Mr Shen was admitted as a solicitor in NSW on 20 March 2007. In these Reasons we have referred to him as the Solicitor.
On 20 October 2022 there was no appearance by the Solicitor or his client in respect of a criminal prosecution listed before the Local Court. The client was convicted in his absence.
The client complained to the Office of the Legal Services Commissioner (the Commissioner).
On 13 November 2023 the Commissioner found that the Solicitor had engaged in unsatisfactory professional conduct. The Solicitor was reprimanded (the Decision).
On 12 December 2023 the Solicitor applied to this Tribunal for an administrative review of the Decision. On 8 March 2024 an amended Application was filed. He asks us to find that he had not engaged in unsatisfactory professional conduct or, in the alternative, that he be cautioned rather than reprimanded.
The respondent is the Commissioner who says that the correct and preferable decision is the Decision made on 13 November 2023.
[2]
Adjournment application
The Solicitor sought an adjournment to enable him to get expert evidence in relation to his hearing.
On 5 February 2024 his Application for a Review of the Decision filed in this Tribunal was listed for directions. The Solicitor was ordered to file and serve any Amended Application and any evidence and written submissions by 28 February 2024. The Commissioner was directed to file evidence and submissions by 20 March 2024. By Order 2 (c), the Solicitor was then directed to file evidence and submissions in reply by 10 April 2024.
On 30 April 2024 the time for compliance with Order 2 (c) was extended to 20 June 2024. The matter was listed for further directions.
On 3 July 2024 the matter was listed for hearing on 8 October 2024. The President noted:
"NOTATION: The Applicant indicated to the Tribunal that he is in the process of obtaining expert evidence as to his hearing loss at the time of the conduct forming the basis of the complaint made to the Respondent. It is noted that the Tribunal has already granted an extension of time to the timetabling directions to enable the Applicant to obtain any further evidence he seeks to rely on. This matter has been commenced by the Applicant and he should progress the matter without delay.
At the next directions hearing on 4 September 2024, it is anticipated that a further short timetable will be made by the Tribunal with a view to the Applicant filing and serving an expert evidence report, together with brief written submissions, several days after that directions listing date, and that the Respondent would then have at least 7 days to file and serve any evidence or written submissions in response. The timetable for exchange of evidence and written submissions should be completed at least 7 days prior to the final hearing date of 8 October 2024."
On 4 September 2024 the Solicitor was ordered to serve any expert evidence on which he intended to rely on or before 12 September 2024. The hearing date of 8 October 2024 was confirmed.
On Wednesday 2 October 2024 at 6:50 pm the Solicitor emailed the Registry and apologised for the delay. He said most ENT doctors in the "ear specialist field refuse to provide report rather than report to meet requirements. Such as I have been Dr Patrick, Dr Kleiner, Dr Williams and Dr. Lowinger etc. Currently, we engaged Dr Philip Chang who work in St Vincent Hospital and specialist in the field, I have went to his clinic in North West conduct the relevant test, but he requires further test in their professional requirements. Therefore, I ask Tribunal to give an extension for further tests to be conducted for the report."
The Solicitor sought a six week extension to file and serve his evidence and submissions.
On Thursday 3 October 2024 the Registry asked the Solicitor whether he was seeking an extension of the timetable or seeking to have the matter adjourned. He replied on Thursday afternoon: … "as such circumstances, the doctor requests for further testing, could you please extend for further six weeks and adjourn this matter accordingly? My counsel and I only obtain the entirely expert report, then can rely on the report to submit and serve the submission to the Tribunal. Thank you so much for your consideration of my request and very appreciate it."
The application for the adjournment was stood over to 8 October 2024, the day the Application for Review was listed for hearing.
The power to adjourn is found in s 51 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). This section provides:
The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).
The Solicitor is "certain that [his] diminished hearing was behind [his] failure to correctly record the return date of 20 October 2022, and to incorrectly record it as 3 November 2022".
The Solicitor's hearing was assessed on 20 February 2024 and the Solicitor has interpreted the result of the assessment to mean "my hearing was reduced by up to 60%". However the report from the audiologist on which he relies to make that statement says he has bilateral moderate to severe hearing loss.
Attached to one the Solicitor's affidavits is a four line report from an Ear Nose and Throat specialist which expresses the doctor's opinion about the Solicitor's hearing as at 27 May 2024. The doctor, according to the Solicitor, was too busy to prepare a more comprehensive report.
We take into account that the report does not comply with NCAT Procedural Direction 3 as the doctor does not refer to the expert Code of Conduct, which affects the weight to be given to the doctor's opinion. In circumstances where the letter from the Solicitor to the doctor asking for the report has the same date as the report, the doctor has not explained whether he has seen or examined the Solicitor, whether he performed any tests, what his findings on examination were and on what basis he has expressed an opinion to the state of the Solicitor's hearing two years ago, we do not give the report any weight.
The legal principles relevant to the determination of the exercise of the discretion are the following:
1. The objects specified in s 3 of the NCAT Act which include:
(c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and
(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and
(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality...
1. The guiding principle set out in ss 36(1) of the NCAT Act:
...to facilitate the just quick and cheap resolution of the real issues in the proceedings…
1. The aim of proportionality, set out in subsection 36(4) of the NCAT Act:
… to facilitate the resolution of the issues between the parties in such a way that the cost of the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings.
1. The obligation imposed by paragraph 38(5)(c) of the NCAT Act:
… to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
1. To obtain an adjournment, the applicant needs to explain precisely why an adjournment is warranted: AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [6]. It was said in that case:
"This matter was fixed for hearing some considerable time ago and its presence in the List has prevented other matters being listed for hearing. The Court will not permit its List to be disrupted in this way without good reason."
1. The relevant common law principles, considered by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, include:
1. Applications for adjournment should not be considered solely by reference to whether any prejudice can be compensated by costs. [4]
2. Public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to adjourn. [27]
3. The impact on other pending cases is a relevant consideration since the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. [113]
Case management principles, which aim to minimise delay and expense, including the effect of an adjournment on the Tribunal and other litigants, are relevant considerations: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 at [51].
In Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 the Tribunal held at [54]:
… Whilst a decision of the Tribunal to adjourn a hearing is a discretionary decision that must be exercised judicially, it is to be noted that those decisions confirm that:
(1) matters should almost always proceed on the date fixed for hearing, including for reasons of minimising the delay and cost of the proceedings and the impact of an adjournment on other litigants and the Tribunal;
(2) an application for an adjournment should be seen as the exception rather than the ordinary course;
(3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively, against the grant of the adjournment; and
(4) the effect of any adjournment on the opposing party must be considered.
In determining whether to exercise the discretion to grant the adjournment, we have taken into account that the Solicitor has not fully explained why he had failed to obtain the medical evidence on which he seeks to rely. We do not know what steps the Solicitor has taken, starting from, at the latest, 10 April 2024 being the date set in the first timetable. Nor do we have any evidence as to whether he could in fact obtain that evidence in a further six weeks.
This is a busy jurisdiction. The Solicitor was given at least six months to obtain this evidence. While it has been described as an application for an adjournment it is in fact an application to vacate the hearing date. The email asking for an adjournment was received one clear working day before the hearing was to commence, as 7 October 2024 was a public holiday. The email does not explain why the application was not made earlier. Late vacation of hearing dates impact on the limited resources of the Tribunal, both time and money and unnecessary cause delay to other litigants awaiting a hearing.
On 8 October 2024 we refused the application for an adjournment and these are our Reasons.
[3]
Jurisdiction and nature of NCAT's review jurisdiction
Once a legal disciplinary decision has been made by the Commissioner under s 299 of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law), the Solicitor may seek administrative review of that decision: Uniform Law, s 314.
The principles relevant to review proceedings were summarised in Quinones v Council of the Law Society of New South Wales [2023] NSWCATOD 43 at [14] (Quinones), and Di Giovanni v Council of the Law Society of New South Wales (Di Giovanni) [2024] NSWCATOD 66 at [24] including relevantly as follows:
1. This review is conducted under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), the Uniform Law, the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 126, and the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. We must decide what is the correct and preferable decision having regard to the material before us: ADR Act, s 63(1).
3. We stand in the shoes of the original decision maker and we should conduct the review as though we were performing the function of the Commissioner in accordance with the law as applied to it. We may consider the material before the decision-maker as well as any relevant new material put before us. We may exercise all of the functions that were conferred or imposed on the Commissioner: ADR Act, s 63(2).
4. Our task is to determine the matter on the merits. We are not concerned to examine whether there was challengeable error in the process or reasoning by the Commissioner. There is no presumption that the Commissioner's decision is correct.
5. There is no onus of proof on either party. The rules of evidence do not apply to review proceedings since they do not involve a question of professional misconduct: NCAT Act, s 38(2) and cl 20 of Sch 5; Uniform Law, s 301(3).
6. A fundamental obligation is to make findings of fact based on logically probative material and we may rightly have regard to the gravity of any allegations made and to the gravity of the consequences that may flow from the making of a particular finding or decision.
7. We are entitled to inform ourselves on any matter in the manner we think fit, subject to the rules of natural justice.
8. We may decide to affirm, vary or set aside the Decision (and then either make a substitute decision or remit the matter for reconsideration by the decision maker): ADR Act, s 63(3).
9. The purpose of the disciplinary proceedings conducted by the Commissioner and therefore our review of the decision, is not to punish the Solicitor but to protect the public.
[4]
What were the Reasons and the Decision of the Commissioner?
[5]
The Reasons
The Commissioner considered the Complaint which had been received from the client. The Complaint had two Grounds - the Solicitor's conduct in relation to the proceedings in the Local Court and an assertion that the Solicitor had continued to act after his retainer had been terminated. The Commissioner decided that the Second Ground had not been established to the requisite standard and closed that issue as requiring no further investigation.
On 23 November 2023 the Commissioner decided that the Solicitor's failure to attend Court without reasonable excuse was unsatisfactory professional conduct as defined in s 296 of the Uniform Law.
[6]
The Decision
The Commissioner decided to reprimand the Solicitor: s 299(1)(b) of the Uniform Law.
[7]
This Review
"This review involves a two-step process. We must determine whether the Solicitor engaged in unsatisfactory professional conduct, and if so, decide what protective order or orders (if any) are correct and preferable": Quinones at [15(10)]; Di Giovanni at [24(10)].
We find that the conduct occurred in connection with the practice of law. There was no submission to the contrary.
[8]
Did the Solicitor engage in unsatisfactory professional conduct?
[9]
Legal principles
The Commissioner relies on s 296 of the Uniform Law which relevantly provides:
296 "Unsatisfactory professional conduct" includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
[10]
Facts
The Commissioner gave the Solicitor several opportunities to explain why there had been no appearance by the Solicitor or the client in the Local Court on 20 October 2022. That correspondence is in evidence, together with the complaint and some correspondence between the Solicitor and the client. Two affidavits from the Solicitor were read and he gave evidence.
On 1 September 2022 the Solicitor and the client attended before the Downing Centre Local Court. The transcript records the following exchange:
"DEPUTY REGISTRAR: I will make an order that the brief is served by 29 September with a reply date of 20 October. There's no bail.
SHEN: Reply to which date?
DEPUTY REGISTRAR: 20 October.
ADJOURNED"
On 20 October 2022 the Solicitor wrote to the police. The letter commences:
We act for the accused … This letter is to provide our client's responses to the police facts and evidence.
After reviewing the evidence received, the letter concludes:
Based on the abovementioned grounds, we are instructed to request the NSW police to withdraw the charges against our client …
On 20 October 2022 there was no appearance by or for the client before the Court. The client was convicted in his absence.
On 25 October 2022 a solicitor employed by the Solicitor wrote to the client sending him a copy of the letter sent to the police. In that letter the solicitor says:
We will go to the court registry to confirm your hearing date for you tomorrow.
In his Complaint dated 14 November 2022 the client relevantly said:
Both Mr Shen and I attended the first mention of the matter in person on 1 September 2022 and entered a plea of not guilty to the single charge. After the mention Mr Shen failed to inform me that the Court listed the matter for reply on 20 October 2022. As a result, neither Mr Shen nor I attended the mention on 20 October 2022. The Court consequently convicted me with a fine of $500 in my absence. …. Not until I received the Advice of Court Result in the mail on 26 October did I find out that I or my legal representative was required to appear before the court on 20 October. I immediate rang Mr Shen and asked him about this judgment on the same day, and he told me that was a good result, neither Section 10 or Section 9, no criminal record, and it was equivalent to a traffic fine ticket.
In his letter to the client on 16 November 2022, the Solicitor said:
... on 1st September 2022 hearing, ...the magistrate made order was police provided evidence on 29th September 2022 and asked us, on behalf of you to respond the police evidence 28th October 2022 and list the matter before the court in November. However, we do not receive any Notice from the court for changing hearing date during the time.
In his letter to the Commissioner dated 18 January 2023 the Solicitor relevantly said:
16. On 1 September 2022 both of us attended Local Court (Downing Centre) for the hearing. The honourable Magistrate made the following Orders
a. NSW police would serve their evidence to the accused or his solicitor by 29 September 2022
b. The accused or his solicitor would provide a response in reply by 28 October 2022
c. The matter be listed on 3 November 2022.
17. When the Magistrate made the Order, I wrote down the details for the record. Annexed and marked annexure "A" is a copy of the record…
43. The Magistrate had made the order that the Mention the matter was to be listed on 3 November 2022. If the court changed the date of the mention hearing, I was expected to receive the court's notice informing us about the change by mail or email. The court officer possibly missed out to send a mail to us, so that we have yet to receive any notice, even a phone call.
44. Under General Common Law Principle, when the magistrate or judge in the court makes an order; later, if it finds an error, it can be corrected by the magistrate or judge or higher-level court through proper procedure. At least, informing both parties to know the change. Otherwise, it is the procedure unfairness…
46. In the transcript page 1, paragraph 49 to 50, His honour said " A plea of not guilty was entered. Brief service orders were made and matter was adjourned for reply today". I do not received any changed for reply and mention hearing on 20th October 2022, which completed different the order made on 1st September 2022…
48. Due to the reason that I have not received any notice to inform us for the mention date be changed from the court or Police of NSW, I was unable attend for the hearing on 20 October 2022.
The Annexure "A" referred to in paragraph 17 of the Solicitor's letter is the handwritten note the Solicitor made across the top of the Court Attendance Notice. It says "29/09 police evidence"; 28/10/22 Reply; 03/11/2022".
The solicitor next wrote to the Commissioner on 31 March 2023 enclosing a copy of the transcript of the hearing on 1 September 2022. The Solicitor said:
"I have a doubt but I could not find what's happened, during the hearing on 1st September 2022, Mr. Wang also appears on the day, he has graduated Australia and is a qualified accountant, he also heard that the court said that 29th September 2022, police serves evidence to Mr. Wang or Wang's solicitor; 28th October 2022, replied to Police's evidence, the matter be re-list before the court on 3rd November 2023. After the hearing, I repeated the order to him…
However, the court may change date, does not inform us, when I received the transcript I found that date of the hearing completed difference, and also on the hearing date, I clearly remember that the hearing officer was male, from the Transcript changed to Deputy Registrar, Ms. Hoffman. I have consulted a few legal practitioners who regularly conducting criminal matter in the court, they said that the court may forget informing me the date changed. Because I felt it is strange that the matter was a criminal matter and normally does not require to give the evidence to respond…"
In his letter to the Commissioner dated 28 May 2023 the Solicitor said:
I have read that transcript now several times, and I really do not understand what happened for the incident or the mistake which in my failure to report the correct return date to my client…
I believe that mistake is incident that I made. I thought I had clarified the date when I originally did not hear it. It is unfair to infer from that that somehow I do not understand basic Court processes or procedure. …
In his letter to the Commissioner dated 26 October 2023 the Solicitor accepted that he was negligent when he failed to advise the client and failed to attend the hearing on 20th October 2023. He did add that, after the Orders made in the absence of the client had been set aside, he received a much more serious sentence.
[11]
Findings
We are satisfied that the Solicitor misunderstood the meaning of the second Order made on 1 September 2022. This was not because he misheard the Deputy Registrar, but because he misunderstood the meaning of the words used.
The effect of the Order was that, after reading the police brief, the client was to come back to the Court and inform the Court whether the client was going to plead guilty or plead the not guilty plea.
We do not understand why the Solicitor noted three dates when the transcript shows only two were mentioned. We do not consider that this mistake would be caused by poor hearing.
We are satisfied that the Solicitor however believed on 1 September 2022 that:
1. the word "Reply" used in relation to 20 or 28 October, meant that he was required to reply in writing to the police in response to the police brief and
2. The matter was next listed before the Court on 3 November 2022.
We make this finding because it is consistent with the relevant contemporaneous evidence.
It is consistent with his handwritten note made on 1 September 2022.
It explains why his letter to the police dated 20 October 2022 commences, "This letter is to provide our client's responses to the police facts and evidence".
The Solicitor's letter to the client on 16 November 2022 is consistent with both of our findings. By saying "the magistrate … asked us, on behalf of you to respond the police evidence 28th October 2022" he was not telling the client that they had to attend at Court. By saying "list the matter before the court in November. However, we do not receive any Notice from the court for changing hearing date during the time" discloses that the Solicitor thought the next Court appearance should have been in November and had been brought forward with out informing him.
The Solicitor's letter to the Commissioner dated 21 March 2023 is also consistent with both of our findings. He said that on 1 September 2022 the following Orders had been made - "29th September 2022, police serves evidence to Mr. Wang or Wang's solicitor; 28th October 2022, replied to Police's evidence, the matter be re-list before the court on 3rd November 2023". He again suggested that the Court may have changed the date without informing him.
We decline to find that the email from the solicitor to the client on 25 October 2022 mentioning that he would go to the registry on the next day to confirm the hearing date means, as was submitted, that the Solicitor knew there was some relevant confusion about the hearing date. The email does not convey any sense of urgency, nor is it mentioned in any contemporaneous explanation.
It is clear from the relevant Local Court Practice note Crim 1 that the usual procedure is for the making of a timetable setting a date by which the police brief is to be served and a later mention date for the entry of the plea.
The mistake made by the Solicitor is not an egregious error. We are concerned however at the Solicitor's conduct in blaming others - being his client and the Court - and changing his explanations when responding to requests by the Regulator even after he had received a transcript of the hearing on 1 September 2022. On one occasion he even suggested that someone had altered the transcript.
For these Reasons, we find that the Solicitor's conduct fell well below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and is thus unsatisfactory professional conduct as defined in s 296 of the Uniform Law.
[12]
Outcome
In Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24] the Tribunal set out what we accept to be the principal considerations in respect of the appropriate protective orders to be made, albeit that they do not constitute a closed list. They are:
1. The gravity of the misconduct;
2. The deterrent effect of any protective order on the further conduct of the practitioner;
3. The deterrent effect of any protective order on the conduct of other practitioners; and
4. The enhancement of confidence in the public in the integrity of the profession.
In deciding on the appropriate protective orders to be made following a finding of unsatisfactory professional conduct, we are obliged to take into account any failure by the practitioner "to understand the error of [their] ways": New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20, at 184.
The Solicitor asks for a caution rather than a reprimand because it is a less serious sanction.
However, in our view, the Decision of the Commissioner to reprimand the Solicitor was the correct and preferable decision after taking into account the delay in the Solicitor taking responsibility for his conduct, the need for specific and general deterrence, and to maintain public confidence in the integrity of the legal profession in New South Wales.
We accordingly affirm the Decision made by the Commissioner on 23 November 2024.
[13]
Orders
1. The Decision of the Acting NSW Legal Services Commissioner on 13 November 2023 is affirmed.
[14]
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: 29 October 2024
Parties
Applicant/Plaintiff:
Shen
Respondent/Defendant:
NSW Legal Services Commissioner
Legislation Cited (3)
(ADR Act), the Uniform Law, the Legal Profession Uniform Law Application Act 2014(NSW)