CITATION: Legal Services Commissioner -v- Browne [2004] NSWADT 63 DIVISION: Legal Services Division APPLICANT PARTIES: Legal Services Commissioner RESPONDENT John Wallace Alexander Browne FILE NUMBER: 032013 HEARING DATES: 25/11/2003, 25/02/2004 SUBMISSIONS CLOSED: 02/25/2004 DATE OF DECISION: 03/31/2004 BEFORE: Vass CB -Judicial Member; Fox R - Judicial Member; Mahon D - Member APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: Veghelyi -v- Council of the Law Society of New South Wales No. 12662 of 1989 unreported NSW SC 06/09/89 APPLICANT REPRESENTATION: L Muston, solicitor RESPONDENT G A Brady, barrister ORDERS: That the Solicitor be publicly reprimanded. REASONS FOR DECISION 1 The informant in this matter is the Legal Services Commissioner (the Commissioner) and the Commissioner alleges in the Information dated 18 August 2003 and filed on 25 August 2003, that John Wallace Alexander Browne (the Solicitor) is guilty of professional misconduct on the ground that the Solicitor failed to comply with a notice in writing dated 11 April 2003 which notice (the Notice) was issued pursuant to the provisions of Section 152(1) of the Legal Profession Act 1987 (the Act). 2 That section empowers the Commissioner, having received a complaint, to serve notice in writing to the Solicitor requiring the Solicitor to do any one of the following, namely: (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 a document); (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. Section 152(3) of the Act provides: "(3) A requirement under this Section is to be notified in writing to the legal practitioner or interstate legal practitioner and is to specify a reasonable time for compliance." Section 152(4) of the Act provides: "(4) A legal practitioner or interstate legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. 3 The Notice given to the Solicitor sought the response by 5.00pm on 16 May 2003. 4 A Mrs M Cutler by letter dated 13 May 2002, made a complaint to the Commissioner and the Commissioner commenced his investigation. There was correspondence between the Solicitor and the Commissioner between May 2002 and early December 2002. 5 On 16 December 2002, the Commissioner wrote to the Solicitor and relevantly requested the Solicitor to produce his file in the Cutler matter no later than 17 January 2003. The Solicitor responded by letter dated 29 January 2003 but did not enclose the file. The Commissioner replied by letter dated 3 February 2003 noting that the file was not produced and gave the Solicitor a further 14 days to produce the file and that letter contained a warning that if the Commissioner did not hear within 14 days, he would consider issuing a Notice under Section 152(1) of the Act. 6 On 27 February 2003, the Commissioner wrote to the Solicitor about a number of complaints and in that letter, in relation to the Cutler matter, alerted the Solicitor to the fact that he had not received the file as sought in his letter of 3 February 2003. 7 The Solicitor's first response to the Commissioner's request for the production of the file contained in the Commissioner's letter dated 16 December 2002, is the Solicitor's letter dated 17 March 2003. In that letter, the Solicitor says that he did not read the second paragraph of the letter dated 16 December 2002 as a request to forward the file. The second paragraph in the letter dated 16 December 2002 does not refer in any way to a file but the second last paragraph does in clear terms where it is stated: "I would appreciate you providing me with your file in the matter." 8 In attempting to answer the complaint, the Solicitor placed in evidence a copy of a letter dated 13 March 2003 addressed to the Commissioner which purported to enclose the Cutler file. According to the evidence, the Commissioner did not receive that letter or the file at that time. The Solicitor said that he was convinced that it was sent and he did not know when the file was returned to the Solicitor's office. The Tribunal cannot reconcile that letter of 13 March 2003 with the statement of the Solicitor in his letter dated 17 March 2003 where he says to the Commissioner that he is happy to forward the file and will do so under separate cover. The Tribunal does not accept the Solicitor's evidence that the file was sent to the Commissioner on 13 March 2003. 9 The Section 152 Notice was served on the Solicitor on 24 April 2003 and the Notice required compliance by 16 May 2003. The Commissioner agrees that the Solicitor complied with the Notice on 30 May 2003 but the Commissioner claims the Solicitor has not provided a reasonable excuse for his failure to comply with the Notice within the time prescribed. 10 The Commissioner sent to the Solicitor a letter dated 21 May 2003 seeking to have the Solicitor give reasons why he had not forwarded the file and asked for the reasons to be supplied by 5.00pm on 5 June 2003. The Solicitor says in his Affidavit dated 19 December 2003 that he did not reply to that letter because he thought that the Commissioner had issued it in error. He states that he had sent a fax letter to the Commissioner on 20 May 2003 covering the forwarding of all four files, but a typing error omitted reference to the Cutler file. The Solicitor said in the same Affidavit that when it was realised that there was a mistake on his part, he sent a letter to the Commissioner dated 2 July 2003 giving an explanation for the delay. That letter was referred to as Annexure C in the Solicitor's Affidavit dated 19 December 2003 but the letter originally annexed was the wrong letter. A copy of the letter dated 2 July 2003 was included into the Affidavit as Annexure C during the Hearing. That letter however, does not refer to the Cutler file but refers to another file. The Solicitor in evidence stated that even this letter contained yet another typing error and should have referred to all the files instead of the one file to which it did in fact refer. 11 It is clear that the Solicitor did not provide any excuse for not complying with the Section 152 Notice now under consideration until he filed his Affidavit of 12 November 2003. The reasons given by the Solicitor were that after the date on which he received the Notice, namely 24 April 2003, he was involved in a 4 day District Court Hearing. Then he says that in the week commencing 12 May 2003, he had Court at Walgett and Lightning Ridge and was unable to check the file. His evidence then is that he sent the file on 20 May 2003, so he was only 4 days late complying with the Section 152 Notice. The Commissioner however did not receive the file until 30 May 2003. 12 The Tribunal does not accept that the excuse given by the Solicitor in his Affidavit dated 12 November 2003 amounts to a "reasonable excuse" as required in Section 152(4) of the Act. Although we do not accept that he did so, the Solicitor contends that in fact he sent the file to the Commissioner on 13 March 2003. If that was the case then the Solicitor would have checked the file at that time. All the Solicitor had to do then was to direct a member of his staff to forward the file to the Commissioner after he received the Notice. What is clear to this Tribunal is that the Commissioner first sought the production of the file in his letter dated 16 December 2002 and did not receive it until 30 May 2003, approximately five and a half months later, in that time having sent to the Solicitor three requests and in addition, serving the Notice. 13 The Tribunal again sends a very clear message to the profession that Practitioners must comply with correspondence sent to them by the Commissioner or the Law Society in a timely fashion. In Veghelyi -v- Council of the Law Society of New South Wales 12662 of 1989, unreported, NSW SC6/9/89, Mr Justice Smart stated at page 16: "It is important that Solicitors respond promptly to the Society when it asks for a reply in response to complaints that have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often, the replies should be delivered within a shorter period such as 7/10 days. Replies to the Law Society in respect of complaints warrant a high priority." 14 As said earlier, the Tribunal does not agree that the reasons provided by the Solicitor as set out in his Affidavit sworn on 12 November 2003 provide a reasonable excuse, and so, the finding of this Tribunal must be that the Solicitor is guilty of professional misconduct. 15 A submission was made to the Tribunal that if evidence was adduced to establish a reasonable excuse, even if the detail of that excuse is revealed subsequent to the issue of the Information, then the Solicitor would not be guilty of professional misconduct. 16 Ms Muston argued that such an interpretation would make the administration of the section quite unworkable and presumably intended us to find that it is professional misconduct for a Solicitor to fail to communicate his reasonable excuse to the Commissioner upon being asked for it. To do otherwise would leave the Commissioner at the mercy of a reasonable excuse proven well after the Information was filed, and perhaps even, as appears to have arisen in this matter, very late in the trial. 17 The Tribunal acknowledges that this may well be so, but the words of the section are quite clear, and perhaps properly so, in view of the very serious consequences to a Solicitor of a failure not due to a reasonable excuse. 18 The other difficulty which faced the Tribunal in this matter is the Commissioner's action in not raising Informations against the Solicitor for his failure to comply with all four Notices. It will be recalled in this regard that all four Notices were served on the same day, and the Solicitor submitted all four files requested in the one bundle. The Solicitor only submitted excuse in respect of one of the four Notices, so leaving three identical demands late complied with unexcused, and yet only one of them was raised before us. 19 The Tribunal has some sympathy with the question:- "If the excuse was good for one of the Notices, why was it not good enough for the others?" Which, in effect, the Practitioner asked in his Affidavit of 12 November 2003. 20 Having found that the Solicitor did not have a reasonable excuse, a finding of professional misconduct is inevitable. Having regard to the fact that the delay in compliance with the Notice was numbered in days rather than weeks, a reprimand without fine is appropriate. Further, in view of the relatively short period, and in view of the forensic difficulties which faced the Solicitor as a result of the Commissioner's inexplicable election to only prosecute one of the three failures to give an explanation, we think it inappropriate to order that the Solicitor pay the Commissioner's costs. 21 As an aside, we also observe to the Commissioner that where, as in this matter, he issues a number of Notices to a Practitioner at one time, he should perhaps make a concession by extending the notice time for compliance. Of course, the fact of that "extension" should be specifically noted in the accompanying correspondence, so that the Solicitor is clearly aware of it. ORDERS 22 Having found that the Solicitor is guilty of Section 152 (4) professional misconduct, the Tribunal makes the following order: That the Solicitor be publicly reprimanded. 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