CITATION: Law Society of New South Wales v Swane [2005] NSWADT 197 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Bruce Alexander Swane FILE NUMBER: 052001 HEARING DATES: 3/05/2005 and 8/06/2005 SUBMISSIONS CLOSED: 06/08/2005 DATE OF DECISION: 08/24/2005 BEFORE: Brennan JWF - Judicial Member; Riordan M - Judicial Member; Fitzgerald R - Non Judicial Member APPLICATION: Professional Misconduct - breach of s. 55 of the Legal Profession Act - Professional Misconduct - delay - Professional Misconduct - fail to account - Professional Misconduct - fail to communicate - Professional Misconduct - fail to comply with s. 152 Notice MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Family Provision Act 1982 Legal Profession Act 1987 Allinson v General Council of Medical Education and Registration [1894] QBD 750 Briginshaw v Briginshaw [1938] 60 CLR 336 Kennedy v The Council of the Incorporated Law Institute of New South Wales 1940 ALJ 563 Law Society v Bannister [1990] NSW LST 7 CASES CITED: Law Society of NSW v Bannister [1993] NSW LST 6 Law Society of NSW v Berry [2005] NSW ADT 46 Law Society of NSW v Ciampa [1999] NSW ADT 13 Law Society of NSW v Jayawardena [2005] NSW ADT 96 Law Society of NSW v Konstantinidis [No. 2] [2005] NSW ADT 87 Law Society of NSW v Whitting [2005] NSW AT 150 APPLICANT REPRESENTATION: P Boyd, Solicitor RESPONDENT R Broadhead, Counsel ORDERS: 1. That a practising certificate not be issued to Bruce Alexander Swane until after the expiration of five (5) years from the date of these orders; 2. That Bruce Alexander Swane pay a fine of Five thousand dollars ($5,000.00) within ninety (90) days from the date of these orders; 3. That the practitioner be publicly reprimanded ; 4. That Bruce Alexander Swane pay the costs of the Law Society of New South Wales in these proceedings agreed in the sum of $2,500.00 within ninety (90) days from the date of order. REASONS FOR DECISION 1 By Information filed in the Tribunal on 27 January 2005 the Council of the Law Society of New South Wales ("the Society") informed the Tribunal that as a result of the Council's investigations of complaints made under Part 10 of the Legal Profession Act 1987 ("the Act") against Bruce Alexander Swane ("the Practitioner") a legal Practitioner within the meaning of Section 128 of the Act the Council claims that the Practitioner while practising as a solicitor was guilty of professional misconduct. 2 At the commencement of the hearing Mr Boyd on behalf of the Society sought leave to file an Amended Information which contained some slight alterations and this course of action was consented to by Counsel for the Practitioner. This Amended Information, which the Tribunal will treat as the Information detailed the following grounds of complaint as constituting the professional misconduct alleged: "1. The legal practitioner grossly delayed the handling of 10 matters. 2. The legal practitioner grossly delayed rendering a Memorandum of Costs and Disbursements in 9 matters. 3. The legal practitioner failed to provide a final accounting to the Executor in 8 matters. 4. The legal practitioner grossly delayed in accounting with respect to a Mortgage advance from Advance Bank. 5. The legal practitioner failed to realise money invested with certain institutions by I M Swain. 6. The legal practitioner failed to inform a residual beneficiary of her entitlement re Es. L E Davis. 7. The legal practitioner failed to diligently follow up with the Executor the investment of funds re Est. L E Davis. 8. The legal practitioner failed to comply with Section 41 of the Legal Aid Act re Mrs D Absalom. 9. The legal practitioner delayed in accounting to Milsky Pty Limited. 10. The legal practitioner failed to take steps to recover costs against Mullaley Properties Pty Limited. 11. The legal practitioner failed to and/or grossly delayed in collecting assets in Est. M. Dunn. 12. The legal practitioner breached Section 55 (5) of the Legal Profession Act. 13. The legal practitioner failed to comply with Notice under Section 152 of the Legal Profession Act." 3 The Society sought the following Orders: a) That the legal Practitioner be fined. b) That the legal Practitioner be reprimanded. c) That the legal Practitioner be ordered to pay the Society's costs. d) Such further order as the Tribunal considers appropriate. 4 In the course of presenting the case for the Society, Mr Boyd tendered four Affidavits which were admitted without objection. Reference will be made subsequently to each of these Affidavits on numerous occasions and for the sake of brevity the Tribunal has identified these as follows: a. Affidavit of Jean Sayer sworn 11 November 2004 ("Sayer"); b. Affidavit of Barry James Murdoch sworn 11 November 2004 ("Murdoch"); c. Affidavit of Raymond John Collins sworn 22 December 2004 ("Collins1"); d. Affidavit of Raymond John Collins sworn 21 January 2005 ("Collins2"). These four Affidavits were all admitted by consent and the deponents were not required for cross-examination by the Practitioner. On 15 April 2005 the Practitioner filed a reply in the following terms: "All of the allegations are admitted." The Practitioner in his affidavit sworn 15 April 2005 asserted that he raised no issue with the material in the Society's affidavits and stated that the material in the affidavits is correct. He asserted that he had endeavoured to act honestly and repudiated any assertion that he had improperly used clients' funds. He added comments in relation to five particular files: Estate Wymer, Estate L E Davis, Estate John Turk, Advance Bank mortgage to Wildman and Milsky Pty Limited and these will be referred to below as each file is dealt with. 5 The particulars in the Information have been set out under the headings of particular matters and in some instances there are a number of complaints arising out of a particular file and in others there is simply one complaint. In detailing the evidence in the matter and making its findings the Tribunal will follow that system from the Society's particulars rather than dealing with the specific grounds numbered 1 to 13 detailed in the information which necessarily would require more repetition and returning to the same files in some cases on three or more occasions. I. Estate of the late Elizabeth Charlotte Mazurkiewcz: 6 There are three counts arising out of the Practitioner's handling of this estate. These are: a. The Practitioner grossly delayed in finalising the distribution of the estate of the late Elizabeth Charlotte Mazurkiewcz; b. The Practitioner grossly delayed in rendering a memorandum of costs and disbursements to the executor of the estate until 5 April 2001; c. The Practitioner failed to provide a final accounting to the executor in respect of monies received and disbursed by the solicitor on behalf of the estate until 5 April 2001. 7 In relation to these three counts the Society relied upon Sayer and Murdoch. 8 The report of Ms Jean Sayer verified by her Affidavit was dated 21 March 2000. It reports that the late Elizabeth Charlotte Mazurkiewcz ("Mazurkiewcz") died on 22 December 1996 and that the Practitioner acted for her son in seeking a grant of Probate which was made on 7 August 1998. The assets in the estate had all been realised by 25 November 1998. The first distribution and payment of a legacy was effected on 3 August 1998 and a second distribution made in February and March 1999 which left a balance in the Practitioner's Trust account at 31 March 1999 of $4362.58. The executor phoned the Practitioner on 9 September 1999 concerning a final distribution in the estate. Cheques covering that final distribution were drawn on 16 September 1999 to the total value of $600.00 but the cheques were not sent to the beneficiaries and appear in the bank reconciliation statement of 20 February 2000 as unpresented cheques. Allowing for those final distribution cheques at the time of the Sayer report, a balance of $3705.58 remained in the Trust account which represented costs due to the solicitor of $3685.58 and agency fees of $20.00 and are detailed in the statement of receipts and payments in the file. Ms Sayer reported that a final distribution statement had been prepared and was in the file at the date of her report showing the amount of costs but there is no bill of costs rendered to the executor. 9 Annexed to Murdoch is the report of Mr Barry Murdoch dated 16 April 2003 which is verified by his Affidavit. In that report Mr Murdoch noted that the file in this matter contained a bill of costs, distribution statement and a trust statement all dated 5 April 2001. The cheques to beneficiaries referred to by Ms Sayer were written back into the Trust ledger account on 5 April 2001 and re-issued that day. Mr Murdoch noted that one of the beneficiaries, Mrs Downes, had allowed her cheque to become stale twice and the final distribution of $100.26 was made to Mrs Downes with a fresh (and third) cheque on 21 November 2002. 10 The three grounds of complaint are clearly established. There is no reason advanced as to why the estate was not finalised on or soon after 16 November 1999 rather than left until after Ms Sayer's visit on 29 February 2000 and then attended to on 5 April 2001. The failure to post cheques to the beneficiaries on 16 September 1999 is serious although the cheques were for small amounts ($249.87 and $100.26 respectively). There is no justification offered for this delay of eighteen months. The executor was entitled to receive a memorandum of the Practitioner's costs and disbursements and a final accounting certainly some eighteen months earlier. The Tribunal takes the view that this is on its own at least serious unsatisfactory professional conduct. The Practitioner should have taken steps as a matter of common sense to ensure he was or made himself quickly up to date. Fifteen months later, still no action when Ms Sayer makes her inspection. Then another thirteen months before the Practitioner takes the simple steps required to complete the long outstanding matter. The ongoing delay is gross and inexcusable. The Tribunal finds these three complaints established and each is held to be unsatisfactory professional conduct. The combined effect of these three complaints being established is that the Tribunal finds that together they constitute a substantial failure to reach reasonable standards of competence and diligence within the meaning of s127(1)(a) of the Legal Profession Act so that the net result is that findings on those three complaints is one finding of professional misconduct.. II. Estate of the late John Walter Wild: 11 The complaints arising out the Practitioner's handling of this estate were: a. The Practitioner grossly delayed in finalising the estate of the late John Walter Wild ("Wild Estate"); b. The Practitioner grossly delayed in rendering a memorandum of costs and disbursements to the executor of the estate until 10 March 2003; c. The Practitioner failed to provide a final accounting to the executor in respect of monies received and disbursed by the solicitor on behalf of the estate until 29 January 2003. 12 The evidence from Ms Sayer's report was that the Practitioner acted for the executor who is the son of the deceased. The client's late father died on 24 March 1987 and Probate was granted on 1 September 1988. The Will provided for several specific requests with the residue bequeathed to the executor and the estate was sworn for Probate at $57192.15 and consisted of some bank accounts and small investments. On 8 March 1990 a specific bequest of $3000.00 was paid leaving a balance in the Practitioner's Trust account of $5554.48. On the same day the Practitioner paid from his General account a bequest of $10,000.00 to another beneficiary and on 17 April 1990 a cheque for the balance of monies in the Trust account of $5554.48 was drawn in favour of the Practitioner in part repayment of his advance to pay that legacy. Further monies were paid into the Trust account and the balance of the advance by the Practitioner of $4445.52 was repaid from his Trust account on 13 September 1990. The proceeds of all assets to be realised had been paid into the Trust account by 2 October 1990 except for several small amounts from the proceeds of sale of shares. All specific bequests were paid by 26 October 1990. Ms Sayer reported that as at 19 November 1990 the balance in the Trust account amounted to $16685.13 which, subject to payment of costs due to the Practitioner, was due to the residuary beneficiary and that amount remained in the Trust account as at the date of her report of 21 March 2000. Draft accounts were prepared up to 13 November 1990 but were incomplete and had not been forwarded to the executor. No bill of costs had been prepared and there was no apparent reason why the estate had not been finalised at least by 19 November 1990. 13 Mr Murdoch in his verified report of 16 April 2003 showed that the same balance remained in the Trust account on his inspection on 17 December 2002 and there had been no change to the Trust account ledger at that date. Mr Murdoch was informed by the Practitioner on that inspection that a final accounting and distribution were in the course of preparation. The Practitioner advised provided a copy of an account dated 10 March 2000 to Mr Murdoch by letter on 24 March 2003 and advised that the amount billed of $3900.12 was paid on 29 January 2003. The Practitioner provided a copy of a letter from two members of the deceased's family dated 6 January 2003 to the effect that a letter from the Practitioner of 10 March 2000 had not been received and requesting payment out of the blue of moneys in his Trust account. A copy of that letter is before the Tribunal and there is a copy of a lump sum memorandum of costs and disbursements addressed to Mr R Wild dated 10 March 2000 which forms part of Murdoch. On 29 January 2003 a cheque of $12705.01 which appears to represent the final distribution of the estate was sent with a covering letter to the residuary beneficiary. The letter of 29 January 2003 addressed to the residuary beneficiary does refer to the amount as being "calculated in accordance with proposed Trust Statement forwarded to you the 10th March 2000". That Statement which would constitute the accounting of all monies received and disbursed was not produced by the Society. 14 The evidence of Ms Sayer is clear and was not challenged and from this it is clear that as at 19 November 1990 the Practitioner was in a position to attend to the accounting and finalise the estate by a final payment to the residuary beneficiary of $12,705.01 with the balance held being used to pay the Practitioner's costs and disbursements. The payment as sent, not in 1990, but on 29 January 2003 on which date the grossly overdue final accounting was also provided to the Executor. The rendering of the Practitioner's memorandum of costs and disbursements did not issue until a further 6½ weeks had elapsed. 15 The actions required of the Practitioner to finalise the estate and provide a final accounting and memorandum of costs were simple. He explains some delays by reference to keeping moneys aside from one tax year to another for what he describes as a "rainy day". That explanation may give rise to other issues which are not before the Tribunal. No explanation is given for these gross delays. They are simply appalling and the holding of $12,705.01 belonging to the Executor for over 12 years can be described as nothing short of disgraceful in the Allinson sense (Allinson v General Council of Medication Education and Registration [1894] QBD750). The conduct in the three complaints arising out of Mazurkiewcz satisfied the criteria for professional misconduct as, indeed, does the Practitioner's conduct in the Wild Estate which the Tribunal formally finds is also professional misconduct. In Allinson Lopes LJ said at 763: "It is important to consider what is meant by 'infamous conduct in a professional respect.' The Master of the Rolls has adopted a definition which, with his assistance and that of my brother Davey, I prepared. I will read it again: 'If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonable regarded as disgraceful or dishonourable by his professional brethren of good repute and competency' then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct in a professional respect.'" This text is one of a number that have over the years been applied to professional misconduct complaints against legal Practitioners. These gross delays are in the view of the Tribunal disgraceful and dishonourable in terms of Lord Lopes' definition of infamous conduct and amount to professional misconduct at common law. 16 In Kennedy v The Council of the Incorporated Law Institute of New South Wales 1940 ALJ 563 Rich J at 563 stated a common law test in relation to professional misconduct which has stood the test of time: "A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction." 17 The Tribunal formally finds the complaints in relation to the Wild Estate established and that the facts proved in relation to the three complaints individually establish that the Practitioner is guilty on three counts of unsatisfactory professional conduct. When these three findings are looked at together bearing in mind the terms of s127 (1) they clearly show conduct that involves both a substantial and a consistent failure to reach reasonable standards of competence and diligence and the Tribunal finds that together they justify one finding of professional misconduct. III. Estate of the late Hazel Wymer: 18 There are four grounds of complaint in this matter as follows: a. The Practitioner grossly delayed in finalising the distribution of the estate of the late Hazel Wymer ("Wymer estate"); b. The Practitioner grossly delayed in rendering a memorandum of costs and disbursements to the executors of the estate until 17 December 2002; c. The Practitioner failed to provide a final accounting to the executors in respect of monies received and disbursed by the Practitioner on behalf of the estate until 17 December 2002; d. The Practitioner failed to take any steps to recover party/party costs awarded to the estate in respect of litigation with Mullaley Properties Pty Limited relating to the sale of the estate property known as 77 Kurnell Road, Cronulla despite charging the estate costs and disbursements in the sum of $18,825.02. 19 The Sayer report stated that the Practitioner acted for the executors of the estate and that Probate was granted on 22 September 1992 with ten beneficiaries equally sharing the residue of the estate. The Practitioner took over the carriage of the administration of the estate from another firm of solicitors in late October 1993. 20 There was litigation between the executors and Mullaley Properties Pty Limited in relation to the sale of a property at 77 Kurnell Road, Cronulla which was an estate asset. Those proceedings concluded on 14 December 1993 when the company's Summons was dismissed with costs. Ms Sayer found no evidence to indicate that proceedings were ever instigated to recover those costs although there was mention of the outstanding costs owing to the estate in a letter from the Practitioner to all beneficiaries dated 12 May 1994 when an interim payment was sent to beneficiaries. That reference was: "We would point out that this does not represent the final payment, there are still monies held by us pending the collection of costs awarded in the Court case prior to Christmas and advice being received concerning the potential liability of the estate for capital gains tax." 21 The Kurnell Road property was sold and the Practitioner's costs in relation to the sale were drawn on the Trust account on 10 May 1994. 22 Ms Sayer reports that the first interim distribution was made to the beneficiaries in the estate on 12 May 1994. The Trust account ledger shows the drawing of ten cheques on that day, each for $27,000.00. The ledger shows a credit balance as at 24 May 1994 of $26,781.73. Ms Sayer reports that the Practitioner prepared a Trust account statement as at 24 May 1994 which it appears he sent to one of the executors, Mr McAuliffe. The Practitioner wrote to Mr McAuliffe on 1 September 1995 concerning amounts due to him as Executor for expenses of $3,707.36 and advised that as at the date after deduction of the monies due to Mr McAuliffe, a balance of approximately $11,000.00 was held in the Trust account. The Practitioner advised that he was in a position to release a further $1,000.00 to each of the ten beneficiaries and his letter states that a cheque in favour of Mr McAuliffe for $4,707.36 was enclosed. That cheque was entered in the ledger but Ms Sayer was unable to say whether the letter and cheque were sent to Mr McAuliffe as the cheque was not presented and was reversed on the ledger on 30 June 1996. Mr McAuliffe wrote to the Practitioner on 15 October 1997 and requested a replacement cheque. He attached a summary of calls he had made to the Practitioner concerning the estate between 26 August 1997 and 3 October 1997 to which he had had no response until the last of those calls. A replacement cheque for $4,707.36 was drawn on the Trust account on 21 December 1997. Cheques for payment to the remaining nine beneficiaries of $1,000.00 each were not drawn until 31 August 1998. 23 After the distribution of $1,000.00 was paid to the nine beneficiaries, the Trust account had a credit balance of $17,958.63 for the estate and in relation to the litigation a credit balance of $2151.75 which had been incorrectly credited to the litigation ledger. Ms Sayer reported that there are no statements issued to the beneficiaries beyond that of May 1994 and no bill of costs was contained in the Practitioner's file. A file note indicated that the Practitioner estimated costs due to him of about $12,000.00 and if correct that would still have left a balance due to the beneficiaries. Ms Sayer could find no apparent reason why the estate had not been completed and a bill of costs prepared and submitted to the executors. 24 Mr Murdoch reported on that on 17 December 2002 there had been no change in monies held on behalf of the estate in relation to the proceedings with Mullaley Properties and the administration of the estate. The balance held for the estate had remained the same for over four years. On Mr Murdoch's visit the file still contained no evidence of any action to recover the costs awarded in the litigation against Mullaley Properties. Mr Murdoch found correspondence in the file relating to its distribution in the estate dated 17 December 2002 being the date of his inspection. On 17 December 2002 the Practitioner issued a memorandum of costs and disbursements to the executors in the sum of $10,000.00 profit costs and $1,075.02 disbursements. This account included matters relating to the administration of the estate and the litigation with Mullaley Properties. Mr Murdoch also produced a copy of a letter dated 17 December 2002 from the Practitioner to Mr Jofland as one of the executors of the estate, which letter encloses the account and the proposed distribution of the monies in Trust showing a balance available for distribution of $9,035.36. One of the annexures to Collins 1 shows that this balance was distributed amongst the beneficiaries on 17 March 2003. Practitioner's Affidavit: 25 In his affidavit sworn 15 April 2005 the Practitioner in relation to the matter deposed to the following: "Mullaley Properties Pty Ltd was the other party in proceedings in the Supreme Court. The proceedings involved a contract entered into by the estate prior to my receiving instructions. The result of the proceedings was that the estate was able to have the contract terminated and then resold the property at a substantially higher price. There was no order for costs made and having regard to the nature of Mullaley Properties Pty Ltd., the principal of which was well known to Wal Josland, the prospects of recovering costs, assuming the court would have, on application, made a costs order were not considered great." 26 This is clearly wrong. There was no question of seeking a costs order, there was a costs order of 14 December 1993 and the Practitioner's denial is quite extraordinary and concerns the Tribunal greatly for it is a very simple matter of fact readily checked by the Practitioner should he have wished to read Ms Sayer's affidavit where a copy of the court order is annexure C5 on page 77. 27 In answer to his Counsel on 8 June 2005 the Practitioner accepted that a copy of the court order including the costs order was true and correct. His explanation of his failure to recall the order was: "I recall Mr Bruce Ryrie making comment that we hadn't been ordered costs." 28 The evidence is clear and admitted in relation to the first three of the four complaints relating to this estate. The delays went on and on – phone calls and a letter from one of the Executors in 1997 did not produce finalisation and the accounting necessary. The unrelated s152 notice which should have alerted the Practitioner to his overall responsibilities, the investigation by Ms Sayer and her March 2000 report including a report on this file came and went with no action by the Practitioner, just inaction and delay. Mr Murdoch's visit in December 2002 got the Practitioner moving and final distribution occurred in March 2003. The gross delay and the "failure" referred to in the first three counts are all very clearly made out and the delays and the failure are such that each on its own constitutes professional misconduct within the Allinson and Kennedy (supra) concepts. 29 The separate complaint in relation to recovery of costs related to inaction in relation to recovery of costs dated back form the order for costs on 14 December 1993 and continuing. The "collection of costs awarded in the Court Case" was mentioned in the Practitioner's letter to all the beneficiaries of 12 May 1994. He simply did nothing and his subsequent suggestion that there was no costs order is extraordinary to say the least. The complaint is established, the inaction is inexcusable and gross, it is misconduct that is an affront to the members of an honourable profession. Clearly, in the view of the Tribunal, this fourth count by itself constitutes, and justifies, a separate finding of professional misconduct. IV. Estate of the late Jean Margaret Bower: 30 The three grounds of complaint particularised in relation to this estate are as follows: a. The Practitioner grossly delayed in finalising the Estate of the late Jean Margaret Bower; b. The Practitioner grossly delayed in rendering a memorandum of costs and disbursements to the executrices of the estate until 23 February 2000; c. The Practitioner failed to provide a final accounting to the executrices in respect of monies received and disbursed by the Practitioner on behalf of the estate until 4 February 2003. 31 Ms Sayer states that the deceased died on 16 February 1995 and that the Practitioner acted for the executrices in obtaining a grant of Probate on 27 June 1995. The specific bequests were paid in September 1995 and the assets of the estate available for distribution were collected into the Practitioner's Trust account on 5 March 1996 and there was then a balance in the account of $12,378.13. On 6 March 1996 a cheque for $3,185.00 was drawn on the Trust account payable to the Practitioner and recorded as "repayment of advance". This advance by the Practitioner was made for funeral expenses. 32 The balance remaining in the Trust account ledger for the estate as at 14 August 1996 was $9,210.43. Ms Sayer found a bill of costs and trust account statement dated 23 February 2000 in the file showing costs drawn by the Practitioner of $2,603.20 and a final distribution to the beneficiaries. A balance of $9,210.43 remained in the Trust account as at the date of inspection on 29 February 2000. 33 Mr Murdoch's evidence was that on 17 December 2002, namely six years after the balance first appeared in the Trust ledger, that balance of $9,210.43 remained in credit of the estate. Mr Murdoch requested late in December 2002 that the Practitioner provide documentary evidence to confirm his payment of funeral expenses of $3,185.00. On 24 March 2003 the Practitioner provided Mr Murdoch with copies of correspondence which indicated the distribution was made 4 February 2003 and also addressed his request for evidence of payment of funeral expenses. 34 The pattern of misconduct by the Practitioner is repeated often in these complaints. The evidence is of delay in providing a final accounting from at least August 1996 to February 2003, and in providing a memorandum of his costs from August 1996 to February 2000. The passage of years is disgraceful and there is no explanation or excuse for such gross delays. The three grounds of complaint are established and in the Tribunal's view individually they each constitute unsatisfactory professional conduct but when looked at together they constitute professional misconduct bearing in mind the terms of s127 (1 ) they clearly show conduct that involves both a substantial and a consistent failure to reach reasonable standards of competence and diligence V. Estate of the late Andrew Christopher Hanley 35 There is one ground of complaint in relation to this estate namely: a. The Practitioner delayed in finalising the distribution of the estate of the late Andrew Christopher Hanley. 36 The evidence relied upon by the Society was contained in the verified report and annexures of Ms Sayer who reported that the Practitioner acted for the Executor of the deceased who died on 31 March 1994 and that Probate in his estate was granted on 28 June 1994. Ms Sayer stated that by 28 February 1995 "all monies received in respect of realisation of the assets of the estate were available to be disbursed and the estate was virtually completed;" The Practitioner wrote that day to the executor advising that he was holding $5,000.00 in Trust pending receipt of a final taxation clearance and the final amount for income tax of $15.50 was paid on 19 September 1995, leaving a balance on or behalf of the estate in a controlled money account of $5,561.35. On 21 May 1996 the executor wrote to the Practitioner referring to his instructions in February of that year for the estate to be wound up and to his subsequent two visits to the office of the Practitioner and six unreturned phone calls all designed to resolve the matter. On 8 May 1996 one of the three residuary beneficiaries, the Cancer Council, also wrote to the Practitioner enquiring as to the position of the estate. On 25 June 1996 the Practitioner made a final distribution and he wrote on 19 July 1996 to the executor advising him that the monies had been distributed and the matter was completed. Ms Sayer could find no apparent reason for the delay in completing the estate beyond 19 September 1995 when the tax was paid. 37 The evidence in relation to this file was admitted as was the evidence against the Practitioner in the other matters except where isolated issues are raised in this decision. The delay in this one complaint is from September 1995 until 19 July 1996. It is not appropriate to compare this delay with delays in some of the other estates handled by the Practitioner for that might lead inevitably to this complaint not being dealt with as seriously as it deserves. 38 The delay of nine months in finalising the estate is unacceptable. There is no explanation, no event referred to which might explain the delay and the Tribunal finds the delay established and that the delay constituted unsatisfactory professional conduct. VI. Estate of the late Iris Mavis Swain. 39 The Practitioner's handling of this estate on behalf of the executor was the subject of four specific complaints by the Society as follows: a. The solicitor grossly delayed in finalising the distribution of the estate of the late Iris Mavis Swain. b. The solicitor grossly delayed in rendering a memorandum of costs and disbursements to the executor of the estate until 17 January 2000. c. The solicitor failed to provide a final accounting to the executor in respect of monies received and disbursed by the solicitor on behalf of the estate until 17 December 2002. d. The solicitor failed to realise monies invested by the deceased in a bond with the Manchester Unity IOOF despite being informed of the amount of the bond and the procedure to collect the money by letter from Manchester Unity to the solicitor dated 22 December 1987. 40 The verified report of Ms Sayer detailed that the deceased died 2 October 1987 leaving a Will under which she appointed her son, Peter, to be executor and after a specific bequest of jewellery divided the rest of her estate between Peter and his sister, Isabelle. It was not necessary to obtain a grant of Probate. Personal effects were valued at an estimated $4,000.00 and the bank accounts and an interest in a deceased estate were valued in total at $17,086.17. These amounts do not include the Manchester Unity bond. Monies from the deceased's accounts with ANZ Bank, her interest in the deceased estate and a Medicare refund were paid into the Trust account and after payment of the deceased's liabilities a balance remained in the Trust account at 31 May 1998 of $4,873.36. Ms Sayer reported this same amount as still being the balance of the Trust account ledger for this matter at the date of her report of 21 March 2000. There is inconclusive evidence in relation to monies paid out on the closure of a St George Building Society account in 1988 and although that has been particularised, the material before the Tribunal does not clarify what happened to the $13,277.05 involved. The St. George money does not appear to relate to the four specific complaints made in relation to the Practitioner's conduct. Ms Sayer further stated that the Practitioner wrote to the executor on 17 January 2000 but that that letter makes no reference to the solicitor's bill of costs of the same date which Ms Sayer says does not appear to have been sent to the executor. This is supported by the Practitioner's letter to the executor dated 17 December 2002 annexed to Mr Murdoch's report in which the solicitor said inter alia: "Two things, however; The first is that I am still holding an amount of $4,873.36 on behalf of your mother's estate and I have not drawn this money, wanting to basically leave it there for a rainy day as costs. I am now in a position, however, where I must draw the money and accordingly I enclose a memorandum of costs and disbursements that was prepared back in January 2000 and would like to have your authority to draw that money out of Trust and then I will forward to you the balance as set out in the enclosed draft Trust Statement. If you could let me have your authority, it would be appreciated." The "second thing" related to the St George Bank account which is outside the area of the complaints before the Tribunal. 41 Mr Murdoch's verified report stated that as at 17 December 2002 four years and six months after the balance of $4873.36 first appeared in the Trust account the balance remained the same and there has been no variation to the Trust ledger card from the time of Ms Sayer's report. Mr Murdoch's evidence was that the Practitioner informed him that documents and correspondence relating to a final distribution were in the course of preparation at the time of his visit on 17 December 2003. On 24 March 2003 the Practitioner provided Mr Murdoch with copies of correspondence to show that the distribution was made on 4 February 2003. The Trust account statement of 17 December 2002 shows that the long-held balance of $4873.36 was to be paid out as $3074.00 in payment of the Practitioner's costs and disbursements and the balance of $1,799.36 to the Executor. 42 The evidence from Ms Sayer in relation to the Manchester Unity investment was that the Manchester Unity had written to the Practitioner on 22 December 1987 detailing the investment and specifying the requirements to enable the investment to be paid out. At the time of the report Ms Sayer was not able to specify whether the Manchester Unity moneys had been collected by the Practitioner as there was no record of this. Subsequently, Manchester Unity wrote to Ms Sayer on 3 May 2000 advising the investment had not been realised and enclosing a withdrawal form which Ms Sayer sent to the Executor so he might collect the proceeds of the investment. 43 The resolution of the Manchester Unity investment was the subject of a second report of Ms Sayer annexed to her Affidavit of 11 November 2004, that report being dated 5 May 2000. 44 The facts alleged are admitted by the Practitioner. The Tribunal is concerned initially as to why it took from October 1987 when the deceased died until 31 May 1998 for the final balance in the estate to be calculated but that is not explained. The delay is then established from 31 May 1998 to the date of Ms Sayer's report of 21 March 2000 and beyond to the day of Mr Murdoch's visit to the Practitioner's office on 17 December 2002. At last on 4 February 2003 a final distribution is made having been preceded by the long delayed memorandum of costs and disbursements (17 January 2000) and the final accounting (17 December 2002). These specific delays are established. They are gross delays and the failure to account is a serious one. The Tribunal finds applying s 127(1) of the Legal Profession Act that these three complaints are established individually as each constituting unsatisfactory professional conduct and that together the three amount to one finding of professional misconduct as the Tribunal finds that the Practitioner's conduct involves both a substantial and a consistent failure to reach reasonable standards of competence and diligence. 45 The fourth complaint reflects long-term neglect by the Practitioner of his duty. The solicitor received details from Manchester Unity by letter dated 22 December 1987 and nothing was done in relation to this asset until Ms Sayer organised payment out by the Manchester Unity in May 2000.The Tribunal finds the complaint established and that the thirteen year inaction by the Practitioner constitutes professional misconduct in that it is "disgraceful" (Allinson) and "amounted to grave impropriety" (Kennedy – both supra) and also meets for example the tests in Section 127(1) in the event that the Tribunal is in error in classifying this conduct as professional misconduct in the common law sense for otherwise the elements of unsatisfactory professional conduct are clearly made out and the required "substantial" failure (and a "consistent failure" ) "to reach reasonable standards of competence and diligence" are all met. It is basic common sense to expect all Practitioners to regularly check through their files to see that active files remain active and in that process to look into the file beyond the top page of the correspondence if a Practitioner wishes to reach reasonable standards of "competence and diligence". VII. Estate of the late Beatrice Banks Turner 46 One complaint was raised against the Practitioner in respect of this matter in the following terms: "The solicitor grossly delayed in rendering a memorandum of costs and disbursements to the executors of the estate". 47 The Society relied upon the verified report of Ms Sayer of 21 March 2000. 48 Ms Sayer's evidence was that the deceased died on 4 May 1996 and that the Practitioner acted for the executors in an application for a grant of probate which was made on 9 December 1996. The Will was contested and the proceedings settled and Consent Orders made in the Supreme Court on 27 May 1999 after the payment of monies required by the Consent Orders there remained in the Trust account a credit balance of $5,576.15 as at 30 June 1999. 49 Ms Sayer reported that the Practitioner wrote to one of the executors on 15 June 1999 and advised inter alia: "A rough estimate of the costs involved in the administration of the estate and defence of the proceedings is in the order of $5,500.00 … on the writer's return from leave a final, and accurate, calculation of the costs will be able to be made." Ms Sayer found a draft bill of costs in the file for the sum of $5,445.20 but there was no indication that the bill was finalised or sent to the client and there was no further correspondence in the file subsequent to 15 June 1999. Finally Ms Sayer calculated that if the draft bill represented the final account then, apart from payment of that sum, there remained a balance in the Trust account for this matter of $130.95. 50 Once more, the evidence is admitted and there is no specific explanation or excuse offered by the Practitioner. The amount involved was $1,258.00 but what is important is the delay of some thirteen years. It is established, it is gross, it satisfies the tests of professional misconduct already referred to. No beneficiary should be deprived of an entitlement, albeit a small entitlement, for that length of time and the failure of the Practitioner amounts to professional misconduct. VIII. Estate of the late Lilian Edna Davis 51 The information lists five grounds of complaint arising out of this file as follows: i. The solicitor grossly delayed in finalising the distribution of the estate of the late Lilian Edna Davis. ii. The solicitor grossly delayed in rendering a memorandum of costs to the executor of the estate until 4 April 2000. iii. The solicitor failed to provide a final accounting to the executor in respect of monies received and disbursed by the solicitor on behalf of the estate until 4 April 2000. iv. The solicitor failed to inform the residual beneficiary, Audrey Edna Riley, of the fact that he held funds in his Trust account to which she was entitled to a one third share therein. The funds represented the sale proceeds arising from the sale of an estate property at Gymea. v. The solicitor failed to diligently follow up with the executor in respect of the investment and disbursement of the funds held in the solicitor's Trust account after 28 October 1999. 52 The Society relied on the evidence in a verified report of Ms Sayer of 21 March 2000 and the verified report of Mr Murdoch. 53 The deceased died on 2 September 1992 and the Practitioner acted for her son who was the executor of her Will on the Application for Probate which was granted 4 December 1992. The assets of the estate were sworn at $188,041.42 gross, the principal asset being a home at Gymea estimated at $180,000.00. The Will provided for payment of seven legacies, each of $1,500.00, to nominated grandchildren and for equal division of the deceased's furniture, furnishings and personal effects between three named beneficiaries. The Will provided for the deceased's grandson with his wife to have the right to buy the Gymea property on nominated terms. Ms Sayer produced a copy of a letter from that grandson declining to purchase the Gymea property. The Will provided ultimately that on sale or transfer to the grandson, the proceeds of the Gymea property would be divided as to two thirds to the executor and as to the remaining one third to the deceased's daughter. The Tribunal has outlined these terms of the Will because it is unclear from the material as to whether the executor who is the major beneficiary may well have been the cause in some part at least of the delay. 54 Ms Sayer's evidence is that the grandson in a letter dated 29 September 1992 declined to purchase the Gymea property. The proceeds of bank accounts received in the Trust account in May 1993 covered payment of $500.00 each to the grandchildren in part payment of their legacies. The executor provided the Practitioner with monies to pay the balance due to three of the grandchildren and Ms Sayer reports that the correspondence indicates that the executor may have paid the balance due direct to the other four grandchildren. 55 The Practitioner informed the executor in a letter dated 30 April 1998 that all that remained to finalise the estate was the sale of the property and he suggested that the executor purchase his sister's interest. That did not occur and ultimately the property was sold for $260,000.00 about 26 May 1999, the sale being completed on 4 August 1999 and the proceeds were paid into the Practitioner's Trust account. 56 Ms Sayer's evidence is that notes found by her relating to a conference with the executor on 29 July 1999 indicated that the monies were to be received into the Trust account and "then divided amongst members of the family". The Tribunal takes this to mean between the executor and his sister in accordance with the provisions of the Will. Matters resolved at that conference were detailed in a letter from the Practitioner to the executor of 29 July 1999. Notwithstanding that, the proceeds remained in the Trust account from 4 August 1999 until the date of Ms Sayer's report of 21 March 2000. 57 The Practitioner had on 28 October 1999 written to the executor suggesting that if the estate proceeds were not to be disbursed shortly that they should at least be invested in an interest-bearing deposit rather than remain in the Trust account where no interest was accruing. Ms Sayer found no evidence of any correspondence with the other beneficiary, being the executor's sister. Ms Sayer also quotes in her report clause 7 of the Will of the deceased, which was in the following terms: "I have made less provision in this my Will for my daughter the said Audrey Edna Riley because when I was ill and needed assistance her husband Jack Riley would not have me in his house and therefore less consideration should be given by me to those people who have shown less consideration for me." Ms Sayer points out that Mrs Rileys' share of about $80,000.00 was effectively denied to her for this period but she accepted that the executor had not given instructions to disburse the monies held in the Trust account. Her comment in terms that as solicitor for the estate the Practitioner "maybe should remind him [the executor] of his executorial duties so far as the interest of his sister is concerned." 58 In his report, Mr Murdoch referred to Ms Sayer's evidence of the executor not having given instructions to distribute the monies following completion of the sale on 4 August 1999 and also of the Practitioner suggesting investment in an interest bearing deposit in his letter to the executor of 28 October 1999. The report disposes of the matter with the comment "It appears that the difficulty was resolved as the file now demonstrates that a distribution took place on 4 April 2000". The file material produced by Mr Murdoch shows the provision of an accounting for the proceeds and letters to, amongst others, the executor's sister dated 4 April 2000 with a cheque for her share of the proceeds. 59 Practitioner's Affidavit: In his affidavit of 15 April 2005 the Practitioner deposed in relation to this matter: "At all times the actions taken were in accordance with the instructions of the executor. No final accounting could be done until the estate was finalised, that is, until the executor directed the payment of the monies. Annexed and marked "A" is a copy of a letter from the executor dated 21st March 2005." 60 "The difficulty" referred to by Mr Murdoch was not clarified by the evidence, indeed that there was a "difficulty" may simply be speculation by the investigator. The annexure referred to by the Practitioner was a letter signed by RJR Davis JP and the material part is as follows: "I wish to confirm that at the conclusion of the sale of her property, I instructed Mr Swane to hold in trust the monies received until all family matters were finalised. The request was with the knowledge and full support of my sister, Mrs Audrey Riley." 61 The Tribunal having considered the facts established and the letter from the executor is not satisfied that the complaints have been made out. The applicable standard of proof is the civil standard. In Briginshaw v Briginshaw [1938] 60 CLR 336 Dixon J (as he then was) said at 361: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction " should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency." At 362 Dixon J continued: "This does not mean that the same standard of persuasion is fixed intermediate before the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability." 62 It is clear that the Practitioner was instructed not to finalise the estate and, indeed, any implications that may be taken to have included the appropriate accounting and the rendering of his costs and disbursements. The fourth complaint relates to failure to notify the residuary beneficiary but the answer there is that the residuary beneficiary from the terms of the executor's letter, knew of and in effect supported the delay. The Tribunal appreciates that clients may for their own reasons not wish to receive moneys due to them as soon as the payment may be made. The experience of Tribunal members is that such requests are made by clients form time to time for any number of reasons and sometimes for unspecified reasons. The Tribunal cannot be satisfied on the evidence that any misconduct has occurred and accordingly all five complaints relating to the Practitioner's handling of this estate are dismissed. IX. Estate of the late John Junk 63 Particulars to the information detail two grounds of complaint against the Practitioner arising out of his handling of this file. The terms of the allegations are: i. The solicitor grossly delayed in finalising distribution of the estate of the late John Junk. ii. The solicitor delayed in providing a final accounting to the executor in respect of monies received and disbursed by the solicitor on behalf of the estate until 16 December 2002. 64 Once more the Society relied on the reports of Ms Sayer and Mr Murdoch in relation to these allegations. Ms Sayer's evidence was that the Practitioner acted for the executors of the deceased who died on 21 March 1991 in relation to a grant of Probate which was made on 18 June 1991. By 20 January 1995 all assets in the estate had been realised and there remained a final distribution to be made to the beneficiaries of the remaining funds held. After a distribution to beneficiaries in January 1995 there remained a balance in a controlled money account of $5783.48 which was transferred to the Practitioner's Trust account on 24 July 1995. Ms Sayer found no evidence of any further activity in this matter after that transfer and the balance remained of $5,783.48 in the Trust account at the time of her inspection in February 2000. 65 Mr Murdoch reported from his inspection of the file on 17 December 2002 that in November 2001 a party who was indebted to the deceased in a sum secured by caveat on her title wished to re-finance her mortgage on her property and ultimately a sum in excess of $33,187.33 was received into the Practitioner's Trust account on the withdrawal of that caveat. On 16 December 2002 which was the day before Mr Murdoch's inspection and some three months after payment of the monies protected by caveat the Practitioner accounted for all monies held. Mr Murdoch's report annexed a copy of the memorandum of costs and disbursements from the Practitioner to the executors, a copy of the Trust account statement in relation to the estate and to a letter addressed to four beneficiaries. All of these documents were dated 16 December 2002. 66 Practitioner's Affidavit: In his affidavit sworn 15 April 2005 the Practitioner said in relation to this matter: "Part of the assets of the estate consisted of monies due from a niece of the deceased in South Australia. No finalisation of the estate could occur until they were paid. Once they were paid in September 2002 then the manner in which monies held should be disbursed was put to and approved by the executors with the final accounting and distributions taking place shortly thereafter." 67 The Tribunal does not accept that the Practitioner could properly delay completion of administration of the estate until the debt owing by a niece in South Australia was paid. The delay, ignoring the debt from the niece, is from January 1995 to the impetus of a visit from Mr Murdoch in December 2002 which was about three months after the niece's payment was received. The finalisation and final accounting corresponded with Mr Murdoch's 16 December 2002 visit. 68 The estate as it existed was available for distribution in January 1995 and there is no justification for the beneficiaries being denied the benefit of their then available entitlement for a period of seven years. There is no justification for the Practitioner delaying his accounting for the balance held in January 1995. The Tribunal finds both complaints established and that the Practitioner's conduct fits in relation to both complaints within the concept of "professional misconduct" as already referred to above in Allinson and in Kennedy. In the circumstances the Tribunal finds professional misconduct established on each of these two grounds. X. Advance Bank mortgage to CJ and JR Wildman 69 The complaint made against the Practitioner in relation to this matter is as follows: i. The solicitor grossly delayed in accounting to Colin James Wildman and Janice Robyn Wildman in respect of an amount of $4,067.00 received by him on their behalf. 70 The evidence of Ms Sayer is that the Practitioner acted for the Advance Bank in relation to a proposed mortgage advance to Mr and Mrs Wildman over a property owned by them with a collateral security over a property being purchased at that time. Mr and Mrs Wildman had an existing Advance Bank mortgage which was to be upstamped to accommodate an additional advance. The Practitioner received into his Trust account the sum of $4067.00 on 13 February 1997 to pay the additional stamp duty. The mortgage arrangement did not proceed beyond the first drawdown on 7 February 1997 and all monies owing to the Bank were repaid by Mr and Mrs Wildman on 13 February 1997. No action was taken in relation to the stamp duty monies in the Practitioner's Trust account from 13 February 1997 to the date of Ms Sayer's inspection on 29 February 2000. Ms Sayer produced a copy of a file note from the Practitioner's records dated 7 March (the year is not specified, but is thought by Ms Sayer to be 1997) and that was not challenged. The note related to a message from an officer of Advance Bank advising all securities had been released on sale of another property by Mr and Mrs Wildman and the deeds handed to another Bank as Mr and Mrs Wildman were not taking up the balance of the Advance loan. Ms Sayer produced a copy of a letter dated 10 January 2000 from the Practitioner to St George Bank Limited (with which the Advance Bank had merged in the meantime) confirming that he had ascertained that the Bank had advised that the borrowers did not proceed with the full loan but that the stamp duty on the advance remained in his Trust account. The letter sought confirmation that the full amount of the loan advance was never made and that stamp duty was not payable to the Government and that there were no monies owing to the Bank so that he might pay out the monies held in his Trust account to the borrower. The letter also requested payment of his agreed fees by his client Bank. 71 Mr Murdoch's Affidavit updates the situation and reports from his inspection on 17 December 2002 that the file contained a letter dated 17 March 2000 from the Practitioner to the borrower's solicitors forwarding a cheque for the sum of $4067.00. Practitioner's Affidavit: 72 In his affidavit sworn 15 April 2005 the Practitioner said in relation to this matter: "I did not have the carriage of this matter and the explanation given to me concerning the money was that it may still have to be paid as stamp duty depending on what facilities the Advance Bank had provided. The money could not be paid to the Wildmans until I received confirmation that there were no such facilities in place." 73 In cross-examination on 8 June 2005 the Practitioner was asked a series of questions about this matter: Q. "Turn to Ms Sayer's report, page 32, Advance Bank mortgage to Wildman." A. "Yes" Q. "Had you at any time mentioned to the Society what you said in the Affidavit?" A. "No". Q. "The question of monies remaining in your Trust Account of approximately $4,000 was first raised by a Trust Account Inspector?" A. "I don't know" Q. "Amount of $4,067 was full mortgage stamp duty on advance of $1.29 million?" A. "Yes" Q. "There was a drawdown of part of the mortgage advance?" A. "Yes, there was." Q. "In any case, full duty would not have been payable?" A. "I didn't have confirmation from Advance Bank of the actual amount paid." Q. "Did you indicate this to anyone?" A. "I cannot recall". 74 The Practitioner clearly left in his Trust account a sum of $4,067.00 from February 1997 until March 2000. His file indicated a message in March 1997 which should have prompted action by the Practitioner to finalise the matter and account for the monies he held. He did but not for nearly three years. It would appear that some of this money should have been used for upstamping for part of the loan was drawn down but that may have been paid from some other source by Mr and Mrs Wildman and the issue is not before us. The delay is before us. The Practitioner's "explanation" above is simply not acceptable. The evidence is of inaction. The delay is gross and is established as such and the Tribunal finds that it constitutes professional misconduct in terms of the usual tests. XI. Milsky Pty Limited 75 There are two complaints in relation to the Practitioner's conduct in this matter and these are: a. The solicitor delayed in accounting to Milsky Pty Limited in respect of the amount of $8,636.00. b. The solicitor grossly delayed in rendering memoranda of costs and disbursements to Milsky Pty Limited in respect of the sale of Lots 1 and 2, 339 Woolooware Road, Cronulla until 5 March 2002. 76 Ms Sayer's evidence was that the Practitioner acted for Milsky Pty Limited in relation to the sale of Lots 1 and 2, 339 Woolooware Road, Cronulla. Following the settlement of the sale of Lot 2, the sum of $5,000.00 was paid to the Practitioner's Trust account on 7 May 1997 to cover plumber's charges for re-locating the water supply and meter. On the day of receipt of the monies, an amount of $3015.00 was paid to the plumber leaving a credit balance in the Trust account in relation to the sale of Lot 2 of $1985.00 which remained in the account as at the date of Ms Sayer's inspection on 29 February 2000. Ms Sayer also produced a letter dated 6 May 1997 from the solicitor for the purchaser of Lot 2 confirming that the Practitioner was to pay the plumber the sum of $3015.00 and confirming that the Practitioner was "at liberty to release to your client the balance of the $5,000.00 retention sum". 77 The evidence of Ms Sayer also gave details of the solicitor acting for the same company on the sale of Lot 1 and following the settlement on 15 April 1997 the sum of $15,000.00 remained in the Trust account until 28 April 1997 when Land Tax of $8349.00 was paid leaving a balance in the account of $6651.00 which remained in the Trust account as at the date of Ms Sayer's inspection so that from the sales of Lots 1 and 2 the total of $8636.00 remained unaccounted for until 29 February 2000. 78 Mr Murdoch's evidence updated the situation to cover events after the Sayer report. His evidence is that the file contains a memorandum of costs dated 5 March 2002, some four years and nine months after the balance of $1905.00 first appeared and that memorandum appropriated the whole of that sum to the Practitioner's costs and disbursements. 79 The other balance of $6651.00 was the subject of a number of separate accounts and transfers dated on or about 4 and 5 March 2002 which Mr Murdoch pointed out that these transfers occurred four years and ten months after the balance first appeared in the Trust account on 28 April 1997. Practitioner's Affidavit of 15 April 2005: 80 In his affidavit the Practitioner said in relation to this matter: "The monies were held by me in trust account to be able to be drawn down as costs in a later tax year. Thus tax would not have to be paid on those monies until a later time. There is no other explanation offered." 81 The delays here were gross and there may well be adverse taxation implications in the Practitioner's deferring income from one year to the next in this fashion but that is not in issue before us. In this instance the client has not been deprived of monies for a period of time though it may have been adversely affected in not having details of expenses that were almost inevitably tax deductible available in the year the same were incurred. This conduct by the Practitioner cannot be condoned for it is quite unacceptable from a member of an honourable profession. The complaints are established and the Tribunal finds that each complaint constitutes unsatisfactory professional conduct within the meaning of Section 127(2). XII. Diane Absalom as Tutor for Trent James and Grant Bradley Absalom. 82 The Society raised one ground of complaint in relation to this as follows: a. The solicitor breached Section 41 of the Legal Aid Commission Act 1979. 83 The Society relied on the evidence of Ms Sayer and the update evidence of Mr Murdoch. 84 Section 41 of the Legal Aid Commission Act 1979 is in the following terms: "Demand for or receipt of certain payments prohibited: (1) Despite any Act or Law to the contrary, the private legal practitioner is not entitled to charge or recover from a legally assisted person any amount: (a) By way of costs in respect of work assigned by the Commission to the private legal practitioner on behalf of that person, or (b) By way of disbursements incurred on behalf of that person in connection with that work except with the approval of the Commission. (2) A provision of any agreement (whether in writing or not or whether entered into before or after the commencement of this section): (a) Under which the operation of this section is excluded, modified or restricted, or (b) Which has the effect of excluding, modifying or restricting the operation of this section is void." 85 Ms Sayer's evidence was that the Practitioner acted for the tutor. Legal Aid was granted on 13 July 1994 to meet the reasonable necessary costs to resolve a dispute by mediation in relation to the ownership of an insurance bond and the terms of a Will. Legal Aid was also granted to cover litigation under the Family Provision Act 1982 and the matter was resolved by mediation arranged by the Commission on 21 December 1994. On 20 January 1995 the Commission wrote to the Practitioner noting the completion of the proceedings and informing him that he should retain in his Trust Account sufficient monies to meet all solicitor's costs and disbursements and counsel's fees including any accrual payable to the Legal Aid Fund. The Practitioner did not respond over a period of eight months to four separate letters up to 18 September 1996 and on 26 November 1996 the Commission advised that the grant of Aid had been terminated from 16 October 1996 by reason of his failure to reply to correspondence seeking information regarding the matter. 86 The copy Trust Account ledger in relation to the matter produced by Ms Sayer indicates that settlement monies of $50,000.00 were received on or about 31 May 1995 and on 3 July 1995 $10,000.00 was paid to David John Absalom, an older brother of the two infants represented by the Tutor. On 14 July Counsel's fees of $1,015.00 were paid in full from the Trust account and on 21 July 1995 payments were made to T Absalom, G. Absalom and D. Absalom, leaving a balance in the Trust account ledger of $5460.00. On 28 March 1996 those monies were transferred to the Practitioner's General Account as costs and disbursements. 87 Ms Sayer also produced the Practitioner's memorandum of costs and disbursements dated 28 March 1996 addressed to the Tutor detailing his professional costs of $5,000.00 and disbursements totalling $460.00. There is also a letter of 28 March 1996 addressed to the Tutor confirming the finalisation of the matter and enclosing memorandum of costs and disbursements and a Trust Account statement also dated 28 March 1996 which reflects the details listed in this paragraph together with crediting of a compulsory Legal Aid contribution of $40.00. The Trust Account statement shows a nil balance as at 28 March 1996. 88 The evidence of Ms Sayer was clear in terms that the Practitioner distributed the monies he received, as directed by the Tutor, and it is clear from correspondence that his accounting was at all times as if the Tutor were his client and he had no obligations to the Legal Aid Commission. 89 Mr Murdoch in his evidence advised that there were no developments at the date of his inspection at 17 December 2002 but clearly all relevant events had occurred as far as the complaints are concerned by the time of Ms Sayer's report. 90 The Tribunal finds the complaint established. The Practitioner was in clear breach of his statutory duty. The allegation is admitted and there is no explanation offered. This breach in the view of the Tribunal is "a grave impropriety affecting his professional character" in terms of Rich J. in Kennedy v The Council of the Incorporated Law Institute of NSW 1940 13 ALJ 563 at 563 and that the conduct of the Practitioner amounts to professional misconduct in this instance. XIII. Estate of the late Mollie Dunn 91 There are four grounds of complaint in relation to the Practitioner's handling of this estate. The complaints are: a. The solicitor grossly delayed in finalising the distribution of the estate of the late Mollie Dunn. b. The solicitor failed to and/or grossly delayed in collecting in the following assets of the estate: Australian Guarantee Corporation $10,000.00 AFT Units invested in ANZ Funds Management $9,137.00 c. The solicitor grossly delayed in rendering a memorandum of costs and disbursements to the executrix of the estate until 16 December 2002. d. The solicitor failed to provide any accounting to the executrix in respect of monies received and disbursed by the solicitor on behalf of the estate until 16 December 2002. 92 Ms Sayer's evidence was that the deceased died on 5 November 1989 and Probate of her Will was granted to the executrix on 15 August 1990. The Will provided for a specific bequest to a daughter-in-law and the residue was to be divided as to one half to the executrix and the remaining one half between three grandchildren. Ms Sayer also reported that the assets to be realised by the Practitioner included the two items referred to in the second ground of complaint in relation to this estate. 93 A house at Cronulla was sold and the sale completed on 15 June 1998. On about 31 August 1998 a first distribution was made by the Practitioner after he had deducted costs on the Cronulla sale and there then remained after the first distribution a balance in the Trust Account for the estate of $8,000.00. 94 The Practitioner wrote to ANZ Funds Management on 7 August 1998. Ms Sayer found in the Practitioner's file the record of a telephone message form ANZ Funds Management of 12 June 1999 advising that, while in the Practitioner's letter of 7 August 1998 he had mentioned the Certificate number, an investor number was needed. Also on 7 August 1998 the Practitioner wrote to Australian Guarantee Corporation concerning the release of a bond asking for requirements to be detailed so that the funds might be released and paid to the estate for distribution. Ms Sayer reported that there was no further correspondence or evidence of any action in relation to either the ANZ Funds Management or the AGC investments and that as at the date of her inspection on 29 February 2000 the balance of $8,000.00 remained to the estate's credit in the Trust account, that sum having been there since 31 August 1998. 95 Mr Murdoch's evidence indicated that there was no activity on the file from 31 August 1998 to 16 December 2002. Mr Murdoch did find an accounting to the executrix dated 16 December 2002, which was the day before Mr Murdoch's visit to the Practitioner's office. The Trust Account statement of that date recorded the deposit into the Trust account of eighteen interest payments from AGC but no recording of any realisation of the investment. The second last item on that accounting was the payment of the Practitioner's costs and disbursements of $4,280.00 and the final entry recorded payment to the executrix which left a nil balance. The supporting statement of professional costs and disbursements also dated 16 December 2002 was produced by Mr Murdoch and showed in short form lump sum professional costs of $4,000.00 plus disbursements of $280.00. 96 In answer to his Counsel on 8 June the Practitioner identified the closing statement of his Trust Account dated 30 May 2005 which showed two cheques having been drawn to close the account, namely: 12 May 2005 Cheque 3072 $3,720.00 16 May 2005 Cheque 3073 $4,280.03 In relation to the first of these cheques the Practitioner was asked: Q. "Can you tell us what that cheque was for?" A. "That was a cheque due to Mrs Jan Ives from Estate of her mother, Mollie Dunn" He said in response to a question about the second of these two cheques: "$4,280.03 was $4,280.00 costs in estate of Mollie Dunn and the three cents was an amount due to Mr Paul Moggridge for a cheque he had never presented. I spoke to Mr Moggridge and he said he wasn't going to present the cheque as the cost would be greater than the amount, so all I could do was to draw the money to close the account. I cleared this with Mr Partridge [separately identified as a Trust Account Inspector] yesterday and he told me to sign a letter confirming that I would pay the three cents if ever required." 97 In cross-examination the following further questions were put to the Practitioner: Q. "So far as the matter of Mollie Dunn is concerned, that was raised by the Society through letters from Mr Murdoch to you?" A. "Yes" Q. "Now that matter is complete and finalised?" A. "Yes." Q. "Any reason why matter not finished earlier? A. "Mrs Ives the person involved has been overseas. I could not get a response from her for five years. I contacted John Ives her brother and he put me in contact with Wal Ives who tried to contact Jan and Rick Ives without success. He said he had a bank account for Jan Ives he could put it in and that's what I did." 98 The absence overseas of Mrs Jan or Janet Ives clouds the issues here. She was the Executrix and the only evidence available is that she was overseas and the Practitioner made efforts to locate her. She was the person entitled to residual funds and the person to whom the Practitioner was required to account and to render his memo. We do not know when she returned from overseas. There is, on the evidence, no basis then to find the first, third and fourth complaints in relation to this estate established. 99 The evidence on the second complaint relating to AGC and AFT contain the necessary ingredients of gross delay. The Tribunal is unable to say whether these assets were ultimately realised. The absence of Mrs Ives and lack of knowledge of her whereabouts may have contributed to the Practitioner's inactivity. The evidence is not before us. The Tribunal having applied the Briginshaw test on standard of proof (see Supra) is not comfortably satisfied that this count has been established and it is accordingly dismissed. XIV. Breach of Section 55 of the Legal Profession Act. 100 The complaint is in terms that: "the solicitor hindered, obstructed or delayed a Trust Account Inspector in the exercise of his function." 101 In relation to this complaint the Society relied upon its direction dated 19 November 2002 appointing Mr Barrie Murdoch (referred to as "the investigator" in the paragraphs dealing with Item XIV) pursuant to s55(11) of the Legal Profession Act to investigate the affairs of the Practitioner and upon the affidavit of Mr Collins ("Collins1") and in particular to various documents annexed to that Affidavit. 102 The Collins1 affidavit disclosed a request on 18 December 2002 by the Investigator seeking the supply on or before 10 January 2003 of: a. Copies of bills of costs, final distribution statements and correspondence in relation to the estates of Swain, Bower and Wild that the investigator understood to be in the course of preparation on 17 December 2002; b. Three files relating to Milsky Pty Limited; c. File or copy correspondence in relation to the recovery of costs awarded to Jossland & McAulliffe against Mullaley Properties Pty Limited; d. An explanation supported by copies of relevant correspondence in relation to the realisation of three assets in the estate of Mollie Dunn, two of which are the subject of complaints above; e. Particulars of the account to which the proceeds of realisation of the three Mollie Dunn estate assets were credited; f. Land tax receipts for Estate late Mollie Dunn; g. File in relation to sale of real estate owned by the late Mollie Dunn; h. Proof of payment of legacy to Judith Dunn of $5,000 (in the Estate of Mollie Dunn); and i. Documentary evidence to confirm the Practitioner's personal payment of funeral expenses for Estate late JM Bower. 103 On 20 December 2002 Mr Murdoch also requested the Practitioner to supply on or before 10 January 2003 copies of the bill of costs, final distribution statement and associated correspondence in relation to the Estate of the Late Mollie Dunn prepared on 16 December 2002. 104 Mr Murdoch's letter of 5 February 2003 confirmed his telephone conversation with the Practitioner on 23 December 2002 when Mr Murdoch agreed to an extension of time for compliance with the requirements in those two letters to 31 January 2003. The letter confirmed non-compliance within that extended period and drew the Practitioner's attention to the provisions of Section 55 and in particular to the penalty provision applicable where a person hinders, obstructs or delays an Inspector in the exercise of his functions. Provision of the requirements by the Practitioner without further delay was requested. 105 On 11 March 2003 Mr Murdoch advised the Practitioner of the Society's resolution to make a complaint on what became this fourteenth count and requested the Practitioner's written response. 106 On 24 March 2003 the Practitioner responded to the letters of 18 and 20 December 2002. That letter advised in relation to the first letter that it enclosed documents which effectively were to satisfy the requirements in relation to the letter of 18 December 2002 items (a), (b), (f) (g) and (i), advice of details of payment of Westpac account not referred to in the complaints [which were part of (d) and (e) of 18 December 2002], and advice that the other two assets were not realised or received by him, [balance of (d) and (e)] together with correspondence required in relation to the letter of 20 December 2002. 107 The remaining items from the letter of 18 December 2002 were: (c) There is no separate file in relation to action for recovery of costs. The Practitioner advised that all material was in the file already inspected; (d) (i) An explanation of the Westpac account to establish that two accounts were closed at one time and were the subject of one cheque received by the Practitioner (this was the same Westpac accounts as are referred to above); (ii) An assertion that the AGC debenture was never received by the Practitioner; (iii) A copy of a transmission to the executor in respect of the ANZ Managed Fund units (h) Confirmation that there is no material showing the payment of the legacy to Judith Dunn. 108 Collins1 also annexed a letter of 26 March 2003 from Mr Murdoch to the Practitioner pointing out that the Practitioner had failed to respond to the letter of 11 March 2003 within the time that was prescribed and indicated possible cancellation of his Practising Certificate might be considered. The letter of 11 March 2003 sought a response to the complaint as part of the investigation by the Society of the complaint. 109 The reference in the particulars that the provision of all outstanding information did not occur until 10 March 2004 is not apparent from the material in Collins1 except insofar as a letter dated 4 March 2004 from the Practitioner and received by the Society on 8 March 2004 appears to deal belatedly with the remaining issues outstanding from the Investigator's report. 110 Section 55 provides, inter alia: (5) A person shall not hinder, obstruct or delay a trust account inspector or an investigator in the exercise of his or her function Maximum penalty: 10 penalty units (6) A solicitor or locally registered foreign lawyer who contravenes subsection (3) or (5) is, whether or not convicted for the contravention, guilty of professional misconduct. 111 The delay component is clearly established. The Practitioner sought and was granted an extension of time to comply with the request for information but did not do so within the extra time he sought. The Tribunal finds that the requests of Mr Murdoch were proper and the time allowed appropriate. The delay issue having been established, we find that the Practitioner is guilty of professional misconduct on this statutory ground. We do not find it necessary therefore to see if hindrance or obstruction were present also, thought the evidence does not appear from a superficial examination to support either of the alternate prohibitions in S 55(5). XV. Breach of Section 152 of the Legal Profession Act. 112 The complaint under this heading was "the solicitor, without reasonable cause, failed to comply with a notice issued to him under s152."The Act provides that this complaint, if established, constitutes professional misconduct. 113 The s152 Notice was issued and dated on 19 August 1999. In the Notice the Professional Conduct Committee in exercise of powers delegated to it by the Council of the Law Society required pursuant to s152 that the Practitioner (a) "To provide, verified by Statutory Declaration, the information set out in Schedule 1 hereto to the Manager, Professional Standards Department, Law Society of New South Wales by the 3rd day of September 1999; and (b) to produce, by 4 p.m. on the 3rd day of September 1999, the documents specified in Schedule 2 hereto to the Manager of the Professional Standards Department of the Office of the Department, 7th Floor, Law Society Building, 170 Phillip Street Sydney the following: Schedule 1 – The solicitor's written response to the complaint as notified to the solicitor in Professional Standards Department letter dated 15 April 1999 Schedule 2 – the solicitor's file in respect of acting in relation to the Estate of the late Hazel Wymer" 114 The s152 Notice was purported to be served by facsimile on the solicitor. The solicitor for the Society acknowledged that this did not constitute proper service. Personal service of the notice was effected on 24 August 1999 by Alan Webb, a Licensed Commercial Agent. 115 The first part of the s152 Notice was not particularised and is not regarded by the Tribunal as being a matter for its consideration. 116 The Tribunal has already dealt above with the three grounds of complaint against the Practitioner in relation to the Hazel Wymer Estate. It is noted the estate file is not one of the matters sought by Mr Murdoch in his letters of 18 or 20 December 2002 (matter XIV). It is apparent from his evidence that the file was produced to Mr Murdoch. It is clear that when Ms Sayer carried out her inspection the estate file was made available to her and she quotes from matters discovered in the file and produced documents from the file. 117 In cross-examination on 8 June 2005, the following transpired: Q. "Did you reply to the letter at p62?" A. "I don't recall." Q. "That is a letter to you enclosing a notice under s152 and that letter was also faxed to you." A. "If you say so". Q. "Some time afterwards a process server attended on you and gave you the original of that notice and letter?" A. "If you say so." Q. "Do you agree that affidavit says notice was served on 24 August 1999 (i.e. Affidavit of Service Exhibit 6)? A. "Yes" Q. "Please look at notice attached to exhibit 6 - did you comply with the notice by the time set out there?" A. "No." Q. "Did you contact the Law Society as to what is set out in Schedule 2 to the notice?" A. "No." Q. "Did you contact the Society and say 'I had a reasonable excuse as to why I did not reply to notice?" A. "No." Q. "Go back to exhibit 4 Mr Collins' affidavit [i.e. Collins1]. Look at page 64. The Society had resolved to take proceedings for failure to comply with notice?" A. "Yes." Q. "Did you respond to that letter?" A. "I responded to some of the matters subsequently." 118 In cross examination the issue of the Practitioner's health was raised as follows: Q. "Was it the same welfare officer who rang you a couple of times?" A. "I can't recall. A person rang and asked 'how are you coping?' Q. "Did you mention your depression?" A. "You don't like to admit it. I can't say I said I was depressed." Q. "You sought help from Dr Ayres – still your GP?" A. "Yes." Q. "There was a report from Dr Ayres that was put in proceedings last year." A. "Yes" Q. "Which anti-depressants and for how long?" A. "I had two or three courses, not very long. They were good, I felt much better but I did not like taking drugs." Q. "Can you explain for how long you have been depressed?" A. "I have to say ever since mid 1980's. I don't have a good night's sleep. Side effects unable to focus and to follow through. A solicitor is possibly described like sitting like a rabbit sitting in a spotlight." 119 The relevant provisions of s152 are s152(1), s152(3), s152(3A), s152(4), s152(5) and these are as follows: 152. Powers of Council or Commissioner when investigating complaint: (1) For the purpose of investigating a complaint a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following: a. to provide written information, by a date specified in the notice, and to verify the information by statutory declaration, b. to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, c. to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner… (3) A notice is served under this section on a legal practitioner if: (a) it is served personally on the practitioner, or (b) it is sent by post to the practitioner's place of practice, business or residence last notified by the practitioner to a Council. (3A) A notice under this section is to specify a reasonable time for compliance with the requirement. (4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. (5) A legal practitioner must not mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct. 120 The provisions of the statute are clear. The Society's attempt to satisfy the service requirement s152 (3) by faxing the practitioner was acknowledged at the hearing as being ineffective. The issue of what is "a reasonable time for compliance" is, the Tribunal holds to be looked at not simply by calculating the number of days between the date of issue of the notice and the date fixed for compliance. Insofar as the number of days is concerned, the tribunal holds that the period between, if the notice is served personally, the date of service and the date fixed for compliance are critical. Equally critical is the nature of the information, the nature and location of any document(s) required or the nature of the assistance or co-operation required. This notice required two things. The requirement of a written response to a complaint involves the section being able to be used as an investigatory tool which does not sit comfortably with concerns about self-incrimination. The Tribunal did not have the assistance of submissions on that issue but finds that it is not necessary for it to be the subject of a finding. In the Board's view the time between service and the date compliance is required (i.e. between 24 August and 3 September) is crucial in this matter. There is no evidence before the Tribunal as to whether the file had been lost and we do not have the benefit of seeing all the correspondence on the issue before the notice was served OR of the events (if any) that followed the service of the notice. Another s152 notice involving this solicitor was dealt with by the Tribunal in 2004 and although we have very little information about these proceedings it is surprising this present notice was not dealt with then rather than being kept for these proceedings. In any event, the Tribunal is not satisfied that the notice specified "a reasonable time for compliance" in the circumstances surrounding this notice and accordingly complaint 15 is dismissed. Summary of Findings on Complaints: 121 There were 36 complaints particularised against the Practitioner and the outcomes we have reached might conveniently be summarised as follows: 1. Estate of EC Mazurkiewcz No. of complaints: 3 No. of Findings of Professional Misconduct: 1 No. of Findings of Unsatisfactory Professional Conduct **: (3) 2. Estate J W Wild No. of complaints: 3 No. of Findings of Professional Misconduct: 1 No. of Findings of Unsatisfactory Professional Conduct **: (3) 3. Estate H Wymer No. of complaints: 4 No. of Findings of Professional Misconduct: 4 4. Estate J M Bower No. of complaints: 3 No. of Findings of Professional Misconduct: 1 No. of Findings of Unsatisfactory Professional Conduct **: (3) 5. Estate A C Hanley No. of complaints: 1 No. of Findings of Unsatisfactory Professional Conduct **: 1 6. Estate I M Swain No. of complaints: 4 No. of Findings of Professional Misconduct: 1 + 1 No. of Findings of Unsatisfactory Professional Conduct **: (3) 7. Estate B B Turner No. of complaints: 1 No. of Findings of Professional Misconduct: 1 8. Estate L E Davis No. of complaints: 5 Complaints dismissed: 5 9. Estate John Junk No. of complaints: 2 No. of Findings of Professional Misconduct: 2 10. Advance Bank & Wildman No. of complaints: 1 No. of Findings of Professional Misconduct: 1 11. Milsky Pty Ltd No. of complaints: 2 No. of Findings of Unsatisfactory Professional Conduct **: 2 12. D Absolom as tutor No. of complaints: 1 No. of Findings of Professional Misconduct: 1 13. Estate M Dunn No. of complaints: 4 Complaints dismissed: 4 14. Breach s55 No. of complaints: 1 No. of Findings of Professional Misconduct: 1 15. Breach s152 No. of complaints: 1 Complaints dismissed: 1 ** Findings included in brackets have been held to create one finding of professional misconduct. 122 It should be stressed that the Tribunal has found that a number of complaints which have been established have been found by the Tribunal to justify a single finding of professional misconduct. In each instance the Tribunal holds that the individual complaints are established and constitute by themselves separate findings of unsatisfactory professional conduct. The Tribunal has adopted this course and found that separate complaints taken together create an act of professional misconduct and in this regard it relies on the non-exclusive definition in s127(1)(a) of the Legal Profession Act which is as follows: " 127. Professional misconduct and unsatisfactory professional conduct (1) For the purposes of this Part, 'professional misconduct' includes: (a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence," 123 In this decision this approach has been applied to the following client files and indicated below is the number of complaints treated as involving a substantial or consistent failure…within the terms of s127(1) of the Act resulting in ONE finding of professional misconduct in relation to those complaints 1. Estate E C Mazurkiewcz: 3 2. Estate J.M. Wild: 3 4. Estate J M Bower: 3 6. Estate I M Swain (there is a separate finding on the 4th count): 3. The Practitioner- Personal History and Assertions from his Affidavit: 124 It emerged in cross-examination of the Practitioner that he had been involved in prior proceedings in the Tribunal. These arose out of a separate s152 notice dated 21 July 2003 served upon him and the matter was heard on 14 May 2004. The decision was not cited so, apart form the fact that a fine was imposed, the Tribunal has little information on these most relevant proceedings. Most of the information on the Practitioner personally came from his affidavit, the relevant portions for the purpose of determining the orders to be made are the following: "I as admitted to practice as a Solicitor the 14th March 1975, worked at two firms and commenced my own practice at Engadine the 1st July 1981. That practice was sold by me the 1st September 2003. I have continued to act as a consultant to the firm now known as TNT Legal. I am aged 55 years, have been married for 30 years and have 3 children aged from 23 years to 17 years. I have been a committee member, director and Commodore for five years at the local sailing club, being not only involved in the management of the club but also conducting learn to sail classes and establishing a local sailability section to provide for disabled people. I have served on council committees and have been the honorary solicitor for the local Probus and Engadine day care. My practice was successful but this involved me working an eleven hour day, attending to practice matters of management of an evening and also seeing clients at the practice at least each Saturday and often on Sunday. My clients would be so used to me being at work of a Sunday that they would often ring or just call in expecting me to be there. Upon reflection I realise now that especially from about the mid 1990's the hours of work I was undertaking was causing me great stress and prevented me form properly attending to all matters that needed to be attended to in order to conduct my practice. In 2001 I sought professional help from my General Practitioner, Dr Robert Ayres, and was referred to a psychiatrist, Dr Greg Wilkins. Although I had only 1 session with Dr Wilkins I resolved that I would have to cease practicing as a Solicitor as soon as reasonably possible and this led to the sale of my practice referred to above. I was also prescribed a course of anti-depressants, which I fully complied with, but I do not consider that I am free of depression. This is despite my changed circumstances and the freedom I am experiencing having disposed of my practice. As part of my agreement for the sale of my practice I am obliged to continued as a consultant to the 30th June 2005. I have not undertaken the mandatory continuing legal education requirements which would enable me to apply for a practicing certificate beyond that date and shall not be applying for a certificate. I have no excuse to offer for my failings and apologise to and am sorry to anybody who may have been hurt or disadvantaged by my actions. It was never my intention to cause harm to anybody and I wish I could provide an explanation for my actions. This inability on my part is the sole reason I decided to sell my practice and retire form being a solicitor notwithstanding the not inconsiderable financial loss that this is occasioning me by depriving myself of an income from legal practice for whatever length of time I would have been able to continue to work. Since the sale of the practice my wife, who is a schoolteacher, has returned to work in that profession." 125 From the terms of his affidavit the Practitioner indicates that he has not undertaken his MCLE requirements and will not (as at that date, 19 April 2005) be applying for a practising certificate. He confirmed this intention in his oral evidence. His intentions have been carefully considered in the formulation of the orders in this matter. 126 Although the Practitioner had consulted both a General Practitioner and a Psychiatrist in relation to what he described as "depression" no medical evidence was presented as to whether he had depression nor indeed whether if he had depression whether or not this was controlled by mediation and what prospects there were for the Practitioner to recover from that illness, assuming he was a sufferer. The Practitioner's evidence of his medical condition and his treatment and diagnosis are of little assistance to the Tribunal. There is, however, evidence of the Practitioner's hard work over the years and of his role as a husband and father and his contribution from honorary legal work, assistance to the disabled and to the local community. These positive aspects have been taken into account in making our determination. 127 The Society has sought that: (i) That the Practitioner be fined; (ii) That the Practitioner be reprimanded; (iii) That the Practitioner pay the Society's costs; (iv) Such other order as to the Tribunal appears appropriate. 128 S171C of the Act gives the Tribunal a wide discretion as to the orders it may make where a Practitioner is found guilty of professional misconduct or unsatisfactory professional conduct. The power of this Tribunal to make orders under s171C is not inhibited by the orders sought by the complainant. In NSW Law Society v Bannister [1990] NSWLST 7 at 8 the Society sought "such orders pursuant to Section 163 of the Legal Practitioners Act 1987 and such further or other orders as the Tribunal shall consider appropriate and an order for costs." The Tribunal considered the impact of its findings of professional misconduct on the practitioner and said at 9: "Where misconduct is established the task for a professional tribunal is to determine whether it indicates unfitness or is more properly to be treated as an isolated or passing departure from proper professional standards amounting to something less than proved unfitness." Ultimately the Tribunal concluded at 10: "The Tribunal's members were initially divided in their opinions as to this, the minority view being in favour of a protective order, and it was only after reconsideration of all aspects of the conduct and all the character and other evidence that unanimity was reached in the Tribunal's orders." The outcome before the Tribunal was a fine of $10,000 and a costs order against Mr Bannister. 129 The Court of Appeal Law Society of NSW v Bannister NSW LST 6 the judgment of Sheller JA with whom Gleeson CJ and Hadley JA agreed found that the Tribunal was in error and order that the name of the solicitor be removed form the roll. At 12 Sheller JA noted: "In its grounds of appeal the Law Society claimed amongst other things, that the Tribunal had erred in finding that the Solicitor was fit to continue to practise as a solicitor of the Supreme Court of New South Wales and sought an order that his name be removed from the roll of solicitors of the Court. This approach is different form that taken by counsel for the Law Society at the hearing before the Tribunal and I shall return to say something about this." Commencing at 17 Sheller JA looked further at the attitude of the Law Society in Bannister. He said: "In my opinion the Court should now make the order that the Tribunal should have made. Two particular matters have concerned me. In the first place more than six years have now passed since the misappropriation of the money, four years since it was returned and nearly three since the determination of the Tribunal. During that period the Solicitor has continued in practice. The second is the attitude of the Law Society. On more than one occasion during submissions to the Tribunal its counsel indicated that the Law Society left it to the Tribunal to decide whether the Solicitor was unfit and whether or not his name should be removed from the roll. At no stage did counsel urge or even suggest that on the evidence the Tribunal was bound to order that the Solicitor's name be removed from the roll. Accordingly it seems surprising that the Law Society should now argue that the Tribunal erred in adopting a choice that the Law Society left open to it at the hearing. The explanation we were given for this was 'a change of policy'. In ordinary criminal or civil proceedings this change of attitude would have particular significance in determining what course we should now follow. However since, in my opinion, protection of the public in the manner I have described required that the Solicitor's name be removed from the roll I accept that, whatever attitude was taken by the Law Society at the hearing before the Tribunal, it acted correctly in prosecuting this appeal. The Law Society's changed attitude should however have been reflected in an application at least for expedition and possibly for some sort of interim order. It is no light matter that a professional body should allow somebody whom it regards as unfit to practise to continue to practise while an appeal takes its normal course unexpedited." 130 The upshot was that the complainant had not sought a specific strike-off order but left the issue to the Tribunal. The Tribunal erred in not making a strike-off order though none was sought by the Law Society except insofar as 'such other order' may be taken to encompass any order authorised by the Act. 131 The Tribunal takes the view that the Court of Appeal was clearly of the view that the Tribunal had a responsibility to make a strike off order in an appropriate case notwithstanding such an order was not actively sought by the complainant. It is not clear what orders were sought in the then equivalent of the current information but this jurisdiction issue has moved on since the decision in Bannister. 132 In Law Society of NSW v Ciampa [1999] NSW ADT 13 at paragraph 58 the orders sought by the complaint are detailed as follows: "58. The Law Society has sought orders for the Solicitor to be reprimanded and a substantial monetary penalty be imposed. The Society also seeks an order for the Solicitor to pay the costs of these proceedings." Those orders did not find favour with the Tribunal and were clearly regarded as inadequate. The Tribunal stated at 60: "60. The Tribunal is of the opinion that the orders sought by the Society that the Solicitor be reprimanded and a substantial monetary penalty be imposed fall short of orders that adequately protect the public. An order is needed to deter the Solicitor from repeating the misconduct and also deter others who might be tempted to fall short of the high standards required of them by acting as solicitors without the appropriate practising certificates. Whilst it is not known whether the Solicitor intends to resume his career as a solicitor nevertheless the Tribunal is of the opinion that there should be a period of time during which the Solicitor is suspended from holding a practising certificate." 133 In Ciampa The Tribunal ordered: (i) reprimand; (ii) payment of a fine of $10,000 within 90 days; (iii) A practising certificate not to be issued to the Practitioner until 3 years from the date of order; and (iv) costs. In this instance the Tribunal clearly made an order in the exercise of its responsibility under s171C that was of a higher order than those sought by the Law Society as complainant. 134 This year in Law Society of NSW v Berry NSW ADFT 46 the Tribunal took the process perhaps a step further though indeed if the Society's information in Bannister (supra) actually sought a fine and/or reprimand and costs then Berry may only be a return to the thought processes of the Court of Appeal in Bannister. Neither Bannister before the Tribunal nor in the Court of Appeal nor indeed Ciampa were cited in Berry where at paragraph 6 the Tribunal stated: "6. At the end of the Solicitor's oral evidence, the Society pressed its application for reprimand, fine and costs. However, we, in the execution of our clearly established protective function, indicated our preliminary view that the Solicitor's right to practice was in issue. Further, we raised, we trust sufficiently clearly, the prospect of a supervision regime or mentoring order pursuant to Section 171C(2)(b) and adjourned the matter to 10 February 2005." 135 After an analysis of the additional evidence provided on the adjourned date, the Tribunal found at paragraph 10: "10. All of the evidence considered, we are not satisfied to the requisite standard that the Solicitor is, at this time, a person who is fit to practice. The evidence before us certainly did offer some prospect that the Solicitor's state could improve, but that appears to be unlikely to be so in the very near future." and concluded at paragraph 14: "14. Considering the Solicitor's previous record, this being the fifth instance when he has been found to have or has admitted to having 'stuck his head in the sand' either to the detriment of his client, or to the detriment of his practice, we simply could not be comfortably satisfied that he would not again so react if he were to be faced with a similar situation tomorrow." 136 The orders made in Berry were for Mr Berry's name to be struck from the roll of legal Practitioners and that he pay costs. In the view of the Tribunal the decisions in Bannister, Ciampa and Berry make it clear that the Tribunal, if it is satisfied that professional misconduct or unsatisfactory professional conduct, is established it has the power, indeed the duty, to impose such of the orders provided for in s171C as it considers proper, including a strike-off order or suspension even where such orders that has not been sought by the complainant. In this present matter the Society, as it had in Bannister, sought "such further order as the Tribunal considers appropriate" or an order to that effect. The Tribunal takes the view that it has jurisdiction to make orders beyond those proposed by the complainant in the Information and that it does not need to have such an order sought in the Information to make protective orders affecting a Practitioner's right to practice. 137 This Tribunal became concerned as the evidence unfolded at the issue of the adequacy of the actual orders sought by the Society. It was asserted by the Practitioner's Counsel that: "the protection of the community is going to be absolute because the practitioner is ceasing to practise… This clearly is a matter where practitioner is and has taken his own steps to ensure that he cannot continue to act in matters because of reasons he has put in his affidavit." The Tribunal made clear its concerns about the Practitioner's fitness to practise and of its view that a suspension might be appropriate. Mr Broadhead responded on behalf of the Practitioner: "There is nothing I wish to put on Mr Swane being suspended for a number of years." 138 The Tribunal's role involves it looking beyond the Practitioner before it and taking into account obvious matters of public interest. There is no evidence to suggest that Mr Swane would return to practice in the future. However, in terms of the orders sought by the Society there is nothing to stop the Practitioner from changing his mind and applying for a practicing certificate and returning to practice at any time. 139 The Tribunal has made 15 findings of professional misconduct against the Practitioner. It was open to the Tribunal to find that some of the matters complained of amounted to unsatisfactory professional conduct but after reviewing the facts the Tribunal was satisfied that the misconduct in the matters where such findings were made was professional misconduct in the specified counts. The result is that the totality of the findings against the Practitioner are very significant and it has not been appropriate to invoke s127(1)(a) as often as appeared possible at the commencement of the hearing. Section 127(1)(a) refers to "a substantial or consistent failure to reach reasonable standards of competence and diligence" and this has been established time and again in this matter. However, in the view of the Tribunal the downgrading of some of the findings to unsatisfactory professional conduct leaves many indisputable findings of professional misconduct plus a number of findings of unsatisfactory professional conduct. 140 The Practitioner's fitness to practise is clearly in issue. He is 55 and has followed a course of action consistent with his retirement from practice. To leave the proceedings with a fine and a reprimand imposed would send an appalling message to the Practitioner himself and to the profession at large because the protective function of the Tribunal demands in a proper case a positive approach to show that conduct such as the extraordinary delays of Mr Swane will if established lead to serious professional consequences for the Practitioner. Cases before the Tribunal are rarely the same and hopefully the Tribunal will not often have to face so many complaints of delay against one Practitioner. It is important that the Tribunal act appropriately and in this matter that can only mean a serious disciplinary action which is also essential to ensure that the public is reassured. The fitness to practise of the Practitioner is certainly in issue and it is not sufficient to set that aside on the basis that he is not going to renew his practising certificate. His conduct clearly shows him to be unfit to practise and it is unfortunate that he may now retire from practice with a larger stain on his reputation than was sought by the Law Society. The simple fact is that the Tribunal holds that the orders sought by the Society are inadequate for on the evidence this Practitioner is currently not fit to practice. He has given assurances of his not returning to practice and after consideration of the alternatives the Tribunal has concluded that a strike-off order is not required and that a more appropriate order in this case is one that would prohibit him from practice for the next five years. The findings would equally have, in the Tribunal's view, justified a strike-off order though in this case this is not necessary. Accordingly, one order to be imposed will be in terms of s171C(f) for an express period of five years from the date of these orders. 141 The Tribunal finds that it is appropriate in addition to the s171C(f) order that there be a public reprimand, a substantial fine and a costs order against the Practitioner. The public reprimand is important as it marks the disgrace of a member of an honourable profession inherent in his misconduct but the reprimand is not a sufficient disciplinary act in itself in this matter unless coupled with the other orders the Tribunal has outlined. 142 The Tribunal has considered some recent decisions on penalty. These decisions are always useful but the facts and circumstances of each matter invariably have so many individual factors that little guidance can be garnered. In Law Society of NSW v Jayawardena [2005] NSW ADT 96 professional misconduct was found on four counts invoking failure to assist and co-operate with investigation, failure to comply with a s152 notice, misleading the Law Society and practising without the appropriate practising certificate. The orders provided for a public reprimand, a fine of $2,500.00 and a costs order. In reaching its conclusion the Tribunal said at 65: "The function of this Tribunal is essentially twofold; to protect the public and to register its disapproval of the way in which the Solicitor dealt with the complaint made against him. The complaints, the subject of these proceedings, commenced with the single complaint of practicing without an appropriate Practising Certificate and then ballooned out into other complaints because of his failure to answer correspondence from the Law Society appropriately. Taking into account the Solicitor's impressive work record and the support of the referees, the Tribunal concludes that the protection of the public did not require that he be prevented from practicing and that an imposition of a fine and a costs order will sufficiently mark the Tribunal's disapproval of the Solicitor's misconduct." 143 The matters established against the Practitioner in this matter are such that call for more severe orders than in Jayawardena and reflect the particular misconduct in this matter. 144 In Law Society of NSW v Konstantinidis (No. 2) [2005] NSW APT 87 the Practitioner was found guilty on two counts of professional misconduct invoking delay and a breach of s55 of the Legal Profession Act. The order was a public reprimand, a fine of $5,000 and a costs order. The Tribunal at 63 et seq having made a finding of professional misconduct dealt with the issue of its appropriate response in the following terms: "We do not accept Mr Walker's submission that because our findings of professional misconduct would sufficiently convey the Tribunal's disapprobation of the Solicitor's behaviour we need not make any order under s171C(1). In our opinion, such a limited response would be in conflict with the proposition, which Mr Walker endorsed, that compliance by a legal practitioner with the requirements of s55 of the Act and with undertakings given in the course of practice is a matter of great importance. It would also be at odds with the approach taken in the decisions that we have referred to at [48-51] above, dealing with the imposition of penalties for breaches of the obligations imposed by s55(3) or by s152, and with breaches of undertakings. In none of them was the disapprobation conveyed by a finding of professional misconduct considered by itself to be a sufficient sanction." 145 The Tribunal in this present matter holds that the finding of these 15 acts of professional misconduct would be inconsistent with the spirit of the Act and undermine the credibility of the Tribunal and the regulation of the legal profession if the further orders detailed by the Tribunal were not made. 146 In the recent decision in Law Society of NSW v Whitting [2005] NSW ADT 150 the Practitioner was found guilty of professional misconduct. He witnessed two wills and subsequently procured his wife's signature to both wills as witness falsely asserting that his wife was present when the two testators and the solicitor signed the wills. The decision refers to the Practitioner's serious health problems at the time of his misconduct. The conduct was clearly reprehensible and the serious health issues offered some mitigation. A number of cases were reviewed before the Tribunal reached the conclusion that the appropriate orders were: (i) a reprimand; (ii) a fine of $500; (iii) six monthly inspections of his firm; and (iv) costs. 147 The Tribunal has determined that bearing in mind the other orders to be made the appropriate amount of the fine to be imposed is the sum of Five thousand dollars ($5,000) and orders accordingly. The totality of these orders is designed to reflect the grave disservice the Practitioner rendered to his clients, his profession and himself by his misconduct, as well as to attempt to deter other Practitioners form taking the same or a similar course. These orders should also provide reassurance to the public that conduct of this nature will be appropriately dealt with irrespective of the age or length of service of the Practitioner. Finally, the orders have been made after taking into account the positive aspects of the Practitioner's prior service to the community and his present situation. 148 The parties have agreed on the amount of the costs order and this is recognised in the orders made. The Tribunal has determined that a period of 90 days is appropriate for payment of the fine and the costs order. Publication of Order and Reasons: 149 Under s171C(3) of the Legal Profession Act requires the Tribunal where it makes an order publicly reprimanding a legal Practitioner to publish the order and a statement of its reasons for making the order. Under subsection (5) this obligation to publish is satisfied if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commission's functions in respect of the register of disciplinary action required to be kept under Division 9A. The Registrar of the Tribunal is accordingly requested to provide the required information to the Commissioner as expeditiously as possible 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.