Legal Services Commissioner v Nguyen

NCAT Occupational|2019-05-03

Introduction

In this matter, the applicant moved upon an application filed 9 November 2018, which alleged that the respondent had engaged in professional misconduct, or in the alternative, that she had engaged in unsatisfactory professional conduct. The applicant sought orders that: (1) the respondent be reprimanded; (2) the respondent not be granted a practising certificate by the Law Society of New South Wales until she has complied with the Notice that was issued to her under s 371 of the Legal Profession Uniform Law (NSW) ("LPUL"); (3) the respondent should pay its costs, as agreed or assessed; and (4) such further or other orders as the Tribunal sees fit.
The applicant alleged that the respondent was guilty of professional misconduct or unsatisfactory professional conduct on the following grounds: 1. She failed to comply with the requirements of a Notice issued pursuant to s 371 of the LPUL dated 2 March 2018 ("the Notice"); and 2. She breached Rule 43.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 ("the Rules") by failing to respond to the requirement to provide information and documents in relation to her alleged misconduct.
The application provided particulars of each ground as follows:

Ground 1 1. On 10 August 2017, Ms Cardia Patterson on behalf of Mrs Amy De Cerbo lodged a complaint with the NSW office of the Legal Services Commission ("OLSC") about the conduct of solicitor Mai Anh Nguyen ("Ms Nguyen"). 2. The OLSC characterised the allegations about Ms Nguyen's conduct as: 2.1 Disciplinary matters within the meaning of s 270 of the LPUL - allegations 1 to 4. 2.2 A consumer matter within the meaning of s 269 LPUL - allegation 5. 3. On or about 14 September 2017 the OLSC wrote to Ms Nguyen informing her of the allegations about her conduct and providing Ms Nguyen with a copy of the complaint and related material. 4. On 15 November 2017, the OLSC wrote to Ms Nguyen: 4.1 Informing Ms Nguyen that it could not resolve allegation 5 as a consumer matter, and it would now investigate allegation 5 as a disciplinary matter. 4.2 Seeking information and documents from Ms Nguyen for the investigation of the disciplinary matters. 5. On 2 March 2018, the NSW Legal Services Commissioner ("the Commissioner") issued the Notice to Ms Nguyen under a letter dated 2 March 2018. Particulars 5.1 The Notice sought information relevant to the investigation of the disciplinary matters. 5.2 Ms Nguyen was required to comply with this Notice by providing information in the form of a statutory declaration by 6 April 2018. 6. On 9 March 2018, the Notice was personally served on Ms Nguyen. 7. Ms Nguyen did not comply with the Notice, and has not provided the information sought in the Notice. 8. No explanation has been provided by Ms Nguyen to the Commissioner for her failure to comply with the Notice.

Ground 2 9. The Commissioner repeats particulars 1 to 8. 10. Ms Nguyen is in breach of Rule 43.2 of the Rules by failing to comply with the Notice.

The Respondent did not file a Reply to the Application and she did not file and serve any evidence in these proceedings. She also failed to appear at the hearing of the application on 2 May 2019.
Paragraph 21 of the NCAT Occupational Division Guideline (Professional Disciplinary Matters), August 2017 ("The Guideline") provides as follows: What are the consequences if the respondent does not provide a Reply? 21. If the respondent fails to give a Reply to the Tribunal within 21 days or within such further time as the Tribunal may allow, on the hearing of the application, the respondent may not, without permission of the tribunal, lead evidence of any matter of which notice should have been given in a Reply. This includes an expert evidence relied on by the respondent.
Further, para 46 of the Guideline provides: If a party does not appear before the Tribunal without reasonable excuse at a … hearing, the Tribunal may make orders in that party's absence, including an order that the non-attending party pay the other party's costs.

The Evidence

The applicant relied upon the following evidence: 1. An affidavit of John McKenzie, who is the Legal Services Commissioner, affirmed on 7 November 2018 - Exhibit A; 2. An affidavit of John McKenzie affirmed 1 May 2019 - Exhibit B; 3. An affidavit of John Vitanza sworn 7 November 2018 - Exhibit C; 4. An affidavit of John Vitanza sworn 23 November 2018 - Exhibit D; and 5. A letter from the applicant to the respondent dated 15 January 2018 - Exhibit E.
We note that Mr Vitanza deposed that he personally served the respondent with copies of the Notice and the current application. We also note that under cover of the applicant's letter to the respondent dated 15 January 2018 (Exhibit E), the respondent was served with further copies of the applicant's letters dated 14 September 2017 and 15 November 2017.
Based upon this evidence, we are satisfied that the respondent was properly served with the application and the evidence that the applicant relies upon in these proceedings and that it is appropriate to proceed to determine the disciplinary application in her absence.
Based upon a consideration of all of the evidence, we are comfortably satisfied that all of the grounds of the application have been established.

Relevant Legislation

The LPUL applies to this matter and we have considered the respondent's conduct under that Act. The relevant provisions of the LPUL are: 270 Disciplinary matters A disciplinary matter is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct. 371 Requirements - complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to a lawyer or law practice, an investigator may, by notice served on the lawyer or a legal practitioner associate of the law practice (as the case requires), require the lawyer or associate to do any one or more of the following - (a) to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document); (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states); (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. (2) For the purpose of carrying out a complaint investigation in relation to a lawyer or law practice, the investigator may, on production of evidence of his or her appointment, require any person (other than the lawyer) who has or had control of documents relating to the subject matter of the complaint to give the investigator either or both of the following - (a) access to the documents relating to the affairs of the lawyer that the investigator reasonably requires; (b) information relating to the affairs of the lawyer that the investigator reasonably requires (verified by statutory declaration if the requirement so states). (3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Penalty: 50 penalty units. (4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance. (5) If a notice under subsection (1) is served on the lawyer or legal practitioner associate by the investigator personally, the investigator must produce evidence of his or her appointment for inspection at the time of service. Note: Section 466 contains provisions relating to compliance with this section. 466 Provisions relating to certain requirements under this Law (1) This section applies to a requirement under - … (d) section 371 to produce documents, provide information or otherwise assist in, or cooperate with, an investigation; or … (6) A failure of an Australian lawyer or Australian-registered foreign lawyer to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct. (7) A local regulatory authority may recommend to the designated local regulatory authority that an Australian practising certificate or an Australian registration certificate be suspended while a failure by the holder to comply with the requirement continues. 297 Professional misconduct (1) For the purposes of this Law,professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct - (a) conduct consisting of a contravention of this Law, whether or not - (i) the contravention is an offence or punishable by way of a pecuniary penalty order; or (ii) the person has been convicted of an offence in relation to the contravention; or (iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention; (b) conduct consisting of a contravention of the Uniform Rules; (c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention; … (h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules; …
Further, s 11 of the Legal Profession Uniform Law Application Act (NSW) 2015 provides, relevantly: 1 Designation of local authorities and tribunals (1) A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body. Note. See section 6 of the Legal Profession Uniform Law (NSW) for the definition of designated local regulatory authority.
Table 1 provides that the designated local regulatory authority for matters under Ch 5 of LPUL is the NSW Commissioner. While the note provides that s 405 (2) of the LPUL contemplates that the local regulatory authority (the NSW Commissioner) may delegate Chapter 5 functions to a professional association (the Bar Association or Law Society), no delegation occurred in this matter.
Rule 43.2 provides: 43 Dealing with the Regulatory Authority … 43.2 A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor's conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.
Schedule 5, cl 23 of the Civil and Administrative Tribunal Act 2013 (No. 2) (the CAT Act) provides: Costs consequent of adverse conduct findings (1) Despite section 60 of this Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. (2) The Tribunal may make orders requiring a respondent lawyer whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that: (a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the lawyer to co-operate with the Commissioner or a Council, or (b) the lawyer has contravened an order of the Tribunal made in the course of the proceedings concerned, or (c) there is some other reason warranting the making of an order in the particular circumstances. (3) The Tribunal may make orders requiring payment of a respondent lawyer's costs from the Public Purpose Fund (within the meaning of the Legal Profession Uniform Law Application Act 2014), but may do so only if satisfied that the lawyer did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subclause. (4) The Tribunal may make orders requiring a respondent lawyer in respect of whom proceedings are pending before the Tribunal to pay costs on an interlocutory or interim basis. (5) The Tribunal may make orders requiring a person to pay costs (including, as appropriate, the costs of the Commissioner, a Council, the complainant and the respondent lawyer against whom the complaint was made), if satisfied that: (a) the person, whether before or during the proceedings, failed to produce or delayed in producing any document required or requested to be produced, and (b) the failure or delay contributed to delay in commencing, conducting or concluding the proceedings in such a way as to warrant the making of the orders. (6) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). (7) An order for costs may specify the terms on which costs must be paid.

Professional Conduct or Unsatisfactory Professional Conduct?

The Tribunal is required to consider whether the respondent's conduct is properly characterised as professional misconduct or unsatisfactory professional conduct.
While the applicant submitted that the respondent's conduct should properly be categorised as professional misconduct, we must make our own judgment regarding this issue and the appropriate disciplinary orders that we should make.
Mr Matalani (for the applicant) argued that the consequences of the respondent's failures to reply to the application and to file any evidence in the proceedings are two-fold, namely: (1) The Tribunal will more readily accept the evidence filed by the applicant; and (2) Adverse inferences may be drawn in relation to matters that are within the respondent's personal knowledge. As noted by the Court of Appeal in NSW Bar Association v Meakes [2006] NSWCA 340 (at [70]): 70 In my opinion, the Tribunal also erred in declining to criticise the respondent's decision not to give sworn evidence at the hearing. It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this Court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table. In Coe, Meagher JA (at [21]), with the agreement of Priestley JA, repeated with approval the following observations made by the Tribunal in that case and which are apposite to the present case: In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.
Mr Matalani submitted that the Tribunal should draw an inference to the effect that the respondent has no reasonable excuse for her conduct and he noted that there is no evidence regarding her character.
In relation to ground 1, Mr Matalani submitted that the respondent's conduct satisfies the statutory definition of professional misconduct found in s 297 (1) of LPUL, as she failed to comply with the Notice within the required time (by 6 April 2018) or within the extended time (by 17 April 2018) and, in fact she has never complied with it. She also failed to provide any written response to any correspondence that the applicant sent to her.
Mr Matalani also argued that the respondent's overall conduct constitutes professional misconduct at common law as defined in the decision of Allinson v General Council for Medical Education and Registration [1894] 1 QB 750. He submitted that her conduct would be "…reasonably regarded as disgraceful and dishonourable by professional brethren of good repute and competency."
In relation to this issue, Mr Matalani relied upon the decision in Council of the Law Society of NSW v Autore [2019] NSWCATOD 55, in which this Tribunal made the following observations and findings (although in relation to the predecessor provisions to s 371 of LPUL): 44. This Tribunal and its predecessors have dealt with numerous matters involving breaches of s 152 of the Legal Profession Act 1987 and s 660 of the Legal Profession Act 2004. Notwithstanding those strict provisions, a breach without reasonable excuse, has been found to amount to professional misconduct. We do not consider that in this matter the Solicitor has satisfactorily demonstrated that he had a reasonable excuse not to comply with the Notices. 45. We consider that in each matter the Solicitor's conduct involves a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence in his failure to comply with each Notice. However, we do not consider his conduct would necessarily justify a finding that he is not a fit and proper person to engage in legal practice: per s 297 (1)(b). 46. Having said that, we consider that it is important that when a solicitor is the subject of a statutory requirement associated with his or her practice as a solicitor, that that obligation is complied with. Further, we consider failure by solicitors to comply with their statutory obligations means the Law Society's investigatory role in maintaining the professional standards of conduct is severely hampered. 47. Compliance with both Notices remains outstanding - some considerable time after their issue. The Solicitor, it seemed to us, remains adamant that he need not comply with the Notices. 48. For these reasons, we conclude that the Solicitor's conduct would be regarded as either disgraceful or dishonourable by professional colleagues of good repute and competency. 49. We have come to the view that the Solicitor's failure to comply with his obligations in each matter has been established and that this conduct amounts to professional misconduct in each matter: per Allinson. The Solicitor's explanations, such as they were, do not alter our conclusion.
In relation to ground 2, Mr Matalani argued that for the same reasons the respondent's conduct is properly characterised as professional misconduct, but that the conduct described in ground 2 is distinguishable from that described in ground 1 due to the extent of the failure to respond to the complaint and the application.
In relation to these issues, Mr Matalani relied upon the decision in Legal Services Commissioner v Miskell [2016] NSWCATOD 95 ("Miskell"), in which this Tribunal made the following relevant observations and findings: Ground 2 - the solicitor breached rule 43.2 of the Solicitors' Rules 2013 25. Rule 43.2 of the Solicitors Rule is as follows: A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor's conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter. 26. The Commissioner submitted that the Respondent's failure to comply with Solicitors' Rule 43.2 extended over a greater period of time than his failure to comply with the s 660 notice. The first request for information made by the Commissioner to the Respondent in relation to the complaint was on 24 March 2015. Further requests were made on 10 April 2015 and 21 May 2015 prior to the issue of the s 660 notice dated 5 June 2015. 27. The Commissioner drew attention to the decision of Smart J in Veghelyi v Council of the Law Society of New South Wales, unreported, Supreme Court 6 September 1989 in which his Honour said: It is important that solicitors respond promptly to the Society when it asks for a reply in response to complaints which have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often the reply should be delivered within a shorter period such as 7-10 days. 28. Ms Millar submitted that as the relevant ground in this matter is pleaded as a breach of Solicitors' Rule 43.2, the Respondent's failure to comply with that rule amounts to statutory professional misconduct either by s 498(1)(a) (there having been a breach of s 674) or by reason of 671 of the Act. In any event, the Respondent has accepted that his failure to comply with rule 43.2 amounts to professional misconduct.
Mr Matalani observed that in this matter, the applicant first requested information and documents from the respondent by letters dated 14 September 2017 (in relation to the costs dispute) and 15 November 2017 (regarding the disciplinary matters). Both letters were initially sent to the address of the respondent's law practice (as recorded by the Law Society of NSW), but these were re-sent to her at an alternative address in Canley Vale on 15 January 2018, after the original letters were returned to the applicant. The letter dated 15 November 2017 warned the respondent that a Notice would be issued and the Notice was issued on 2 March 2018. However, to date the respondent has not provided any written response or statutory declaration in compliance with the Notice.
We note that in Miskell, the parties filed an Instrument of Consent and the grounds of the application were in similar terms to those pleaded in the current application, although the respondent had replied to the Notice by the time of the hearing. The Tribunal was satisfied that each ground was established and that the conduct was properly characterised as professional misconduct.
While it is open to the Tribunal to find that the respondent's conduct constitutes unsatisfactory professional conduct, Mr Matalani argued that such a finding would not adequately reflect the seriousness of the conduct. He submitted that a significant aspect of the Tribunal's protective jurisdiction is deterrence and that a finding that the conduct constitutes professional misconduct is important in this regard.
However, the Tribunal's power is not punitive and he referred to the decision in The Legal Practitioners Complaints Committee v Lashanky [2007] WASC 211 at [19]: Proceedings of this kind are not instituted in order to punish the practitioner, but to protect the public and maintain proper standards in the legal profession. Since the object is to protect the public and the reputation of the legal profession, the consequences for the practitioner may be either more or less severe than they would be if the only object of the proceedings was one of punishment (see Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, Re A Barrister and Solicitor (1979) 40 FLR 1, Re Marraj (a Legal Practitioner) (1955) 15 WAR 12).
Mr Matalani argued that the Tribunal's power to issue a reprimand arises under s 302 (1) of LPUL, which empowers it to make any orders under s 299 of LPUL. The purpose of a reprimand is to publicly censure the relevant conduct, so as to not only deter the respondent lawyer but also other lawyers who may be tempted to engage in similar conduct, in order to publicly mark the high standards of conduct that members of the legal profession are required to adhere to.
He also argued that s 302 (1) (i) of LPUL, which provides that the Tribunal "may make any order it thinks fit, including… any one or more of the following… (i) an order directing that an Australian Practising Certificate not be granted to the lawyer before the end of the specified period", empowers the Tribunal to make an order that the respondent should not be granted a practising certificate by the Law Society of New South Wales until she has complied with the Notice. He confirmed that the respondent has not held a practising certificate since 1 July 2018.
Finally, Mr Matalani sought an order for costs pursuant to sch 5 cl 23 (1) of the CAT Act, on the basis that the Tribunal should make adverse findings against the respondent and there is no evidence of any circumstances that could properly be considered as "exceptional", which would justify a decision not to make a costs order.

Consideration

In relation to ground 1, we note that this Tribunal and its predecessors have dealt with numerous matters involving breaches of s 152 of the Legal Profession Act 1987 and s 660 of the Legal Profession Act 2004, which are the predecessors to s 371 of LPUL. Notwithstanding those strict provisions, a breach without reasonable excuse has been found to amount to professional misconduct and, in this matter the respondent has failed to respond at all.
We are satisfied that the respondent's conduct in failing to respond to the Notice involves a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence and that it is properly characterised as professional misconduct pursuant to s 297 (1) of LPUL.
In relation to ground 2, we are satisfied that the respondent's conduct in breaching Rule 43.2 of The Rules also involves a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence and that it is properly characterised as professional misconduct pursuant to s 297 (1) of LPUL.
The applicant also argued that the respondent's conduct would also be regarded as disgraceful and dishonourable by reputable members of the legal profession: per Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Allinson) and, as such, constituted professional misconduct at common law.
We note that professional misconduct at common law includes conduct in the pursuit of professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency: see for example, The Council of the Bar Association of New South Wales v Sahade [2007] NSWCA 145. The breadth of the concept was discussed in Bechara v Legal Services Commissioner [2010] NSWCA 369 at [44] by McClellan CJ at CL.
As the respondent has failed to comply with the Notice and she has not provided any explanation for her failure to do so, we are also satisfied that her conduct would also be properly regarded as either disgraceful or dishonourable by professional colleagues of good repute and competency. As a result, she is guilty of professional misconduct at common law.

Appropriate orders

In our view, based upon our findings and conclusions regarding her conduct, we are satisfied that the respondent should be reprimanded.
We are also satisfied that it is appropriate to order that the respondent should not be issued with a practising certificate by the Law Society of New South Wales until she has complied with the Notice.
Further, as we have determined that the respondent is guilty of professional misconduct, and there is no evidence before us that establishes any exceptional circumstances, we are required to order that she should pay the applicant's costs of these proceedings pursuant to sch 5 cl 23 (1) of the CAT Act.

Orders 1. The respondent is guilty of professional misconduct on the grounds that she failed to comply with a Notice issued under s 371 of LPUL and she breached Rule 43.2 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. 2. The Tribunal orders that: 1. The respondent is reprimanded. 2. The respondent not be granted a practising certificate by the Law Society of New South Wales until she has complied with the Notice issued under s 371 of LPUL. 3. The respondent is to pay the applicant's costs, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2019

2) Legal Profession Uniform Law Application Act 2015(NSW)

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