Law Society of New South Wales v Knudsen [2003] NSWADT 178

CITATION: Law Society of New South Wales v Knudsen [2003] NSWADT 178 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Peter Stanley Knudsen FILE NUMBER: 022021 HEARING DATES: 21/03/2003 SUBMISSIONS CLOSED: 03/21/2003 DATE OF DECISION: 07/31/2003

BEFORE: Vass CB -Judicial Member at 1; Mattila J - Judicial Member at 32; Costigan M - Member at 1 APPLICATION: Request for further and better particulars MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 Crimes Act 1900 LEGISLATION CITED : Legal Practitioners Act 1898 Legal Profession Act 1987 Legal Profession Reform Act 1993 CASES CITED: Re Veron: Exparte Law Society of NSW (1996) WN NSW 136Kelly v Kelly (1950) 50 SR (NSW) 261; 67 WN 193R v Associated Northern Collieries (1910) 11 CLR 738Saunders v Jones (1877) LR 7 ChD 435Sims v Wran (1984) 1 NSWLR 317 APPLICANT REPRESENTATION: R Sitt QC, counsel RESPONDENT A Sullivan, counsel ORDERS: 1 The Notice of Motion is dismissed; 2 The solicitor applicant is ordered to pay the costs of the Law Society in relation to the Notice of Motion as agreed or assessed

The Tribunal is divided in opinion in this matter. Under section 78(1) of the Administrative Decisions Tribunal Act 1997 when the members of the Tribunal are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal. The decision in this matter is therefore that of C Vass, Judicial Member and M Costigan, Member. Reasons of C Vass, Judicial Member and M Costigan, Member 1 Peter Knudsen (The Respondent) has by way of Notice of Motion dated the 29th of November 2002 and filed on the 2nd of December 2002 sought an order that the Council of the Law Society of NSW provide the further and better particulars requested in the letter from the Respondent's solicitors to the Professional Standards Department of the Law Society dated the 12th of September 2002. 2 On the 21st of August 2002 the Professional Standards Department ("the Department") wrote to Mr N Gibson the solicitor representing the Respondent indicating that the Professional Conduct Committee ("Committee") will be meeting to consider making a number of complaints against the Respondent and invited the Respondent to make submissions. On the 5th of September 2002 the Department wrote again to Mr Gibson pointing out that a resolution had been passed by the Committee to the effect that complaints which were annexed to that letter involved allegations of professional misconduct against the solicitor and that it was in the public interest for the Committee to deal with the complaints. The letter goes on to indicate that to enable the Committee to consider the complaints the Respondent is required to provide the Committee with a written response by 5pm on the 18th of September 2002 and also indicates the material which the Law Society will consider when dealing with the complaints. 3 On the 12th of September 2002 and the solicitor representing the Respondent wrote to the Department seeking further and better particulars of the complaints. 4 The request for particulars was very detailed. Nevertheless, the letter was responded to by the Department by letter of the 13th of September 2002. The Respondent's solicitor considered the response to be inadequate and the solicitor representing the Respondent wrote a further letter to the Department on the 24th of September 2002. The Department responded to that letter by letter of the 25th of September 2002 and the solicitor representing the Respondent complained that that response did not provide any further particulars. 5 A further letter was written by the solicitor for the Respondent on the 2nd of October 2002 to the Department. That was a very detailed letter setting out the bases upon which the solicitor considered the response to be inadequate. There was no response to that letter other than a letter dated the 19th of March 2003 from the Department which purported to provided further and better particulars. The Respondent still complains that that letter is inadequate and that the answers to particulars remain insufficient. 6 The Respondent provided a number of authorities to inform the Tribunal as to what was the object of particulars being provided and an appropriate summary to set out in this decision is the summary on page 50, 805 of the High Court and Federal Court Procedure/Butterworths at 40-315.1. "The object of particulars is: a) To inform the opponent of the nature of the case he has to meet as distinguished from the way in which such case will be proved, see eg Philiponi v Leithead (1959) 76 WN (NSW) 150; b) To prevent the opponent from being taken by surprise at the trial. See eg, Miller v Miller Autobody Co Ltd (1922) 39 WN (NSW) 201; c) To enable the opponent to know what evidence he should collect. See eg Wilson v Wilson (1952) 69 WN (NSW) 358; d) To limit the generality of the pleadings. See eg Miller v Cameron (1936) 54 CLR 572. 7 The Legal Services Tribunal was created by the Legal Profession Reform Act 1993 and that Act substantially amended the Legal Profession Act 1987. The 1987 Act introduced substantial changes to the regulation of the legal profession in NSW. Prior to its commencement a "solicitor's statutory committee" constituted under the Legal Practitioner's Act 1898 had, since 1935, jurisdiction to investigate questions of professional misconduct affecting solicitors. 8 The Legal Practitioners Act 1898 did not define professional misconduct although it prescribes certain wilful breaches of its provisions to be professional misconduct. The solicitor's statutory committee was empowered to deal only with issues of professional misconduct and could not therefore, deal with matters of personal misconduct unrelated to a solicitor's practice even when that conduct might indicate the solicitor's unfitness to remain in practice. 9 The Council of The Law Society or the Bar Association or the Legal Services Commissioner must institute proceedings in the Tribunal if satisfied that "there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the tribunal of unsatisfactory professional conduct or professional misconduct (s 155(1) and (2)). 10 The jurisdiction of the Tribunal therefore depends upon the institution of proceedings by a Council or the Commissioner in respect of a complaint. Section 167(2) requires the Tribunal to "conduct a hearing into each allegation particularised in the information". 11 Section 167(4) enables the Tribunal "subject to its Rules and the Rules of procedural fairness" to order "the joinder of any two Informations against the same or different legal practitioners or interstate legal practitioners." 12 The position of a legal practitioner subject to disciplinary proceedings has been the subject of comment on several occasions by the Supreme Court when exercising its disciplinary jurisdiction. In fact the Full Court of the Supreme Court in Re: Veron; Ex Parte Law Society of NSW (1966) WN NSW 136 should in particular be noted. The following comment appears in the judgment of the Court: "The jurisdiction is a special one and it is not open to the respondent when called upon to show cause as an officer of the Court to lie by and engage in a battle of tactics as was the case here, and to endeavour to meet the charges by mere argument. We are well aware that if a solicitor is called upon to show cause he may do so in several ways. He may: a) argue that the material before the Court discloses no evidence of misconduct; b) argue that the facts adduced in evidence do not warrant a finding of misconduct; c) meet the decision by denial or explanation, in either case upon oath of the truth or of the significance of the facts deposed to. It is the last alternative in the main with which the Respondent was faced here. Yet as we have said, no denial or explanation was forthcoming, the Respondent having sought what refuge was available in argument from the bar table" 13 There is a declaration in Section 5 of the Legal Profession Act that "a legal practitioner is, on and from admission, an officer of the Supreme Court." Section 152 of the Act relates to the powers of a Council or Commissioner when investigating a complaint. It is therefore consistent to say that a legal practitioner while he cannot be compelled to give evidence which would be incriminating the Court and the Tribunal can reasonably expect that a practitioner charged with professional misconduct should answer such charge by adopting one of the courses of action described by the court in Veron. 14 There are within matter number 022021 three complaints. The first complaint is that the solicitor wilfully breached Section 61 of the Legal Profession Act 1987. There appears in Annexure "A" to the Information particulars in relation to that complaint and those particulars comprise twelve separate paragraphs. By way of summary those paragraphs indicate that the solicitor acted for Kerrie Lyn Marshall the next friend of her four children in District Court proceedings and the paragraphs traced in chronological form the handling of the matter including taking over the matter file from the former solicitors and the giving of various undertakings, the conclusion of the proceedings and the assessing of costs and importantly in clause 10 points out "From each of the children's accounts the solicitors also paid to himself or his then firm sums totalling $8,519.21. This figure included an amount of $2,500.00 referred to as 'counsel's fees'." 15 In our opinion those particulars clearly set out the particulars upon which the Law Society will rely in order to prove that particular allegation. 16 The solicitor by his solicitor Mr Norm Gibson in a letter dated 12 September 2002 sought further and better particulars in relation to the abovementioned complaint. The particulars sought are: A. Allegations of wilful breach of s61 of the Legal Profession Act 1. Specify with precision of the person or persons on whose behalf for the purposes of s61(1) of the Act it is alleged, Mr Knudsen received money. 2. Provide full particulars of the facts and circumstances relied upon by the Society to support the assertion that the person or persons identified in respect of the request in the preceding paragraph were the relevant persons for the purposes of s61(1) of the Act. 3. Is it alleged that the person or persons (or any of such persons) identified in answer to the request in the first paragraph gave any direction to Mr Knudsen pursuant to s61(2) of the Act? 4. If so, provide full particulars of the alleged direction and, to the extent that such direction was in writing, provide a copy of such writing. 5. In respect of the allegation that the breach of s61 of the Act was 'wilful', specify with precision the facts and circumstances relied upon by the Society to support the assertion that the alleged breach was a 'wilful' one. 17 The Professional Standards Department responded by letter of 13 September 2002 and there response was to point out that the particulars annexed to its letters of 21 and 22 August 2002 and 5 September 2002 which are the same as the particulars referred to in the Information. 18 In the opinion of the Tribunal the response is adequate and appropriate. It is clear from that response that in relation to requests A(1) and A(2) that the parties are nominated. In relation to request A(3) it is clear to the Tribunal that the Society was not relying upon any specific direction. 19 In relation to request A(5) it is again clear to the Tribunal that the Law Society will rely upon the particulars in the Information. 20 We adopt the words of the Professional Standards Department set out in paragraph A(5) of their letter of 19 March 2003 where they say: "It is the Society's case that the wilfulness of the solicitor's conduct is established by the fact that he knew what he was doing in carrying out the conduct specified in the Terms of Reference and the particulars annexed to the Information referred to above and he intended to do what he, in fact did." The Tribunal takes the view that the position referred to was obvious from the particulars annexed to the Information. 21 The second complaint is that the solicitor misappropriated trust monies. 22 In relation to that complaint Mr Gibson in the same letter of 12 September under paragraph B asks a number of particulars which were: B. Allegation that the solicitor misappropriated trust monies 6. Is it alleged that the solicitor 'misappropriated' trust monies as the term 'misappropriate' is defined in s164 of the Crimes Act 1900? 7. If so, provide the following particulars:- (i) Full details of the facts and circumstances relied upon to support the allegation that Mr Knudsen received any monies as 'agent'; (ii) Who, is it alleged, was the principal for whom Mr Knudsen was alleged to be the agent?; (iii) Provide full particulars of the facts and circumstances relied upon to support the assertion that the person identified in answer to the preceding subparagraph was the 'principal'; (iv) Provide full particulars of the facts and circumstances relied upon to support the assertion that Mr Knudsen, as agent, was entrusted with monies for the principal so identified; (v) Provide full particulars of the amount of money which it is alleged was so entrusted to Mr Knudsen as agent and by whom he was so entrusted in respect of that amount; (vi) Provide full particulars in respect of the amount identified in the preceding subparagraph of how, it is alleged, Mr Knudsen, as agent, misappropriated such monies, or any part thereof, to his own use or benefit or, alternatively, to the use or benefit of some person other than the principal; (vii) In respect of the allegation that the monies were received by Mr Knudsen, as an agent, in trust for some other person, provide full details of the alleged trust including copies of any written documents and, to the extent that the trust is alleged to have been an oral one, give full details of the alleged terms of the trust; (viii) Is the trust alleged to arise by implication or to be resulting or constructive trust and, if so, identify which; (ix) If the answer to the preceding sub-paragraph is in the affirmative, specify with precision the facts and circumstances said to give to that trust. 8. If you are using the word 'misappropriated' in a sense other than as defined in s164 of the Crimes Act, please define with precision what you mean by the expression 'misappropriated'. 9. Provide full and specific particulars, including copies of all relevant documents, setting out the facts and circumstances relied upon by you to support the assertion that Mr Knudsen 'misappropriated' trust monies in the sense defined by you in answer to the preceding paragraph. 23 All those particulars were responded to by the Society as follows: B. The solicitor misappropriated trust monies 6. The Society's proceedings are under the Legal Profession Act, 1987. The term 'misappropriation' is to be given its ordinary meaning. See for example the Oxford dictionary for definition. 7. Not applicable. 8. Please see the answer to B6 above. 9. I refer you to ground B and the particulars thereto in Annexure 'A' to my letters to you of 21 and 22 August 2002 and 5 September 2002 and to your client's files and ledgers produced by him to the Tribunal in the proceedings. 24 In the Information in relation to Complaint B the particulars relied upon are the same particulars as in Complaint A. 25 We won't set out all those particulars again but the nub of the Law Society's case is that the solicitor received sums of money for costs and disbursements and those monies were paid into the solicitor's trust accounts which were maintained by the solicitor for the children. The particulars suggest that the solicitor transferred monies to himself or to his firm and that as at 3 March 1999 each of the children's trust accounts had a nil balance. Also monies were not paid to counsel. 26 The Tribunal is of the opinion that the Professional Standards Department's response to the request for particulars was appropriate. The proceedings are brought under the Legal Profession Act 1987 not the Crimes Act 1900. It is also clear that the Law Society is relying upon the solicitor's file and various ledgers to support its case. 27 The third Complaint is that "the solicitor attempted to induce a material witness not to give evidence in disciplinary proceedings against him by payment of monies." 28 The particulars supplied in the Information in relation to this complaint comprise of eleven paragraphs and in particular sets out that Terms of Settlement were entered into in relation to the payment of the sum of $13,000.00 and that those Terms of Settlement contain a particular paragraph numbered 6, which states: "6(a) that you will not swear any further affidavit nor will you offer to give evidence against Mr Knudsen in the proceedings instituted by the Law Society against him and numbered 012043/01 and; (b) that you will write to the Law Society within seven days after payment of the said sum of $13,000.00 informing the Law Society that the undertaking has now been honoured and that you specifically decline to give evidence in those proceedings and will send a copy of that letter to Mr Knudsen of even date with that to the Law Society." 29 Paragraph 11 of the particulars goes on to say: "By the above terms, the solicitor attempted to induce Mr Nichols, then a material witness in proceedings numbered 012043 before the Administrative Decisions Tribunal, not to give evidence against him." 30 Again it is clear to this Tribunal that the Law Society is relying upon the fact that a Complaint has been made and the nature of that complaint is particularised by referring to specific documents and those documents are available to the solicitor. In the Tribunal's opinion the particulars sought in paragraph C of the letter of 12 September 2002 are venturing into that area of engaging in a battle of tactics and endeavouring to meet the charges by mere argument which is an approach which the full Supreme Court in Veron said is not open to a solicitor. ORDERS 31 In the circumstances the Notice of Motion is dismissed. Reasons of J Mattila, Judicial Member Facts giving rise to the Notice of Motion 32 The Law Society wrote to the Respondent on 21 August and 5 September 2002 in relation to a number of proposed complaints against the Respondent. The matter involved funds received on trust for clients, being the Marshall children, and payment of those funds. 33 The solicitor for the Respondent, Mr Gibson, wrote to the Law Society on 12 September 2002, requesting further and better particulars of the new or further complaints foreshadowed by the Law Society in its letters dated 21 August 2002 and 5 September 2002. 34 The Law Society responded on 13 September 2002. 35 The solicitor for the Respondent sent a further letter to the Law Society dated 24 September 2002, again requesting further and better particulars. The Respondent's solicitor indicated that they could not properly reply to the Law Society's letters in the circumstances. The Law Society responded to that letter on 25 September 2002 but failed to provide any further particulars, continuing to demand a response to the letter of 5 September 2002 which gave rise to the request for further and better particulars. The Law Society indicated that the matter would be referred to the Professional Conduct Committee on 3 October 2002 "absent any substantive response to the complaints". 36 The solicitor for the Respondent again wrote to the Law Society on 2 October 2002, referring the Law Society to their legal obligations as a litigant and the relevant case law. The Respondent's solicitor indicated that they had received Senior Counsel's advice on the matter. The Respondent's solicitor again requested in a more detailed manner a response from the Law Society, so that they could prepare their case. 37 The Law Society failed to respond to this letter of 2 October 2002 by the Respondent. 38 On 3 October 2002, the Professional Standards Committee passed a number of resolutions in relation to the Respondent. The Law Society informed the Respondent of their decisions by letter dated 4 October 2002. 39 The Respondent's solicitor was given one week to respond and did so by letter dated 11 October 2002 requesting that the Law Society comply with the request for further and better particulars and that they be given an additional week in which to respond. 40 On 14 October 2002, the Law Society wrote to the Respondent's solicitor and informed them that the investigation was closed and that the matter was to be referred to the Tribunal. 41 On 29 October 2002, a Notice of Motion was lodged with the Tribunal seeking an order that the Law Society comply with their request to provide further and better particulars. 42 On 19 March 2003, two days prior to the matter being considered by the Tribunal, the Law Society replied to the Respondent's request for further and better particulars. The response failed to provide the additional particulars requested by the Respondent. Case Law and Legislation 43 The Administrative Decisions Tribunal Act 1997 at subsections 73(4) -(5) provides: The Tribunal is to take such measures as are reasonably practicable: (4) To ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions. Furthermore, the Tribunal: (5) Is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings. 44 It is clear from these two provisions that the intention of the legislation is to ensure that the parties and the Tribunal may require additional information so that the case can be properly considered. The Law Society at paragraph 15, page 32 of its submissions on 21 March 2003 stated: The Administrative Decisions Tribunal is a specialist tribunal and a solicitor before the Tribunal should be imputed with the knowledge of the law. However, the Law Society sought to impute to the Respondent knowledge not just of the law but also of the factual basis of the Law Society's case. 45 The Respondent requested further and better particulars as they are entitled to do, so that they could prepare their case. 46 The Respondent in their submissions on 21 March 2003 raised the suggestion that the Applicant should behave as a "model litigant". We note that the model litigant rules are a requirement imposed upon the Commonwealth Government to behave fairly and consistently. The model litigant rules provide that the Commonwealth should not take purely technical points when no prejudice has been suffered. The model litigant rules require the Commonwealth to go beyond complying with the official professional conduct requirements and impose a higher standard of behaviour. 47 The Law Society of New South Wales is not bound by the model litigant rules however, at a minimum, they should comply with the legal obligations imposed upon all litigants. The Law Society should not seek to restrict the ability of the Respondent to properly prepare their case by seeking to avoid providing further particulars. The Law Society during the course of submissions provided much of the additional information the Respondent was seeking. 48 The Respondent in their submissions on 21 March 2003 referred to the following summary of the object of particulars on page 50,805 of the Practice and Procedure, High Court and Federal Court of Australia (Sydney: Butterworth, 1991) at [40-315.1]: The objects of particulars are: (a) To inform the opponent of the nature of the case he has to meet as distinguished from the way in which such case will be proved: Duke v Wisden (1897) 77 LT 67 at 68; G W Young & Co Ltd v Scottish Union & National Insurance Co (1907) 24 TLR 73 at 74; R v Associated Northern Collieries (1910) 11 CLR 738; Aga Khan v Times Publishing Co [1924] 1 KB 675; McAndrew v Gray (1920) 20 SR (NSW) 635; Philliponi v Leithead (1959) 76 WN (NSW) 150. (b) To prevent the opponent from being taken by surprise at the trial: Spedding v Fitzpatrick (1888) 38 Ch D 410; Newport Dry Dock Co v Paynter (1886) 34 Ch D 88; Weinberger v Inglis [1918] 1 Ch 133; Miller v Miller Auto Body Co Ltd (1922) 39 WN (NSW) 201. (c) To enable the opponent to know what evidence he should collect: National Starch Co v Robert Harper & Co Pty Ltd [1906] VLR 8; Lemon & Co Pty Ltd v Moran and Cato Pty Ltd [1921] VLR 240; Bruce v Odhams Press Pty Ltd [1936] 1 KB 697; Wise v Wise [1944] P 56; Wilson v Wilson (1952) 69 WN (NSW) 358. (d) To limit the generality of the pleadings: Saunders v Jones (1877) 7 Ch D 435; Yorkshire Provident Life Assurance Co v Gilbert [1895] 2 QB 148; Miller v Cameron (1936) 54 CLR 572. 49 The Respondent also referred to Sims v Wran (1984) 1 NSWLR 317 where Hunt J stated at pages 321-322: "The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet: see Saunders v Jones (1877) LR 7 ChD 435 at 451; R v Associated Northern Collieries (1910) 11 CLR 738 at 740; Dare v Pulham (1982) 148 CLR 658 at 664. The object of particulars is to save expense in preparing to meet a case which may never be put: see McSpedden v Harnett (1942) 42 SR (NSW) 116 at 119; 59 WN 98; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing: Kelly v Kelly (1950) 50 SR (NSW) 261 at 265; 67 WN 193 at 196; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219. See, generally, Phillopini v Leithead [1959] SR (NSW) 352 at 358, 359; 76 WN 150 at 152; Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (Pt 1) (N.S.W.) 553 at 557, 558; Ellis v Grant (1970) 91 WN (NSW) 920 at 924, 925. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet: see Turner v Dalgety & Co Ltd (at 229); Phillopini v Leithead (at 359; 152); Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commissioner of Taxation (at 219, 220, 221). There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led. It is however important to emphasize that, ordinarily speaking, particulars are concerned with the nature of the case which is to be made by way of evidence; particulars are not to be used, except in the extraordinary case, to ascertain the legal characterization which a party places upon the facts and matters already identified in the particulars; cf Master Butchers Ltd v Commissioner of Taxation [1974] 1 NSWLR 350 at 359. Generally, it may be assumed that such argumentative matters or concepts will be either made clear in the pleadings or apparent from the facts and matters stated in the particulars supplied. If they are not, then the other party may in some cases be entitled to particulars in order to know the nature of the case he has to meet. But this situation will be rare. 50 Isaacs J in R v Associated Northern Collieries (1910) 11 CLR 738 at 740 stated: Where I am in any doubt as to the sufficiency of the particulars, I resolve in favour of the defendants so as to ensure their being in a position to fully understand and prepare for the case alleged against them. Request for Particulars Number 5 51 In the letter from Mr Gibson to the Professional Standards Department of the Law Society dated 12 September 2002, Mr Gibson requested the following in relation to further and better particulars: 5. In respect of the allegation of that the breach of s61 of the Act was 'wilful', specify with precision the facts and circumstances relied upon by the Society to support the allegation that the alleged breach was a 'wilful' one. 52 The difficulty with the particulars as set out by the Law Society was that there was no indication that any directions had been given in relation to the payment of trust funds, the clients being three children. 53 The Respondent had requested further and better particulars in relation to the Society's allegation that there was a wilful breach of section 61 of the Legal Professional Act 1987. The Law Society's response was: "It is the Society's case that the wilfulness of the solicitor's conduct is established by the fact that he knew what he was doing in carrying out the conduct specified in the terms of reference and the particulars annexed to the information referred to above and he intended to do what he, in fact, did." 54 It is inadequate to respond to a request for further particulars by stating that "he knew what he was doing". The request for further and better particulars must be met with the issues to which the evidence is to be directed; see Kelly v Kelly (1950) SR (NSW) 261 at 265. 55 This request for particulars has still not been properly answered. Request for Particulars Number 6 56 In the Respondent solicitor's letter to the Professional Standards Department of the Law Society dated 12 September 2002, the following further and better particulars were requested: 6. Is it alleged that the solicitor 'misappropriated' trust monies as the term 'misappropriate' is defined in s164 of the Crimes Act 1900 ? 57 The Respondent had requested additional particulars in relation to the Law Society's use of the term "misappropriated". The Law Society's response to the request for further particulars was that: "The proceedings are brought under the Legal Profession Act 1987. In the context of these proceedings, "misappropriated trust monies" are well-known and understood." The use of the term "misappropriation" is also used in the context of criminal proceedings and the Respondent was attempting to clarify whether it was likely criminal proceedings were envisaged. The Law Society subsequently referred the Respondent to the Oxford English Dictionary. This did not clarify the situation sufficiently to enable the Respondent to properly prepare his case. Again, the Law Society failed to provide the "issues of fact to be investigated at the hearing". 58 The information sought by the Respondent was provided by the Law Society in their submissions on 21 March 2003. The Applicant Law Society indicated that the term took its civil law meaning and that it was not the intention of the Law Society to institute criminal proceedings. 59 The submissions made on 21 March 2003 adequately responded to the request for further and better particulars. Particulars 7, 8 and 9 60 The Respondent solicitor requested the following further and better particulars after request for further and better particulars 6 (set out above) in their letter to the Law Society dated 12 September 2002: 7. If so, provide the following particulars:- (i) Full details of the facts and circumstances relied upon to support the allegation that Mr Knudsen received any monies as 'agent'; (ii) Who, is it alleged, was the principal for whom Mr Knudsen was alleged to be the agent?; (iii) Provide full particulars of the facts and circumstances relied upon to support the assertion that the person identified in answer to the preceding subparagraph was the principal; (iv) Provide full particulars of the facts and circumstances relied upon to support the assertion that Mr Knudsen, as agent, was entrusted with monies for the principal so identified; (v) Provide full particulars of the amount of money which it is alleged was so entrusted to Mr Knudsen as agent and by whom he was so entrusted in respect of that amount; (vi) Provide full particulars in respect of the amount identified in the preceding subparagraph of how, it is alleged, Mr Knudsen, as agent, misappropriated such monies, or any part thereof, to his own use or benefit or, alternatively, to the use or benefit of some person other than the principal; (vii) In respect of the allegation that the monies were received by Mr Knudsen, as agent, in trust for some other person, provide full details of the alleged trust including copies of any written documents and, to the extent that the trust is alleged to have been an oral one, give full details of the alleged terms of the trust; (viii) Is the trust alleged to arise by implication or to be a resulting or constructive trust and, if so, identify which; (ix) If the answer to the preceding sub-paragraph is in the affirmative, specify with precision the facts and circumstances said to give to that trust. [sic] 8. If you are using the word 'misappropriated' in a sense other than as defined in s164 of the Crimes Act , please define with precision what you mean by the expression 'misappropriated'. 9. Provide full and specific particulars, including copies of all relevant documents, setting out the facts and circumstances relied upon by you to support the assertion that Mr Knudsen 'misappropriated' trust monies in the sense defined by you in answer to the preceding paragraph. 61 The Law Society's response on 13 September 2002 was that the relevant documents setting out the facts and circumstances were to be found in "your client's files and ledgers". This response was again unnecessarily vague. A general reference to Mr Knudsen's files and ledgers is sufficiently broad so as to be unhelpful in clarifying the points of defence. 62 The response to the request for further and better particulars in relation to particular 7 and 9 have not been adequately answered. The information provided in relation to the request for particular 8 was answered during the course of submissions on 21 March 2003. Particulars 14, 15, 16, and 19 63 The Respondent solicitor requested the following further and better particulars in their letter to the Law Society dated 12 September 2002: 14. Is it alleged that the person or persons to whom payments of money were made as set forth in this complaint were not lawfully entitled to those monies as a result of acting in a professional capacity for clients? 15. If such an allegation is made, provide full particulars of the facts and circumstances relied upon to support this allegation. 16. If it is not alleged that the person or persons to whom the monies were paid were not so lawfully entitled to payment of those monies, specify with precision the facts and circumstances relied upon to support the assertion that the payment of monies was for the purpose alleged in the complaint. 19. In respect of the matters set forth in your present Particular 11 given in respect of this complaint, is it alleged that the instructions of Mr Knudsen there referred to:- (a) Were in writing; (b) If so, please provide a copy of that writing; (c) Were oral; (d) If so, please provide full details of the relevant conversations specifying between whom the said conversations took place, where they took place, when they took place and the substance of those conversations. 64 The Law Society's response was: "See the answer to the Society's letter of 13 September. The Society's case against your client in respect of the allegation is abundantly clear." 65 The request for particulars did not relate to the case against Mr Knudsen; it related to a question as to whether the person or persons who received the monies were lawfully entitled to do so. In the context of the case against the Respondent, this was a key point that needed some clarification. The Law Society in its submissions indicated it did not propose to argue that Mr Nicholson was not legally entitled to the monies. 66 It is important that the Respondent knows the nature of the case which he will be called upon to meet; see Saunders v Jones (1877) LR 7 ChD 435 at 449. 67 The difficulty faced by both the Respondent and the Tribunal was that the responses to the requests for further and better particulars were at best vague and on occasions confusing. On a number of occasions, the Law Society sought to avoid providing the Respondent with adequate particulars when it was clearly their obligation to do so. The Respondent was hindered in their ability to properly respond to the serious complaints made against him and to properly and to properly prepare their case based on a clear understanding of the allegations being made. Whilst the Law Society is not legally obliged to comply with the model litigant rules, it should meet the normal standard required of a litigant. 68 During the course of submissions on 21 March 2003, the request for particulars in relation to particulars 14, 15 and 16 were provided. The information requested in relation to the request for particulars 19 was not, however, answered either in the correspondence from the Law Society or, alternatively, in submissions on 21 March 2003. Conclusion 69 The Law Society's letters to the Respondent's solicitors were vague and argumentative and unnecessarily refused to provide further particulars that should have been available in the normal course to the Respondent. 70 The Law Society's behaviour reflects poorly upon them. It should not have been necessary for the matter to be brought before the Tribunal to elicit the necessary information that was provided in part on 21 March 2003. 71 The Law Society has the same responsibilities as any litigant and should not dissemble when asked to provide further and better particulars. 72 I would therefore have ordered that the Law Society provide the further particulars numbered 5, 7, 9 and 19.