CARVER v LEGAL PROFESSION DISCIPLINARY TRIBUNAL [1991] NSWCA 47

CARVER v LEGAL PROFESSION DISCIPLINARY TRIBUNAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER JJA and Hope AJA 17 September 1991, 27 September 1991 [1991] NSWCA 47

Legal practitioner — Solicitor — Legal Profession Act 1987 Professional misconduct — Non payment of counsel's fees Arbitration of counsel's fees — Award — Failure to comply with award.

Clarke JA On 3 February 1989 the Council of the Law Society of New South Wales(which I shall describe as the respondent) lodged a complaint with the Disciplinary Tribunal constituted under the Legal Profession Act 1987 complaining that the conduct of Peter George Star Carver (the appellant), a legal practitioner, amounted to professional misconduct. The asserted ground for the complaint was in the following terms:

"The continuing failure to abide by an award made by the Joint Tribunal on Fees since on or about 18 June 1987 when the Society forwarded a letter to the solicitor informing him of a council resolution on 4 June 1987 that he be censured."

The complaint was heard by the Tribunal, then constituted by two solicitors and a lay member, which on 23 August 1990 published its orders and reasons for determination in which it expressed its conclusion that the solicitor's failure to comply with the award since at least 18 June 1987 constituted professional misconduct. As a consequence of this finding the Tribunal ordered that, pursuant to s163(1)(d) of the Legal Profession Act 1987 ("the Act"), the solicitor pay a fine of $2,000 and made various other orders.

The appellant has appealed from this determination pursuant to s164 of the Act and in his Notice of Appeal has raised seventeen separate grounds. During the hearing of the appeal the argument in support of those grounds raised, in essence, three basic points, they were: