Law Society of New South Wales v Knudsen [2005] NSWADT 250

CITATION: Law Society of New South Wales v Knudsen [2005] NSWADT 250 DIVISION: Legal Services Division APPLICANT PARTIES: The Council of the Law Society of New South Wales RESPONDENT Peter Stanley Knudsen FILE NUMBER: 042032 HEARING DATES: 14/02/2005 SUBMISSIONS CLOSED: 02/14/2005 DATE OF DECISION: 11/04/2005

BEFORE: Barnes M - Judicial Member; Pheils J - Judicial Member; Hoareau D - Non Judicial Member APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Legal Services Commissioner v Knudsen [2000] NSW ADT 62 CASES CITED: NSW Bar Association v Howen [2003] NSWADT 117 Council of the Law Society of NSW v Knudsen [2003] NSW ADT 272 Whyte v Brosch & Others [1998] 45 NSWLR 354 APPLICANT REPRESENTATION: L Pierotti, solicitor RESPONDENT A Diethelm, barrister ORDERS: 1. The Respondent is guilty of professional misconduct; 2. The Respondent be publicly reprimanded; 3. The Respondent is fined the sum of $1,250.00; 4. The Respondent is ordered to pay the costs of the Applicant.

REASONS FOR DECISION 1 These proceeding were commenced by filing an Information on 13 October 2004 by the Council of the Law Society of New South Wales (hereafter the Law Society). 2 Relevantly the Law Society alleged that Peter Stanley Knudsen (hereafter the Solicitor) failed to comply with a Section 152 Notice. 3 Section 152 of the Legal Profession Act 1987 provides. 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. (1A) A Council or the Commissioner may inspect any document produced before the Council or Commissioner under this section and may retain it for such period as the Council or Commissioner thinks necessary for the purposes of an investigation in relation to which it was produced. A Council or the Commissioner may make copies of the document or any part of the document. (2) If a legal practitioner against whom a complaint is made claims a lien over documents relating to the matter the subject of the complaint, the Council or the Commissioner may, by notice in writing served on the legal practitioner, require the legal practitioner to waive the lien if satisfied it is necessary for the orderly transaction of the client's business. (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. Note: Documents has a wide meaning. The term is defined in the Interpretation Act 1987 to mean any record of information. The term would include any file that was itself a record of information. 4 Specifically this notice was served upon the Solicitor on 6 February 2004. 5 The Solicitor by Reply filed 21 December 2004 admitted the matters identified in paragraphs 1-4 of Schedule 1 of the Information. 6 Paragraphs 1-4 of Schedule 1 of the Information provided: Schedule 1 1.By complaint dated 1 September 2003 David and Suzanne White made a complaint to the Legal Services Commissioner against Peter Stanley Knudsen ("the Solicitor"). 2. By letter dated 3 September 2003 the Legal Services Commissioner referred to the Society, for investigation, the complaint by David and Suzanne White. 3. On 5 February 2004 the Professional Conduct Committee of the Society, pursuant to its delegated authority, resolved that a Notice pursuant to Section 152 of the Legal Profession Act, 1987 be sent to the Solicitor ("the Notice"). 4. On 6 February 2004 the Solicitor was personally served with the Notice requiring his compliance on or before fourteen days after service of the Notice. The Solicitor has not complied with the requirements of the Notice. 7 The Solicitor in the Reply went on to identify a range of issues characterised as explanation and mitigation. 8 The circumstances of the Solicitor as set out in the Reply warrant detailed notation in this decision. 9 Relevantly the Reply noted: a) The health difficulties referred to were as follows: i) On 12 July 2003 I was the victim of a serious, and very nearly fatal, assault by stabbing, resulting in (amongst other injuries) double pneumothorax, and which resulted in my hospitalisation for about a week in Royal Prince Alfred Hospital with a number of surgical procedures. Although I went back to work (against medical advice) on a part-time basis not long after being discharged, it took about 2 months, or more, before I was able to resume my previous work output. ii) In October 2003 I was diagnosed with moderately advanced prostatic cancer by Dr. Katalaris, Urologist, following a biopsy. I sought a second opinion from Dr. Paul Cozzi of St George Private Hospital who conducted further invasive tests under general anaesthetic and confirmed the diagnosis. iii) An operation for the prostrate cancer was scheduled for 24 February 2004 at St George Hospital. Following a pre-operative ECG conducted in the theatre after pre-op but before anaesthesia, it was decided that due to an apparent heart irregularity, the surgery would be postponed pending investigation of a cardiologist. iv) During the next 3 or 4 days I underwent a series of cardiac tests and examinations under the care of Dr. Macauley, Senior Consultant Cardiologist at St George Hospital. Dr. Macauley determined that the cancer surgery could proceed. v) On 9 March 2004 I underwent a radical prostatectomy at St George Hospital. vi) I was advised to have a period of convalescence of 2 or 3 months, although I returned to work (against medical advice) on a limited basis about 2 weeks after the surgery. However it took at least 2 months (possibly more) before I was able to resume my normal level of work. vii) Some difficulties arose in relation to the surgery, including an infection in the wound, which did not require hospitalisation but did require bed rest. viii) A further complication was the development of an inguinal hernia which required invasive corrective surgery, which I had, again at St George on 7 September 2004 the surgeon being Dr. Chevy Perera. b) The above difficulties have made the period since July 2003 very stressful for me. Whilst I have endeavoured to discharge my day to day work for my clients to the fullest of my ability, I have unfortunately neglected some pressing personal affairs, including the section 152 Notice, the subject of this information. 10 At the hearing Mr. Pierotti for the Law Society contended it was only at the hearing the Law Society appreciated that there had been an admission as to the breach however it was certainly made clear by Mr. Diethelm for the Solicitor that there was an admission as to the failure to comply with the s.152 Notice and the Particulars. 11 It should be noted that a reply to the s.152 Notice was submitted prior to this hearing. 12 The Tribunal is clearly satisfied to the requisite standard that a breach of Section 152 has occurred and the Solicitor is guilty of professional misconduct. 13 The Tribunal had the opportunity to consider the Affidavit material as filed on behalf of the Solicitor and further the Solicitor gave oral evidence and was the subject of cross examination. 14 The Tribunal is satisfied that the Solicitor is a witness of truth in relation to the matters relevant to these proceedings and the Tribunal is satisfied that the factual matters asserted in the Reply have been made out. 15 The Solicitor's personal circumstances were emotionally and physically demanding. 16 Certainly the Solicitor acknowledged that he did not inform the Law Society of an inability to respond and further that at various times he had resumed the range of duties as a Solicitor. 17 The Solicitor acknowledged further that in part the explanation for his delay in responding was referrable to him finding it easier to cope with routine matters and it was very difficult for him to cope with unpalatable matters. 18 There is no doubt the Solicitor failed to comply with Section 152 19 Further the Tribunal is satisfied that the Solicitor had previously failed to comply with Section 152 Notice which led to a decision of the Tribunal of 18 May 2000 and 26 November 2004. 20 Accordingly this was the third time the Solicitor had come before the Tribunal for non compliance with Section 152. 21 The Tribunal is mindful that it makes its determination in the public interest and does not function to effect a punishment of the Solicitor. 22 Section 152 is an important legislative provision in the public interest and it is important that every practitioner needs to be respectful of this provision and the importance of public confidence in the profession and accountability. 23 The Solicitor knew and certainly ought to have known of the importance of the provision and his non compliance for a third occasion in a comparatively short time line could certainly cause some disquiet. See Council of the Law Society of NSW v Knudsen [2003] NSW ADT 272 and Legal Services Commissioner v Knudsen [2000] NSW ADT 62. 24 That said however this Solicitor has found himself in extraordinary personal circumstances which have adversely impacted upon him dating back to approximately 12 July 2003 25 Further the Tribunal was referred to the Decision of the Bar Association –v- Howen. 26 Relevantly paragraph 26 of that decision provides: The intention behind the legislation is clear. The procedures are not established solely, or even primarily, as an alternative means of gaining compensation for victims of unsatisfactory professional conduct or of professional misconduct. The chief purpose of the legislation is to maintain the highest achievable standards of professional conduct by means of appropriate discipline. Such discipline is designed to educate the defaulting legal practitioner as well as to act as an educative caution to other legal practitioners. The ultimate purpose of the procedures is the protection of the public by appropriately designed disciplinary measures. The awarding of compensation is important but secondary. 27 There is no suggestion on behalf of the Solicitor that a public reprimand is not appropriate. 28 The educative caution is in part addressed by publication of the decisions of the Tribunal, the public reprimand and a costs order. 29 As to a fine it is appreciated that a fine can have an educative caution role. In the circumstances of this matter noting that there is a range for an appropriate fine, the Tribunal considers that this is a matter that should be considered at the lower end of the range and determines a figure of $1,250.00. 30 The Solicitor in this matter has experienced significant physical and emotional trauma and it is within the Tribunal's discretion to take such circumstances into account in determining an appropriate fine. Each matter turns on its own facts. 31 Further in relation to the conduct of the profession generally the Tribunal remains mindful that the decision of Whyte v Brosch & Others [1998] 45 NSWLR 354 where His Honour Spigelman CJ delivered a Judgment relating on the facts to a failure to comply with the provisions of Pt 51 r47, with respect to the filing of written submissions and chronologies which was required to be done by the Appellant not later than 9 days before the date fixed for hearing. 32 There had been a clear breach of the Rules. 33 His Honour noted: The basic facts are that no written submissions were filed until yesterday when a document was filed about which I do not wish to say too much, by reason of the fact that the matter still has to be heard by the Bench as originally constituted. Suffice it to say that the submissions, as filed, do not constitute submissions which identify, with any degree of precision, the issues that will be sought to be agitated before the Court. Nor do they constitute submissions on the basis of which the Court would be able to proceed with an understanding of the issues in the case, before the matter is heard, so that the Court may prepare to deal with the matter, if appropriate, in ex tempore reasons. 34 He went on to observe, in relation to professional obligations. The matter has been listed before a Bench of five in order to emphasise, not only to the members of the profession appearing in this case, but also more widely, that the Court regards compliance with these Rules to be a matter of considerable significance. Legal practitioners, both solicitors and barristers, owe duties to the Court. That is what distinguishes the practise of a profession from a business or a trade or a job, insofar as the legal profession is concerned. Those duties include a duty to ensure that proceedings before the Court are conducted efficiently and expeditiously. Rules of the Court, such as part 51 rule 47, constitute an attempt by the Court to ensure that everyone knows requirements that are designed to ensure that proceedings are conducted efficiently and expeditiously and with an appropriate use of judicial resources. 35 Further His Honour noted: "On this occasion an explanation has been proffered and more significantly perhaps an apology has been proffered to the Court." 36 Clearly where there has been a lapse in professional standards the conduct of the practitioner including contrition for the conduct and an appropriate apology is also a factor which this Tribunal can take into account when considering any penalty.