Legal practitioners - Disciplinary proceedings - Undue delay - Whether necessary for Tribunal to state standard of proof it applied in coming to its decision - Whether Tribunal's approach in looking at discrete periods of delay correct

Chambers v Jobling (1986) 7 NSWLR 1

Dalleagles Pty Ltd v Australian Securities Commission (1991) 4 WAR 325

Re Moseley (1925) 25 SR (NSW) 174

Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 479

State Rail Authority (NSW) v Earthline Construction Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306

Sun Alliance Insurance Co v Massoud [1989] VicRp 2; [1989] VR 8

1 JUDGMENT OF THE COURT: The appellant appeals against a decision of the Legal Practitioners Disciplinary Tribunal pursuant to which he was found guilty of undue delay in the course of the practice of the law and fined the sum of $2500.

2 The relevant reference to the Tribunal was as follows:

"1. That the practitioner ... was guilty of undue delay in the course of the practice of the law during one or more of the following periods:

(a) between 26 June 1992 and 11 February 1993 or thereabouts

(b) between 22 April 1993 and 14 November 1993 or thereabouts

(c) between 16 November 1993 and 4 May 1994 or thereabouts

(d) between 19 June 1994 and 10 October 1995 or thereabouts

in considering and advising on a claim for personal injuries on behalf of his client Mr Rappoff ('the client') as particularised in paragraphs 7, 11, 15 and 21 below, and

(e) between 11 October 1995 and 17 January 1996 or thereabouts,

in returning the client's file to him, as particularised in par 25 below ...."

3 At the hearing of this appeal the appellant, amongst other things, sought to upset certain findings of fact which had been made by the Tribunal. The parties agreed that the law as stated in Walsh v Law Society of New South Wales [1999] HCA 33 (5 August 1999) in par 54 applied to that aspect of the appeal. In that paragraph, McHugh, Kirby and Callinan JJ said:

"In either case the appellate court will be bound generally to defer to any conclusions on the questions of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses. In particular circumstances it will be open to an appellate court to reach conclusions contrary to those of the court or tribunal below, notwithstanding a credibility finding. Sometimes it will be authorised to reject those findings where they are 'glaringly improbable' or 'contrary to compelling influences' of the case. But the caution required of all appellate courts in such matters has long been recognised and frequently upheld in decisions of this Court."

4 It was also agreed that O 65 of Rules of the Supreme Court 1935 (WA) applies to this appeal and that it is in the nature of a rehearing. Reference was made to D'Alessandro v Legal Committee (1955) 15 WAR 198 at 205 and Bradshaw v Medical Board of WA (1990) 3 WAR 322.

5 The first complaint on behalf of the appellant was that the Tribunal did not state which standard of proof it had applied when coming to its decision. It was submitted that the standard of proof may alter according to certain criteria, including inter alia, the seriousness of an allegation, the inherent likelihood of an event and the gravity of the consequences - Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. The appellant claimed that he had been entitled to a clear indication of the standard of proof from the Tribunal as in this case the matters considered by the Tribunal were serious and likely to lead to grave consequences. Reliance was placed on the reasons for decision in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 256 -261 and 227 - 281. .

6 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170, Mason CJ, Brennan, Deane and Gaudron JJ said:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains even so where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found.' Statements to that effect should not however be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

"When a issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worse misleading ... The most that can validly be said in such a case is that the trial Judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately however, it remains incumbent upon the trial Judge to determine the issue by reference to the balance of probabilities."

"The judgment contains no express reference to any requirement of clear, cogent or strict proof. However in a context where the issue in the case had effectively resolved itself into which of Karajan ... and Neat Holdings ... had been guilty of deliberate falsification of its records of takings, the omission of any such reference neither involves nor indicates error on his Honour's part. To the contrary, in the particular circumstances of the present case and for the reasons which we have given, any such reference would have been unhelpful."

9 In our view those reasons of the Justices of the High Court reveal that it is not necessary for a court to always state the standard of proof which it is applying. Further, it should be noted that the Tribunal in this case is a specialist Tribunal, chaired by a former Supreme Court Judge and constituted by lawyers dealing with lawyers. It would be unlikely that this Tribunal would not have appreciated the seriousness of the issues and the care which it should take when reaching its findings.

10 In our view the proposition that the Tribunal had fallen into error by not stating the standard of proof which it had applied in coming to its findings should not be sustained.

11 The next complaint concerned the way in which the reference which is set out above, had been formulated. Allied with that was a complaint as to the way in which it had been sought to prove the complaint.

12 It was noted that the undue delay alleged against the appellant had been divided into five periods between 26 June 1992 and 17 January 1996. Those periods had been separated by periods of activity which were not alleged to have given rise to any allegations of undue delay. The period in which the four instances of undue delay were said to have occurred extends over four years. The appellant had commenced to act for the client in early February 1992. The first period in which undue delay was said to have occurred commenced half-way through that first year on 26 June 1992.

13 The appellant complained that in concentrating on the discrete periods of alleged inactivity, the Tribunal had not paid sufficient regard to the intervening periods of activity and that this process had permeated and invalidated the result. It was said that the periods of activity could be regarded as bookends. The periods of alleged inactivity had been the times in between. It was submitted that this was a wrong way to approach an allegation of undue delay against a practitioner.

14 As a general statement, that in our view has considerable merit because there was only one charge of undue delay. The charge was that during the period in which the appellant had acted for the client, he had been guilty of undue delay. The framing of the reference in the way it was framed could alter the focus by selecting certain periods and concentrating on what the practitioner had done within those periods. It is the whole period of activity which should regarded.

15 It is true that the Tribunal examined each of the periods in which it was alleged, in the complaint, that the appellant had been guilty of undue delay. In relation to three of the periods (leaving to one side the period of October 1995 to January 1996) the Tribunal found "the delay made out". We take this to mean that the Tribunal took the view that in each of those periods the delay would have justified the complaint. However, this does not mean that the Tribunal failed to appreciate that it was dealing with one charge of delay covering the entire period. In the reasons (AB 19C) the Tribunal said:

"What all this amounts to is this file from an early stage, 26 June 1992, was subject to undue delay except for an occasional spurt of activity, but those spurts were not sufficient or lasting to avoid an adverse conclusion against [the appellant]."

16 Accordingly, we do not think the Tribunal erred in its approach. But even paying full regard to the "book ends" argument, we think on a fair reading of all the evidence, the conclusion that the appellant was guilty of undue delay is clearly open. Our reasons for that conclusion are set out below.

17 It is apparent from a reading of the transcript of the hearing, that the appellant had maintained that for most of the period during which he had been acting for the client, he had been advising him on medical questions rather than acting for him as a lawyer. The appellant further repeatedly claimed, in answer to questions during the hearing, that the client would not accept the advice he had been giving him, which was that the appellant could not see that the client had any claim against the medical practitioner who had given him certain treatment for an eye condition.

18 The appellant said that he had very early on told his client that he could not see how the client could sustain a claim against the medical practitioner. He said that the client would not accept that advice and had kept coming back at him. That may be correct, but on an objective view of what occurred during the relevant period, it is clear that the appellant had continued to act for the client, even if reluctantly. However, there were long periods of time during which the appellant did nothing to advance the client's interests.

19 It was also submitted for the appellant that from early on the overwhelming weight of medical evidence had been to the effect that the client's blindness had resulted from a pre-existing disease, which was referred to at the hearing as "PXE", and not from any treatment of the disease by the doctor. In such circumstances it was said, it must follow that it had been inappropriate for the appellant to prosecute a claim for negligence on behalf of the client and that when considering the complaint of undue delay, the question should have been asked: "What step or steps should a reasonable practitioner have taken in such circumstances?" It was said that a review of what had been done over the entirety of the retainer raised a compelling inference in favour of the appellant.

20 That proposition in our view does not take account of the fact that whilst accepting that the appellant should not have continued to prosecute the client's claim based on the alleged negligence of the medical practitioner, the overwhelming evidence was that the appellant had continued to act for the client in a sporadic manner. The evidence established that the appellant at the client's insistence, had continued to act for him. It was during the period that he was so acting that for long periods of time he did nothing substantial in connection with the alleged claim.

21 It was submitted for the appellant that in the middle of 1994 he had told the client to take his business to another lawyer. His counsel asked: "What step or steps should a reasonable practitioner have taken in such circumstances?" The answer is that the practitioner should have either severed his professional relationship with his client or continued to prosecute the client's interests in a diligent manner.

22 The Tribunal found that in a letter of 18 June 1994, the client had advised the appellant that he preferred the appellant to continue with the case. No reply to that letter had been made by the appellant.

"All that seems to have happened during the fourth period [19 June 1994 to 10 October 1995] was the practitioner's letter of 11 January 1995 advising of the dissolution of Hoffmans and a recognition that he was bound by the terms of the retainer previously entered into with the practitioner. The client, by letter dated 23 January 1995 reaffirmed his desire for the practitioner to continue with the case. So it was that on 11 October 1995 the client wrote to the practitioner complaining that after 21 months of the practitioner refusing to see him and maintaining silence with the exception of letters of 5 May 1994 and 11 January 1995 and that appearing that the practitioner had not been interested in the case for a long time and that he was not going to do anything about bringing the case to a final resolution, he sought of the practitioner that his file be returned so that he could find another solicitor. During this fourth period the retainer originally taken was still in force and the practitioner did nothing towards carrying out his obligations to the client. The complaint of undue delay occurring during this fourth period has been made out." [Our words in brackets]

24 That finding was correct due to the inactivity of the practitioner in the period concerned.

25 Counsel for the appellant contended that it was unfair to hold a practitioner to a contract to act for a client when he had told his client to go somewhere else. However, that was not what the Tribunal did. The client had informed the appellant that he preferred him to continue to act in the matter. There had been no reply from the appellant except a letter advising the client of the dissolution of Hoffmans "and a recognition that he was bound by the terms of the retainer previously entered into with the practitioner." The client had then by letter dated 23 January, reaffirmed his desire for the practitioner to continue with the case. There had been no firm action by the appellant to either sever the relationship or to prosecute the client's interests diligently.

26 It was further contended that the client had told the appellant that he did not mind waiting until the appellant had time to tend to the matter. That, in our view, is not a sufficient answer to the charge, when, leaving aside the other periods of inactivity, nothing substantial was done by the appellant for the client during the period 19 June 1994 to 10 October 1995. It is relevant in this regard that there was the letter dated 11 January 1995 from the appellant to the client which, amongst other things said:

"Naturally I continue to act for you until you instruct me to transfer your file to another solicitor ... I consider myself bound by the terms of any retainer or agreement entered into by you with Hoffmans before the dissolution of the partnership."

27 The client had replied to the appellant on 23 January 1995 saying amongst other things:

"As I have previously explained in my letter dated 18 June 1994 I still wish you to proceed with my case."

28 When the appellant was questioned before the Tribunal concerning this response of the client, he said:

"I knew that all along but I had already told him that I did not want to proceed and that terminated the relationship in my submission. That's the way I felt about it."

29 Unfortunately, that answer by the appellant was typical of the attitude which he displayed during the hearing before the Tribunal when he was questioned concerning matters which did not appear to be in his favour. He did not seem to appreciate his responsibilities as a legal practitioner when acting for a client. We will say no more about that.

30 During the hearing before this Court, a point was made that at approximately one week after the laser treatment had concluded, the appellant's sight was no worse than it had been at the time of the treatment. There had also been a report from Dr Quinlan which had apparently advised that the appellant's vision had deteriorated between 8 and 22 October 1990, approximately a month after the laser treatment. In view of these things, it was submitted for the appellant that it was obvious that together with Dr Heenan's opinion, those facts had indicated that the appellant had no claim.

31 The answer is that the professional relationship was not terminated when the appellant became convinced that there was no claim to pursue. That is apparent from the actions and correspondence of both the appellant and the client. It can be conceded that there was no good evidence that the client's blindness had resulted from the laser treatment and that the only evidence available to the appellant had indicated that the client's blindness had not resulted from any aspect of the laser procedure. But that does not excuse the delay alleged against the appellant.

32 The result is that the appellant's submissions that no findings of delay should have been made is contrary to the undisputed evidence which was before the Tribunal. It is not a defence that the delay may have been caused by a failure on behalf of the appellant to appreciate what he was required to do.

33 Another complaint was that the Tribunal had erred in its approach concerning the second alleged period of undue delay between 22 April 1993 and 14 November 1993, when the Tribunal said:

"If this period had been the only period complained of, the Tribunal would have been reluctant to find on the evidence, undue delay. However it is not the only period, for there is a period complained of before this and two periods subsequent. We have already concluded that the complaint is made out in relation to the first period and as will appear shortly, we also agree that the complaint has been made out in all subsequent periods. What all this amounts to is, that this file from an early stage, 26 June 1992 was subject to undue delay except for an occasional spurt of activity, but those spurts were not sufficient or lasting to avoid an adverse conclusion against the practitioner."

34 It was contended for the appellant that by saying that if that had been the only period complained of, "it would have been reluctant to find on the evidence undue delay", it appeared that the Tribunal had engaged in what amounted to the application of similar fact evidence.

35 Even if it is conceded that that was a wrong way to approach the matter, the other delays were sufficient to sustain the charge. There were adequate reasons given by the Tribunal for its findings in respect of the other periods where it was alleged that there had not been sufficient attention to the matter by the appellant.

36 It was further asserted that the Tribunal did not reach a finding as to what step or steps the practitioner had unduly delayed in taking. The answer to that is that the Tribunal found that the practitioner had taken no action for long periods of time when he should have been either working in the client's interests or making it clear to the client that he was no longer acting in the matter. The appellant did neither of those things.

37 The contention of the appellant that because he had advised the client in lengthy interviews on 12 February 1993 and 15 November 1993 and later in writing on 5 May 1994, he therefore could not be found guilty of delay, does not answer the contentions that there had been lengthy periods when he had not done sufficient in the client's interests. The same can be said concerning the telephone conversations in May 1992 and July 1992 when certain advice was given to the client.

38 There are numerous detailed particulars of the grounds of appeal, some of which have not been dealt with above. However, none of them invalidate the finding of the Tribunal that for long periods of time the appellant had not taken the steps which were required of a legal practitioner and that the appellant was therefore guilty of undue delay.

39 Concerning ground 11 of the grounds of appeal which contends that the appellant had not been guilty of delay in returning the client's file to him because this had been caused by a delay in the practice which was not directly attributable to the appellant, the answer to that is that it was the appellant's duty to see that the file was returned to the client within a reasonable time. The Tribunal's finding in that regard was that there had been no excuse for the delay. That means no "sufficient" excuse. On the evidence that finding is correct.

40 In our view the grounds of appeal have not been established and the appeal should be dismissed.

41 It is not therefore necessary to deal with the notice of contention filed on behalf of the respondent which details further matters which the appellant allegedly should have attended to.