep him informed, but that Mr Oreskovic may have to be prepared for “$39,000 to be their final offer”.
The respondent did not provide any further advice to Mr Oreskovic to the effect that his claim would be statute barred on 21 January 2021 (about three months away) or what could be done to preserve his claim. No advice was given as to the pros and cons of a compulsory conference, nor the pros and cons of commencing proceedings.
By email sent on 4 November 2020, MinterEllison asked the respondent to seek his client's instructions to make a reasonable settlement offer within 14 days and stated that they would otherwise nominate a date for a compulsory conference. The respondent did not respond to this correspondence, nor did he seek instructions from Mr Oreskovic in relation to any response to that letter.
2021
The respondent did not communicate with MinterEllison (or the insurer) at any time between 4 November 2020 and 15 September 2021. The respondent took no steps of any description during that period to advance Mr Oreskovic’s claim or to protect his claim from becoming statute barred.
The limitation period in relation to Mr Oreskovic's claim expired on 21 January 2021. It expired without any communication between the respondent and his client after the email of 28 October 2020.
The respondent said that although he was aware of the relevant limitation period under the statute, time expired because, he assumed, he had “not informed” himself or had forgotten the limitation period in relation to Mr Oreskovic’s claim.
Although the respondent asserted in a letter to the Council that he believed he acted competently and diligently in progressing Mr Oreskovic’s matter at all times prior to it becoming statute barred, he retreated from that position in cross-examination, saying that he did so only up to November 2020. He accepted that it was “untenable” to suggest he acted competently and diligently between 20 November 2020 and 21 January 2021, a critical time in which to obtain his client’s instructions, and to attend a compulsory conference and commence proceedings if instructed to do so.
On 15 September 2021, Mr Oreskovic telephoned the respondent, and they had a brief conversation. The respondent needed to find the file and they agreed to talk later.
The respondent then telephoned Mr Oreskovic later that same day. Mr Oreskovic was with his partner and mother, and put the respondent on speakerphone so that the others could hear the conversation. On Mr Oreskovic’s version of events, they had a conversation to the following effect: Respondent: I spoke to the insurer. Their last offer is $39,000. They're not going any more than that. Mr Oreskovic: Well let's take it to Court. Respondent: You'll lose everything. You'll have to pay me and you'll be out of pocket. You have to give an answer before 5.00pm today.
There are three representations in that conversation which are relevant to these proceedings. First, that the respondent had spoken to the insurer. Second, that the OND had put an offer of $39,000. Third, that that offer was open for acceptance.
Shortly after that conversation, Mr Orekovic emailed the respondent in terms which, at least partly but in significant respects, corroborated his recollection of this conversation. I shall come to that email shortly.
Mr Oreskovic’s partner and mother gave evidence. Their recollections corroborated, in part, Mr Oreskovic’s version of the conversation.
The evidence of Mr Oreskovic’s partner, Ms Tunks-Eccles, was as follows: During this call, I heard [the respondent] and Brodie have a conversation during which: (a) [the respondent] said: (i) he has found Brodie's file; (ii) the insurer has offered $39,000 and that is all they will offer; and (iii) Brodie needs to accept the offer by 5.00pm today: (b) Brodie asked [the respondent] whether, if he had not called that day, there would have been an offer to accept; (c) [the respondent] said Brodie just needed to answer as to whether he will accept it by 5.00pm; (d) Brodie asked whether [the respondent’s] costs will be included; (e) [the respondent] said the insurer will also pay his fees; (f) Brodie: (i) said $39,000 didn't seem very fair; (ii) said his matter has been going for a long time; (iii) said [the respondent] had initially offered $150,000; and (iv) asked why he has to accept $39,000; (g) [the respondent] said that the offer made was 'his offer': (h) Brodie asked if he can take the matter to Court; (i) [the respondent] said that Brodie shouldn't take the matter to Court or he will lose everything; and (j) Brodie said he will accept the offer.
In cross-examination, Ms Tunks-Eccles explained that “his offer” in (g) in the quote above was meant to convey that the respondent was putting forward the offer made by the OND.
The evidence of Mr Oreskovic’s mother, Ms Nicole Oreskovic, as to this conversation was as follows: I specifically recall that [the respondent] said to Brodie: (a) the insurer offered $39,000; (b) you have to take it or leave it; and (c) either: (i) you have 24 hours to make up your mind; or (ii) you have 48 hours to make up your mind.
The respondent agreed that he spoke to his client that day, and agreed they spoke about Mr Oreskovic’s claim, but denied the conversation was as recalled by Mr Oreskovic. In his Response, the respondent said that on that day he was working from home due to Covid-19 pandemic restrictions, and this conversation with Mr Oreskovic was after the respondent had obtained access to his electronic file (meaning the email correspondence), he had not spoken to the insurer and did not say to Mr Oreskovic that he, the respondent, had spoken to the insurer.
The respondent had two, slightly different versions of the conversation. The first was that set out in his Response (which he signed) which was that he said that the previous OND offer of $39,000 had expired (which was incorrect, it had been expressly rejected) if he received instructions from Mr Oreskovic to do so, he would make an offer back for the same sum of $39,000 and endeavour to have it accepted by the insurer. He said that he did not say to Mr Oreskovic that he had to make a final decision by 5:00pm that day, and although he cannot recall the precise words used in the conversation, he would have given a warning about Mr Oreskovic being out of pocket if he went to court.
The second version appeared in the respondent’s affidavit affirmed on 27 June 2024. In this version, rather than the respondent putting an offer if he was instructed to do so (as alleged in the first version), he said he would try and revive the OND’s previous offer. The respondent’s evidence was: I did not state to the complainant during any phone conversation on 15 September 2021 that I had spoken to the insurer. I did indicate to the complainant during our conversation on 15 September 2021 words to the effect that the other side's last offer was $39,000 inclusive of repayments plus costs and I would attempt to revive that offer if he instructed me to do so. I recommended to him that he did so instruct me.
On either version advanced by the respondent, Mr Oreskovic was not advised that the limitation period had expired some eight months earlier, what that meant to the claim and why that had happened.
Purporting to explain that conduct, the respondent told the Council: At the time I was of the view, which I now accept to be erroneous, that the limitation bar was arguably not in place on the basis of the decision and practice in Douch v Betts and Insurance Australia Ltd t/as NRMA Insurance [2013] ACTSC126 and with reference to Casey v Alcock (2009) 3 ACTLR1. I now understand that I was wrong in forming that view on the basis of the subsequent decision in Teoh v Greenway [2015] ACTSC133. Furthermore I was of the view that arguably the bar did not yet apply on the basis that the Nominal Defendant had not yet admitted liability, in breach of its obligation under s 97(1)(b)(i), this may well still be a live issue.
More will be said about that statement later in these reasons, but it is pertinent to note that in cross-examination the respondent said he only reached the view expressed in the quote above “around, or shortly after” the 15 September conversation. The point being that from his last communication with Mr Oreskovic in October 2020, and up until 15 September 2021, the respondent’s view was that Mr Oreskovic’s claim became statute barred on 21 January 2021, and he did not advise Mr Oreskovic of that fact between those dates, nor in the conversation on 15 September.
No file note was taken by the respondent of the conversation on 15 September, and there was no other contemporaneous document which recorded, even obliquely, either of the respondent’s versions.
Neither in response to correspondence with the Council, nor in these proceedings, did the respondent set out his recollection of the contents of the conversation in the first person (being the words he recalled being used, or words to the effect of the words used to the best of his recollection). Most particularly, after being provided with a witness statement of Mr Oreskovic which set out Mr Oreskovic’s recollection of the conversation (in the same terms as set out earlier in these reasons), all that the respondent said to the Council about the 15 September conversation was: Mr Oreskovic does not correctly record the events of 15 September 2021 in his statement. Objectively, he acknowledges that his recollection of the events that afternoon is uncertain - see paragraphs 9 and 10. I was at home that afternoon due to covid. I did call Mr Oreskovic back once I had accessed his file. I did not speak to the insurer, nor did I say that I had spoken to the insurer, nor did I contact their representative Minter Ellison. I suggest that my account of these events is "inherently more likely" in any event. If the Council agrees with me, the factual matrix underlying the proposed charge 2 falls away.
The respondent’s “account of these events” was not disclosed to the Council.
Nor did the respondent attempt to set out the gist of the conversation (quoted at [64] above) until his affidavit affirmed on 27 June 2024.
At about 4:23pm on 15 September 2021, after the conversation above, Mr Oreskovic sent the respondent an email which stated: Hi [respondent], To recap the phone call that you just returned from my call earlier this afternoon, you have advised that the offer has come back at $39,000 in the hand. Your expenses were excluded from that $39,000. Subtracted from the $39,000 figure would only be their medical costs, being their one doctors visit. Are you able to advise exactly how much that cost will be? Are you able to please also confirm that the offer will stand until I get confirmation of all of the above.
The respondent did not respond to Mr Oreskovic's email, and specifically did not respond to his client’s request for confirmation that the offer would stand until he obtained confirmation of the other matters set out in the email. Nor did the respondent correct (on the respondent’s case) Mr Oreskovic’s evident misunderstanding that there was an offer of $39,000 available for acceptance at that time.
In cross-examination, the respondent said that the first time it occurred to him that the limitation period had expired was on 15 September 2021, prompted by the conversation with Mr Oreskovic.
At 4:35 pm on 15 September 2021, the respondent sent Mr Oreskovic an email which said: I have checked my emails and it appears the insurers haven't paid any medicals and on that basis nothing should be subtracted from the $39,000 but Medicare will take 10% and reimburse that to you when they are satisfied that are not owed anything. My costs are not taken from the settlement.
Between 4:57pm and 5:58pm on 15 September 2021, the respondent and Mr Oreskovic exchanged further emails in relation to the legal costs and deductions for medical bills.
After some of those emails, and at 5:04pm on 15 September 2021, the respondent emailed Mr Oreskovic to say: I can guarantee there are no medicals paid by the insurer. I will advise them that $39,000 plus costs is accepted.
Also at 5:04pm on 15 September 2021, the respondent emailed MinterEllison and said that his client would accept $39,000 inclusive of repayments plus costs to resolve his claim.
At 6:11pm on 15 September 2021, Mr Oreskovic sent the respondent an email instructing him that Mr Oreskovic would settle for $39,000.
On 22 September 2021, the respondent sent an email to MinterEllison asking for a response to his email of 15 September 2021 in which the respondent put an offer of $39,000 inclusive of repayments plus costs.
On 21 November 2021, the respondent sent a further email to MinterEllison asking for settlement documents, even though there had been no response to his emails of 15 and 22 September, and even though the matter had not, on any version, settled.
2022
Between 21 November 2021 and 1 September 2022, the respondent did nothing in relation to Mr Oreskovic’s claim.
Although the respondent said he had a (mistaken) view of the law in relation to the limitation period as quoted at [66] above, he gave no evidence of doing anything based upon that view, such as researching it, seeking counsel’s advice, advising Mr Oreskovic, or filing an application amongst other possibilities. A reading of the authorities referred to would have quickly informed any reasonable practitioner that the view expressed by the respondent in the quote referred to was legally baseless.
On 1 September 2022, MinterEllison sent the respondent an email which said that their position was that the limitation period had expired on 21 January 2021, and their client’s offer of $39,000 plus costs made on 25 August 2020 (which had been rejected on 26 August 2020) was no longer open for acceptance.
At 10:20am on 28 October 2022, Mr Oreskovic sent the respondent an email which said: Last time I spoke to you was on the 15/09/2021 where you had given me a 24 hour deadline to say yes or no to $39,000 otherwise I wouldn't receive anything. I haven’t heard anything now for 13 months and 13 days as of today. It has now been 4 years and 10 months since the day of my accident. Would you please get back to me with some closing details so I can move on from such a horrible memory.
The respondent did not respond to Mr Oreskovic's email.
The charges and the ambit of the dispute
Three charges were brought against the respondent.
Charge 1 was: The Respondent failed to provide clear and timely advice to assist his client to understand relevant legal issues and to make informed choices about action to be taken in breach of Rule 7.1 by failing to provide further advice to his client between 6 February 2018 and 21 January 2021 regarding the need to attend a compulsory conference and to commence proceedings before the limitation period expired on 21 January 2021.
The respondent admitted to the facts alleged in Charge 1, accepted that that conduct amounted to unsatisfactory professional conduct, but denied it amounted to professional misconduct.
Charge 2 was: The Respondent deliberately misled his client on 15 September 2021 as to the status of the negotiations with MinterEllison, namely that: (a) he had spoken with the insurer or their legal representative on 15 September 2021; and/or (b) the offer of $39,000 was open for acceptance, in breach of Rule 4.1.2 and/or Rule 5.1.
The respondent disputed some of the facts alleged in Charge 2, and denied he deliberately mislead or lied to his client in the telephone call of 15 September 2021.
He admitted that he failed to correct Mr Oreskovic’s misunderstanding of their conversation (if the respondent’s version of the conversation was correct), admitted that that failure was unprofessional conduct, but denied it amounted to professional misconduct.
Charge 3 was: The Respondent breached Rule 4.1.3 by failing to progress his client's claim diligently and as promptly as reasonably possible during the periods 22 March 2019 - 4 December 2019, 4 November 2020 - 15 September 2021, 9 November 2021 - 1 September 2022, and 1 September 2022 - 28 October 2022.
The respondent admitted to the facts alleged in Charge 3, accepted that that conduct amounted to unsatisfactory professional conduct, but denied it amounted to professional misconduct.
Approach to factfinding
Both parties accepted that the relevant standard of proof to apply was that referred to in Briginshaw v Briginshaw [1938] HCA 34 (Briginshaw). That standard of 1 proof is now enshrined in section 140(2) of the Evidence Act 2011.
In terms of fact finding, I have applied the principles set out in Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315, in which the following was said: [651] In making my findings of fact and assessing credit, I bear in mind the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses when giving their oral evidence. I will, as far as possible, reason to my conclusions on the basis of contemporary materials, objective facts, and the inherent probability of events: see Fox v Percy [2003] HCA 22; 214 CLR 118 at 128129 (Fox v Percy), [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. [652] I also bear in mind McLelland CJ in Eq’s oft-quoted passage about the fallibility of human memory set out in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman), wherein his Honour said at 319: Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
1 Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 per Sackville AJA at [99] (Ward and Gleeson JJA agreeing) [653] The fallibility of human memory, and other difficulties with fact finding, were further examined by Justice David Ipp, writing extra-judicially, in ‘Problems with fact finding’ (2006) 80 Australian Law Journal 667 (‘Problems with fact finding’) at 667, and by Justice Peter McClellan, also writing extra-judicially, in ‘Who is telling the truth? Psychology, common sense and the law’ (2006) 80 Australian Law Journal 655 (‘Who is telling the truth?’) at 663-665. [654] Further comment on the fallibility of human memory is found in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]–[23], in which Leggatt J observed that there are a number of difficulties with oral evidence based on recollection of events. Leggatt J said that considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. As Lee J summarised his Lordship’s judgment in Webb v GetSwift Limited (No 5) [2019] FCA 1533 at [18]: As his Lordship noted, a witness is asked to make a statement, often when considerable time has already elapsed since the relevant events. The statement is usually drafted by a solicitor who is inevitably conscious of the significance for the case of what the witness does or does not say. The statement is often made after the memory of the witness has been “refreshed” by reading documents. The documents considered can often include argumentative material as well as documents that the witness did not see at the time and which came into existence after the events which the witness is being asked to recall. It may go through several iterations before it is finished. As Lord Buckmaster famously said, the truth “may sometimes leak out from an affidavit, like water from the bottom of a well”. This may be overly cynical, but the surest guide for deciding the case will be as identified by Leggatt J at [22]: … the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. [655] Leggatt J’s statement may be a helpful working hypothesis, but it is not a rule to be slavishly applied. At its base, it reflects what was said in Fox v Percy together with the recognition of the fallibility of human memory, and how, no matter the honesty of the witness, memory may be affected by the passage of time, self-interest, motivation, suggestion and other factors.
Factual conclusions
I accept the uncontested facts.
The only significant factual dispute was as to the content of the conversation had between the respondent and Mr Oreskovic on 15 September 2021, witnessed by Mr Oreskovic’s partner and mother.
The immediate context of that conversation was that the limitation period had expired on 21 January 2021, some eight months earlier.
The last communication from the respondent to Mr Oreskovic had been the respondent’s email of 28 October 2020 in which he advised Mr Oreskovic that the respondent had told MinterEllison that Mr Oreskovic remained willing to have an informal settlement conference but not a compulsory conference, that the respondent would keep him informed, and that Mr Oreskovic may have to be prepared for $39,000 to be MinterEllison’s final offer.
The offer of $39,000 plus costs referred to had been made by MinterEllison on 25 August 2020, and expressly rejected by the respondent on 26 August 2020, a little over 12 months before the conversation of 15 September 2021.
Mr Oreskovic’s version of the conversation is corroborated, in significant parts, by the email he sent to the respondent later that day, and by the recollections of his partner and mother.
The email included the statements that “you have advised that the offer has come back at $39,000 in the hand” and “[a]re you able to please also confirm that the offer will stand until I get confirmation of all of the above”. Those two statements are corroborative of Mr Oreskovic’s recollection that the respondent had told him that it was the insurer which had made an offer, as distinct from the respondent’s two versions: that he could put such an offer to the insurer on Mr Oreskovic’s behalf if so instructed; or that he could attempt to revive the OND’s earlier offer.
Ms Tunks-Eccles corroborated Mr Oreskovic’s version that the respondent had said that the insurer had offered $39,000, that the offer had to be accepted by 5:00pm that day and that if Mr Oreskovic went to court he could lose everything.
Ms Nicole Oreskovic corroborated the other two witnesses’ evidence that the respondent had said that the insurer had made an offer of $39,000, and that (in substance) Mr Oreskovic had a very short time to accept or reject it.
Mr Oreskovic’s email of 15 September 2021, and the evidence of his partner and mother, each separately corroborate Mr Oreskovic’s evidence that the respondent said there was an offer on the table from the insurer for $39,000, and that Mr Oreskovic had a very short time in which to accept it. Whether that short time was 5:00pm that afternoon, or 24 or 48 hours, seems to me to make little difference. The gist of the representation was that the offer was only open for acceptance for a very short time.
The time for acceptance part of the conversation was not part of Charge 2, but it was a fact corroborative of the representation alleged to have been made that there was an offer open for acceptance.
Mr Oreskovic’s subsequent actions on 15 September are also corroborative of his recollection that he was told there was an offer on the table. Between 4:57pm and 5:58pm on 15 September 2021, the respondent and Mr Oreskovic exchanged emails in relation to the legal costs and deductions for medical bills, and at 6:11pm that day, Mr Oreskovic sent the respondent an email instructing him to settle for $39,000.
Those actions are more consistent with Mr Oreskovic’s recollection of the conversation than that of the respondent.
There is no corroboration of any sort for Mr Oreskovic’s recollection that the respondent had said that he, the respondent, had (i.e. in the past) spoken to the insurer. Indeed, in cross-examination Mr Oreskovic gave conflicting evidence in that he said that the respondent had said that “he will (i.e. in the future) contact the insurer”.
In terms of accuracy of recollection, the respondent submitted that in the witness statement Mr Oreskovic provided to the Council, and his affidavit, he used the expression “I cannot recall exactly” (or similar expression). But to me, that expression was an indicator of honesty. It may have reflected slightly on the accuracy of his recollection, but no more than could be expected given the effluxion of time.
The respondent also submitted that the lay witnesses may have misunderstood the conversation. I do not accept that submission. Mr Oreskovic’s understanding was the same as two other witnesses. Whilst it would not be surprising if one witness misunderstood what someone else said, it is unlikely that three witnesses would independently arrive at a similar misunderstanding.
All three lay witnesses impressed me as being intelligent, common sensical types of people, not prone to misunderstanding simple language, and I do not accept they misunderstood what was said by the respondent.
The version of the conversation given by Mr Oreskovic, and the two given by the respondent, were reasonably distinct. On the one hand (Mr Oreskovic’s version), the respondent was saying the other side had come back with an offer which was open for acceptance. The respondent’s versions were that the respondent would put an offer on behalf of Mr Oreskovic (per the response), or would seek to revive the other side’s previous offer (per the affidavit). Although there are common elements, the versions are reasonably distinct. Accordingly, that is further reason to conclude the lay witnesses did not misunderstand what was said.
Turning to the respondent’s case, there is no corroboration for either of the respondent’s versions of events. The two versions advanced by the respondent are not consistent with each other, and both are contrary to the contemporaneous material. Either version is inherently improbable, given the respondent’s conduct after November 2020 in never discussing with Mr Oreskovic the limitation period, its approach, and its passing.
Keeping in mind the dangers inherent in recollection evidence mentioned in Fox v Percy [2003] HCA 22 and Watson v Foxman (1995) 49 NSWLR 315, I was nevertheless impressed by the demeanour and candour of Mr Oreskovic, his partner and mother. They answered questions directly and without evasion and made concessions where appropriate. The differences between their recollections are what one would expect after a passage of time, and they all denied discussing the terms of the conversation (as opposed to the fact of the conversation) with each other at any time afterward. They were tested in cross-examination but did not waver from their written evidence. When asked about matters not in their written evidence, and in answer to which they could have embellished their evidence to favour Mr Oreskovic with little fear of contradiction, they did not do so. When they could not recall certain events, they said so, rather than purporting to remember everything.
However, I was not impressed by the respondent’s demeanour. More than once he did not answer questions directly and was somewhat evasive. For example, when asked whether he considered telling Mr Oreskovic on 15 September 2021 that the limitation period had expired, he answered by saying that he was at home, he didn’t have access to his full file and he thought he could still resolve the matter. When pressed for a direct response, he then answered that he didn’t believe that he had considered it. When I then asked him whether he thought his client was entitled to know that the limitation period had expired, he first answered “in retrospect, yes”. When asked why he did not do so on 15 September, he again said that he was at home, didn’t have access to his file and he “wasn’t fully informed in relation to the matter”. When asked what else he needed to know, he answered “nothing”.
He was then cross-examined about having opportunities after 15 September to inform Mr Oreskovic that his claim was statute barred. He agreed he had multiple opportunities but could offer no explanation for why he did not do so. I found his evidence of having no explanation less than satisfactory in the circumstances. Particularly so when he had had no response from MinterEllison to his emails of 15 and 22 September, and 9 November 2021.
Even after MinterEllison raised the limitation period in their email of 1 September 2022 and had expressed their view that Mr Oreskovic’s claim was statute barred, the respondent did not contact his client to inform him of that communication, nor the expiry of the limitation period more generally.
It must be said, in the respondent’s favour, that his attempts at evasion were not maintained for very long in cross-examination, and when pressed to provide direct answers he did so. During submissions I said to the respondent’s counsel that I did not find the respondent “evasive”, but having re-read the transcript that statement was not entirely accurate, and I have given examples where that was so.
Although the absence of a file note is not proof to the contrary, the absence of corroboration of the respondent’s version is telling, particularly when one keeps in mind the observations of McLellan CJ in Eq quoted at [96] above.
It seems to me to be somewhat extraordinary that a solicitor of some decades experience in the personal injury field and having realised that he had missed a limitation period, did not even consider whether he should tell his client of the expiry of the limitation period. The failure to consider doing so not only reflects poorly on the respondent but is a significant fact relevant to characterisation of his conduct and fitness to practise.
The content of the respondent’s email to Mr Oreskovic at 5:04pm on 15 September is inconsistent with both of the respondent’s versions. In that email, he told Mr Oreskovic that he would “advise them that $39,000 plus costs is accepted”. That language directly contradicts the respondent’s versions of events.
The contents of the subsequent emails the respondent sent to MinterEllison are not consistent with the respondent’s version of the conversation set out in his affidavit. On 15 September, he emailed MinterEllison and said that he was instructed that Mr Oreskovic would accept $39,000 inclusive of repayments plus costs to resolve the claim. That was an offer being put by Mr Oreskovic and was not an attempt to seek a revival of an offer previously put by MinterEllison.
Seven days later, the respondent sent a follow-up email to MinterEllison seeking a response to the offer put. Again, nothing is said about reviving a previous MinterEllison offer.
In cross-examination, the respondent said that it occurred to him that the limitation period had expired on 15 September 2021 prompted by the conversation with Mr Oreskovic. Yet he did not say anything to Mr Oreskovic. Rather, he attempted to coax a settlement out of MinterEllison.
That attempt, in and of itself, is not open to criticism. It is the failure to fully inform Mr Oreskovic of the true circumstances at the time, and the making of those subsequent settlement attempts without having fully informed his client, which were not. That subsequent conduct is consistent with the respondent attempting to hide the fact that he had allowed the limitation period to expire and was inconsistent with seeking to revive a previous offer put by the OND.
The respondent accepted that he knew from Mr Oreskovic’s email of 15 September that, on the respondent’s version of events, Mr Oreskovic was under the incorrect impression that MinterEllison had “come back" with an offer of $39,000, and accepted that he did not correct that incorrect impression. That conduct is also consistent with the respondent attempting to hide the fact form his client that he had allowed the limitation period to expire.
By way of faint justification for not correcting this apparent misapprehension, the respondent said in his affidavit affirmed 27 June 2024 that: The complainant's email of 16:23 on 15 September 2021 did not accurately reflect our conversation and nor did I confirm same. I acknowledge that I should have taken the time to clarify same. I was using either my phone or Ipad to respond to the complainant and kept my response short.
The faint attempt at justification in the last sentence reflects poorly on the respondent’s credit in that it is patently no justification at all. He could easily have telephoned Mr Oreskovic, and even if he only had the devices mentioned, they were no restriction to communicating the relevant information by email. That is, it might have been a little laborious to do so, but it was far from impossible.
In addition, the respondent never mentioned the expiry of the limitation period thereafter, including the more than 14 following months in which he remained retained by Mr Oreskovic. Even when MinterEllison expressly mentioned their view that the claim was statute barred in September 2022, the respondent did not communicate that fact to Mr Oreskovic. Conclusion
It seems to me to be more probable than not to the Briginshaw standard that the respondent overlooked or forgot the limitation period applying to Mr Oreskovic’s case between November 2020 and 15 September 2021. He realised that error on 15 September 2021.
I do not accept that the respondent said to Mr Oreskovic that he, the respondent had spoken to the insurer, but I am comfortably satisfied to the Briginshaw standard that the respondent did say to Mr Oreskovic words to the effect that there was an offer on the table from the insurer for $39,000 and that Mr Oreskovic had a very short time to accept it.
I do not accept either of the respondent’s versions of that conversation. They are unsupported by any contemporary materials or objective facts, are inconsistent with the contemporary materials and the inherent probabilities.
I am satisfied to the relevant standard that the respondent made a deliberate decision not to tell Mr Oreskovic that the limitation period had expired on and after 15 September 2021 because he hoped he could coax a settlement out of MinterEllison and thereby escape criticism. That is consistent with him not correcting (on the respondent’s versions) Mr Oreskovic’s misapprehension that MinterEllison had put the offer, is consistent with the respondent not informing Mr Oreskovic of the expiry of the limitation period at any time after 15 September, and consistent with the respondent not communicating the contents of MinterEllison’s email of 1 September 2022 to Mr Oreskovic.
The respondent submitted that this attempt at a cover-up, as it were, was an unlikely scenario because any reasonable person in the respondent’s position would have considered it most unlikely that the OND would have entertained any settlement. Whilst I agree the odds were long, I do not find them to be so overwhelming as to overcome the weight to be given to the other matters I which have referred to. History is replete with examples of people grasping at straws.
It follows from what I have said that Charge 2 was proved other than for the allegation that the respondent told Mr Oreskovic that he, the respondent, had spoken to the insurer. All references to Charge 2 below should be read with that qualification in mind.
Characterisation The authorities
In Bechara v Legal Services Commissioner [2010] NSWCA 369, McClellan CJ at CL, with whom McColl and Young JJA agreed, said at [44]: As Clyne made plain, there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside “generally accepted standard[s] of common decency and common fairness”. Previous examples of professional misconduct have included … misleading a client … (and) gross neglect and delay …
In Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563, Rich J said at 563: A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or the public.
That passage was quoted with approval in Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 per Basten JA, with whom Mason P and Santow JA agreed, at [53], amongst other cases.
I shall now discuss the charges, commencing with Charge 2, as it is the most serious charge.
Charge 2
The Council submitted I should characterise the conduct of the three charges globally rather than separately. There is some force in that submission in relation to Charges 1 and 3, but I think I should say something about Charge 2 separately because it substantially involved a discreet series of events and, unlike the other charges, involved allegations of dishonesty.
In my view, the conduct the subject of Charge 2 could be nothing other than professional misconduct as defined in section 387 of the LPA.
The conduct the subject of Charge 2 involved both active and passive dishonesty towards Mr Oreskovic. Active dishonesty in saying things to Mr Oreskovic the respondent knew to be untrue. Passive dishonesty in failing to correct an obvious misapprehension as to the true facts held by Mr Oreskovic and thereby sitting passively knowing the client was proceeding on the misapprehension that there was an offer of $39,000 open for acceptance.
Self-evidently, both forms of dishonesty toward Mr Oreskovic were a breach of rules 4.1.2 and 5.1 of the Rules. They were also, in my view, a breach of the respondent’s common law duty to treat clients fairly and in good faith.
The respondent knowingly and falsely communicated to his client that MinterEllison (or their client) had put an offer which was open for acceptance.
When the respondent subsequently received Mr Oreskovic’s email of 15 September 2021, which he acknowledged conveyed Mr Oreskovic’s impression that MinterEllison had put an offer which was open for acceptance, he deliberately did not contact his client to correct that incorrect impression.
The respondent engaged in that conduct in an attempt to cover up the fact that he had allowed the limitation period to expire without taking steps to advise Mr Oreskovic and to preserve Mr Oreskovic’s rights if so instructed (such as organising a compulsory conference and then commencing proceedings if the matter didn’t settle at that conference) or at least advising Mr Oreskovic of all of those matters so that Mr Oreskovic could make a fully informed choice whether to attend a compulsory conference and commence proceedings.
The fact that the respondent did not advise Mr Oreskovic of the fact of the expiry of the limitation period at any time thereafter is also telling.
Charges 1 and 3
I think it is appropriate to consider the characterisation of Charges 1 and 3 together as they address different but overlapping conduct arising from a single course of events involving much the same subject matter. The respondent did not take issue with this approach.
The respondent had been acting for Mr Oreskovic from three days after his accident. He undertook several necessary steps to progress Mr Oreskovic’s claim, all the time knowing the limitation period would expire on 21 January 2021.
The last contact with Mr Oreskovic before the expiration of the limitation period was October 2020, and the last contact with MinterEllison was November 2020. In that contact, MinterEllison asked the respondent to obtain a reasonable settlement offer within 14 days, and that MinterEllison would seek a compulsory conference.
At this critical point, with the expiration of the limitation period fast approaching, the respondent did nothing.
He continued to do nothing until contacted by Mr Oreskovic a little less than one year later in September 2021. He did not correct Mr Oreskovic’s misapprehension that there was an offer from the OND that was open for acceptance, evident from his 15 September email.
He did not inform Mr Oreskovic of MinterEllison’s email of 1 September 2022 which rejected Mr Oreskovic’s offer of 15 September 2021.
When Mr Oreskovic emailed him asking for closing details on 28 October 2022 the respondent did not reply.
Of course, the most critical point in terms of diligently progressing the claim and delay was in November 2020–January 2021, in not advising Mr Oreskovic of the upcoming expiration of the limitation period, and not advising him about and seeking instructions in relation to a compulsory conference and commencing proceedings. But the respondent also failed to give the advice mentioned in Charge 1 in all of the periods specified in the Charge, and failed to progress his client’s claim competently and diligently in all of the periods specified in Charge 3.
In my view, the conduct the subject of Charges 1 and 3 is conduct that fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner. That is, it fell within the statutory definition of unsatisfactory professional conduct set out in section 386 of the LPA.
But it went further than that. That unsatisfactory professional conduct involved a substantial failure to reach or maintain a reasonable standard of competence and diligence.
The respondent was aware of the limitation date; he did nothing in the critical few months prior to the expiration of that date; did not remind his client of that approaching date and its potential consequences; and did not act on or respond to MinterEllison’s request on 4 November 2020 to obtain another settlement offer and, more importantly, to advise them of the respondent’s and Mr Oreskovic’s availability to participate in a compulsory conference.
After that point, the respondent did nothing other than what occurred on 15 September 2021 and the few subsequent emails.
I note that at one point the respondent said that shortly after 15 September he had the (ultimately mistaken) view that time did not expire on 21 January 2021. But even if he did hold that view, about which I have much doubt, he did nothing at the time consistent with holding that view and progressing Mr Oreskovic’s claim.
In my view, the respondent’s failings in relation to Charges 1 and 3 were so substantial as to amount to professional misconduct.
Conclusion
Charges 1, 2 and 3 have been proved.
The conduct in relation to each of those Charges amounted to professional misconduct.
Orders
Neither the LPA nor the ACT Civil and Administrative Tribunal Act 2008 provide for the making of declarations that a practitioner is guilty of professional misconduct or unsatisfactory professional conduct. I will, therefore, simply make directions in relation to the penalty hearing and costs.
I make the following orders: (a) The application is split and is to be determined in two parts: breach and characterisation (stage 1) followed by penalty (stage 2) if required. (b) Stage 1 is to be determined before me. (c) Paragraph 2B of the Response dated 26 February 2024 signed by the respondent is amended by substituting the number 58 for the number 57 where it appears in that paragraph. (d) The applicant is to file and serve any evidence on penalty and costs by 10 March 2025. (e) The respondent is to file and serve any evidence on penalty and costs by 31 March 2025. (f) The applicant is to file and serve any evidence on penalty and costs in reply by 14 April 2025. (g) The parties are to provide their mutually available dates to the Tribunal for a one-day hearing on penalty and costs by 10 March 2025.
……………………………….. Acting Presidential Member G Curtin SC
Date(s) of hearing: 8 and 12 November 2024 Counsel for the Applicant: Mr D Moujalli Solicitors for the Applicant: Thomson Geer Counsel for the Respondent: Mr W Sharwood
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
LP 012024 (Angus Bucknell) (Occupational Discipline)
[1938] HCA 34
[2003] HCA 22
(1995) 49 NSWLR 315