Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Titmarsh [2021] NSWCATOD 170 Hearing dates: 31 January 2019 Date of orders: 31 January 2019 Decision date: 29 October 2021 Jurisdiction: Occupational Division Before: Craig QC, ADCJ, Principal Member N J Matkovich, Senior Member J L Schwager AO, General Member Decision: 1. The Respondent Shaun Michael Titmarsh is reprimanded. 2. Order that the Respondent satisfactorily complete the HSW Practice Management Course conducted by FMRC Legal Pty Ltd in which he is enrolled for 8 to 10 May 2019. 3. The Respondent is fined the sum of $5,000.00. 4. The Respondent is ordered to pay the Applicant's costs of the proceedings, as agreed or assessed. Catchwords: LEGAL PRACTITIONERS - solicitor - disciplinary proceedings - delay in attending to the affairs of a client - unsatisfactory professional conduct - penalty orders Legislation Cited: Legal Practitioners Act 1898-1954 (NSW) (repealed) Legal Profession Act 2004 (NSW) (repealed) Supreme Court Rules 1970 (NSW) Cases Cited: Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Category: Consequential orders Parties: Council of the Law Society of New South Wales (Applicant) Shaun Michael Titmarsh (Respondent) Representation: Counsel: P A Maddigan (Applicant) J Lynch SC with J Heazlewood (Respondent) Solicitors. Council of the Law Society of New South Wales (Applicant) Watts McCray Lawyers(Respondent) File Number(s): 2017/00063343 REASONS FOR DECISION Introduction 1. The Tribunal found the following complaints established against Shaun Michael Titmarsh ( the Respondent) and that such conduct constituted unsatisfactory professional conduct: 1. Ground 1: The Respondent failed to transfer the interests of the complainant's late father (who died on 7 January 1996) in the property at 6 Candowie Crescent Baulkham Hills NSW ( the Land) to his late mother Ruth Ann Lambert (who died on 12 November 2010); and 2. Ground 2: The Respondent failed to transfer the interests of the late Ruth Ann Lambert in the Land to Kathryn Ruth Lambert. 1. The Applicant sought penalty orders against the Respondent in relation to the finding of unsatisfactory professional conduct. 2. The Respondent did not oppose the orders being sought against him. Applicable Law 1. The proceedings are to be determined pursuant to the Legal Profession Act 2004 (the LPA). The LPA was repealed as from 1 July 2015 by section 167(a) of the Legal Profession Uniform Law Application Act 2014 (NSW). It was agreed by both parties that the provisions of the LPA govern the determination of these proceedings. This follows from the application of the transitional provisions in cl 26 of Pt 3 of Sch 4 to the Uniform Law ( Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 at [61] - [73] ). 2. The orders which may be made by the Tribunal consequentially on a finding of unsatisfactory professional conduct are found in Part 4.8 of the LPA. The Tribunal is empowered under section 265 of the LPA to make various orders, including that: 1. the Respondent's practising certificate be suspended for a specified period or cancelled; 2. the Respondent be reprimanded; and / or 3. the Respondent be ordered to pay a fine. 1. Section 562(7)(a) of the LPA prescribes that the maximum fine which can be imposed following a finding of unsatisfactory professional conduct is $10,000. Consideration of the Respondent's Conduct 1. The Respondent admitted gross delay in effecting the transfer of the Title of the Land in that between January 1996, when he received instructions to obtain the probate of the will of William Artimus Lambert, including instructions to transfer the Land in accordance with that will, and November 2010, when Ruth Ann Lambert, who was beneficially entitled to the Land, died without any transfer having been effected, a period of 14 years having elapsed. 2. The Respondent admitted gross delay in administering the Estate of the late Ruth Ann Lambert in that between November 2010 when he received implied instructions from Kathryn Lambert to administer the Estate of the late Ruth Ann Lambert and September 2012 which constituted a period of 22 months, he took no action. 3. The Respondent did not challenge the facts of either Ground 1 or Ground 2 of the application. 4. The Respondent proposed some arguments in mitigation of his delay as described in Ground 2 of the application but ultimately acknowledged that he should have been more proactive in carrying out his duties irrespective of any action (- or inaction) taken by his then client, Kathryn Lambert. Prior findings of his misconduct against the Respondent 1. The Respondent has had prior findings of misconduct made against him during his practice as a solicitor. 2. The Respondent's conduct which was the subject of the previous complaints has included the following: 1. delay in the conduct of various matters; 2. delay or failure to transfer files; 3. failure to communicate with clients, former clients or other solicitors; and 4. failure to comply with three notices issued pursuant to section 152(1) of the Legal Profession Act 1987 ( two notices issued by the Applicant, and one notice issued by the Legal Services Commissioner). 1. The prior findings of misconduct against the Respondent appear to have mostly occurred during an earlier period of the Respondent's legal practice, and no more recent incidents of misconduct were identified by the Applicant (other than those the subject of the proceedings). The Respondent's Age and Professional Experience 1. The Respondent was admitted on 5 July 1985, had been the principal of a law practice since 1 July 1998, and a sole principal since 11 August 2015. In summary, the Respondent had significant experience carrying on a legal practice as a solicitor at the time the subject complaints were made against him. 2. It is noted that the Respondent conceded at the Hearing that: 1. he should receive a fine although he contended that the fine should be a "token" fine; 2. he was willing to undertake a refresher Legal Course in practice management; and 3. the Applicant was entitled to an order against him for its costs of the proceedings. ORDERS 1. The orders that we made on 31 January 2019 and issued on 1 February 2019 are as follows: 1. The Respondent Shaun Michael Titmarsh is reprimanded; 2. Order that the Respondent satisfactorily complete the HSW Practice Management Course conducted by FMRC Legal Pty Ltd in which he is enrolled for 8 to 10 May 2019. 3. The Respondent is fined the sum of $5,000.00 4. The Respondent is ordered to pay the Applicant's costs of the proceedings, 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 Amendments 29 October 2021 - Date of orders corrected to 31 January 2019. Correction to order details. 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 2021