CITATION: New South Wales Bar Association v Jones [2008] NSWADT 253 DIVISION: Legal Services Division APPLICANT Council of the New South Wales Bar Association PARTIES: RESPONDENT Gregory Castle Jones FILE NUMBER: 072035 HEARING DATES: 8 August 2008 SUBMISSIONS CLOSED: 8 August 2008 DATE OF DECISION: 4 September 2008 BEFORE: Haylen W - J (Deputy President); Blacket P SC - Judical Member; Costigan M - Non-Judicial Member CATCHWORDS: Unsatisfactory Professional Conduct - conduct below expected standards of competence MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Legal Profession Act 1987 Legal Profession Act 2004 APPLICANT P Skinner, barrister REPRESENTATION: RESPONDENT M Williams, barrister K Henderson, legal officer The following orders made by consent: 1. A finding that the conduct of the respondent as particularised in Ground 1 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner 2. A finding that the conduct of the respondent as particularised in Ground 2 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner 3. A finding that the conduct of the respondent as particularised in Ground 3 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner 4. (a) an order reprimanding the Respondent, pursuant to subsection 562(2)(e) of the Legal Profession Act 2004; and ORDERS: (b) an order that the Respondent undertake and satisfactorily complete the course on drafting pleadings, defence and cross-claims conducted by the Bar Association of NSW in the October 2008 Bar Practice Course: i. Case Analysis/Case Theory/Identification of issues and Necessary Evidence; ii. Drafting originating process: the rules, content and structure USO v Wong; iii. Statement of Claim drafting exercise in groups; iv. Discussions of draft pleadings, drafting defences, content and rules including Civil Liability Act, contributory negligence and contribution; v. Discussion of draft defences. Drafting replies and cross claims 5. An order that the decision of the Tribunal in this matter be published 6. An order that the respondent pay the costs of the Applicant in these proceedings. REASONS FOR DECISION 1 Mr Gregory Castle Jones was admitted as a solicitor of the Supreme Court of New South Wales in April 1987 and in August 1990 was admitted as a barrister of the Supreme Court of New South Wales. As at October 2007, he held an unrestricted practising certificate which expired on 30 June 2008. In November 2004, the Office of the Legal Services Commissioner referred to the Bar Association a complaint made by Mr Harry and Mrs Kathy Stern about the conduct of Mr Jones. 2 In July 2007, the Council of the New South Wales Bar Association resolved to refer certain aspect of the complaint to the Legal Services Division of the Administrative Decisions Tribunal pursuant to the provisions of section 155(2) of the Legal Profession Act 1987. The Bar Council's Resolution was in the following terms: RESOLVED that the part of the complaint made by Harry and Kathy Stern by letter dated 25 October 2004, identified as ground 1, against Gregory Castle Jones, namely, that he failed to plead competently and properly the 2nd further amended cross claim filed on the Sterns' behalf in litigation with Hayvale Builders Pty limited, be referred to the legal Services Division of the Administrative Decisions Tribunal pursuant to section 155(2) of the Legal Profession Act 1987 on the basis that, after investigation, the Bar Council is satisfied that there is a reasonable likelihood that Jones will be found guilty by the Tribunal of unsatisfactory professional conduct. FURTHER RESOLVED that the part of the complaint made by Harry and Kathy Stern by letter dated 25 October 2004, identified as ground 2, against Gregory Castle Jones, namely that he failed to plead competently and properly the 3rd further amended cross claim filed on the Sterns' behalf in litigation with Hayvale Builders Pty Limited, be referred to the legal Services Division of the Administrative Decisions Tribunal pursuant to section 155(2) of the Legal Profession Act 1987 on the basis that, after investigation, the Bar Council is satisfied that there is a reasonable likelihood that Jones will be found guilty by the Tribunal of unsatisfactory professional misconduct. FURTHER RESOLVED­ that the part of the complaint made by Harry and Kathy Stern by letter dated 25 October 2004, identified as ground 3, against Gregory Castle Jones, namely that he failed to plead competently and properly the 4th further amended cross claim filed on the Sterns' behalf in litigation with Hayvale Builders Pty Limited, be referred to the Legal Services Division of the Administrative Decisions Tribunal pursuant to section 555(2) of the Legal Profession Act 1987 on the basis that, after investigation, the Bar Council is satisfied that there is a reasonable likelihood that Jones will be found guilty by the Tribunal of unsatisfactory professional conduct. 3 In October 2007, the Council of the New South Wales Bar Association filed an Application for Original Decision in the Tribunal seeking findings of unsatisfactory professional conduct and consequential orders under section 562 of the Legal Profession Act 2004. The Orders sought in that Application were as follows: 1. A finding that the conduct of the respondent as particularised in Ground 1 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 2. A finding that the conduct of the respondent as particularised in Ground 2 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 3. A finding that the conduct of the respondent as particularised in Ground 3 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 4. An order pursuant to subsections (2), 562(4) and/or 562(5) of the Act, as the Tribunal may consider fit. 5. An order that the decision of the Tribunal in this matter be published. 6. An order that the respondent pay the costs of the Applicant in these proceedings. 7. An order that the Respondent pay compensation to the complainants, Mr Harry Stern and Mrs Kathy Stern, pursuant to section 171D of the Legal Profession Act 1987 or alternatively section 573(1) of the Legal Profession Act 2004. 8. Such further or other orders as the Tribunal may consider fit. 4 The Council of the New South Wales Bar Association supplied the following Grounds and Particulars. Ground 1 As barrister retained by Dennis & Company, solicitors, to advise and appear in the District Court for lay clients Mr Harry Stern and Mrs Kathy Stern, the respondent's pleading of the Second Further Amended Cross-Claim filed on behalf of Mr and Mrs Stern of 6 September 2002 was incompetent. The Second Further Amended Cross-Claim was drafted by the respondent after a First Amended Cross-Claim pleaded by him on behalf of the Sterns had been struck out by Solomon DCJ on 6 August 2002 with comments by his Honour as to the required correct pleading. The Second Further Amended Cross-Claim was dismissed by Andrew DCJ on 9 December 2002, causing detriment and loss to the Sterns. Ground 2 As barrister retained by Dennis & Company, solicitors, to advise and appear in the District Court for lay clients Mr Harry Stern and Mrs Kathy Stern, the respondent's pleading of the Third Further Amended Cross-Claim filed on behalf of Mr and Mrs Stern on 2 September 2003 was incompetent. The Third Further Amended Cross-Cm was drafted by the respondent after a First Amended Cross-Claim pleaded by him on behalf of the Sterns had been struck out by Solomon DCJ on 6 August 2002 with comments by his Honour as to the required correct pleading, and a Second Further Amended Cross-Claim pleaded by him was dismissed by Andrew DCJ on 9 December 2002 but by orders made by consent in the Court of Appeal on 21 August 2003 the judgment and order of Andrew DCJ was varied to give leave for the filing of a Third Further Amended Cross-Claim within strict limitations. The Third Further Amended Cross-claim was struck out by Phegan DCJ on 4 December 2003, causing detriment and loss to the Sterns. Ground 3 As barrister retained by Dennis & Company, solicitors, to advise and appear in the District Court for lay clients Mr Harry Stern and Mrs Kathy Stern, the respondent's pleadings of the Fourth Further Amended Cross-Claim filed on behalf of Mr and Mrs Stern on 16 June 2004 was incompetent. The Fourth Further Amended Cross-Claim was drafted by the respondent after a First Amended Cross-Claim pleaded by him on behalf of the Sterns had been struck out by Solomon DCJ on 6 August 2002 with comments by his Honour as to the required correct pleading, a Second Further Amended Cross-Claim pleaded by him was dismissed by Andrew DCJ on 9 December 2002 but by orders made by consent in the Court of Appeal on 21 August 2003 the judgment and order of Andrew DCJ was varied to give leave for the filing of a Third Further Amended Cross-Claim within strict limitations, and a Third Further Amended Cross-Claim was struck out by Phegan DCJ on 4 December 2003. The Fourth Further Amended Cross-claim was liable to be struck out, causing detriment and loss to the Sterns. 5 In February 2008, the Respondent barrister filed in the Tribunal a Reply to the Application made by the Council of the New South Wales Bar Association. That Reply was in the following terms: 1. The respondent consents to the orders sought in paragraphs 1,2 and 3 of the application for original decision. 2. The respondent consents to a reprimand pursuant to section 562(2)(e) and undertakes to attend a CPD/CLE course on drafting pleadings, but otherwise does not consent to the orders sought in paragraph 4 of the application for original decision. 3. The respondent consents to the orders of the Tribunal being published. 4. The respondent does not consent to pay the costs of the applicant in these proceedings. 5. The respondent denies the complainants are entitled to compensation as pleaded in paragraph 7 of the application for original decision. 6 After the matter was listed for hearing but as foreshadowed by the parties, an Instrument of Consent made pursuant to the provisions of section 564 of the Legal Profession Act 2004 was filed in the Tribunal. That Instrument of Consent set out the Orders sought and the Orders to which the Respondent barrister now consented, and did so in the following terms: 1. A finding that the conduct of the respondent as particularised in Ground 1 of the First Schedule to that Application constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 2. A finding that the conduct of the respondent as particularised in Ground 2 of the First Schedule to that Application constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 3. A finding that the conduct of the respondent as particularised in Ground 3 of the First Schedule to that Application constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 4. An order pursuant to subsections 562(2), 562(4) and/or 562(5) of the Act. 5. An order that the decision of the Tribunal in this matter be published. 6. An order that the respondent pay the costs of the Applicant in these proceedings. 7. An order that the Respondent pay compensation to the complainants, Mr Harry Stern and Mrs Kathy Stern, pursuant to section 171D of the Legal Profession Act 1987 or alternatively section 573(1) of the Legal Profession Act 2004. 8. Such further or other orders as the Tribunal may consider fit. The Reply - part consent 2. By a Reply filed on 7 February 2008 the Respondent indicated his consent to several of the orders sought, but not all. The Respondent now consents as follows: 3. The Respondent now consents to orders 1,2,3,5 and 6 sought by the Applicant in the Application. 4. In respect of paragraph 4 of the Application the Respondent consent to the following: (a) - an order reprimanding the Respondent, pursuant to subsection 562(2)(e); and (b) - an order that the Respondent undertake and satisfactorily complete the course on drafting pleadings, defence and cross-claims conducted by the Bar Association of NSW in the October 2008 Bar Practice Course: 1. Case Analysis/Case Theory/Identification of issues and Necessary Evidence; 2. Drafting originating process: the rules content and structure USO v Wong; 3. Statement of Claim drafting exercise in groups; 4. Discussions of draft pleadings, drafting defences, content and rules including Civil Liability Act, contributory negligence and contribution; 5. Discussion of draft defences. Drafting replies and cross claims. No compensation order 5. The Applicant does not press paragraph 7 of the Application on the basis that the claims of Mr and Mrs Stern for compensation have been settled in other proceedings between them and the Respondent to their satisfaction. Agreed Statement of Facts 6. Annexure A to this Instrument is a Statement of Facts upon which the parties, and the Legal Services Commissioner ("the Commissioner"), agreed. Agreement of the Legal Services Commissioner 7. Pursuant to subsection 564(4) of the Legal Profession Act 2004, the Legal Services Commissioner agreed to the terms of this Instrument 7 In accordance with the provisions of section 564 of the Legal Profession Act 2004, the Instrument of Consent was endorsed not only on behalf of the Council of the New South Wales Bar Association and the Respondent barrister, but was also endorsed by the Legal Services Commissioner. The Agreed Statement of Facts annexed to the Instrument of Consent appears as an annexure to this Decision. 8 At the hearing the Tribunal had before it the affidavit of Mr Phillip Selth, Executive Director of the New South Wales Bar Association, detailing the course of the investigation of the complaints against the Respondent barrister. Over 1500 pages of documents were exhibited and contained in four large folders. The parties took the opportunity of drawing the Tribunal's attention to particular aspects of that documentation in support of the Orders sought by consent. 9 With the benefit of addresses by counsel and a perusal of the numerous documents available to the Tribunal it was established that, soon after accepting the brief to act for Mr and Mrs Stern, the Respondent barrister became concerned as to the nature and quality of the material briefed to him by way of instructions and on several occasions requested that senior counsel be engaged because of what he regarded as the complexity of the issues. Those documents indicate that, at least at one point, very experienced senior counsel thought that the pleadings drawn by the Respondent barrister were adequate but the Court of Appeal was unable to identify a recognisable cause of action amongst the multitude of matters contained in the pleadings. Although the pleadings were not analysed in detail before the Tribunal a perusal of those pleadings, together with the comments of the strongly expressed views by a number of Judges, shows that the pleadings were unnecessarily detailed in recounting numerous aspects of the relationship, thus obscuring what might otherwise have been a simply pleaded cause of action. Indeed, during the course of the further amendment of the pleadings the Respondent barrister had the assistance of advice from experienced senior counsel but again, the pleading was struck out. It was noted that, following the appearance in the Court of Appeal, the Respondent barrister took the step of seeking the advice of other senior counsel in relation to whether or not a particular aspect of the pleading namely, a claim in tort, might nevertheless be maintained notwithstanding the observations made by members of the Court of Appeal and terms drafted by his then leader. Prior to the proceedings in the Court of Appeal, the Respondent barrister had sought the advice of another barrister following the pleadings being struck out in the District Court. The Respondent barrister was advised that while the pleadings were, in some aspects, confusing it was more a matter of them being inelegant and requiring some clarification. 10 While accepting without reservation the inadequacies of the pleadings, senior counsel for the Respondent barrister referred to the terms of the Reply to the complaint filed in July 2005 by the Respondent barrister. That document put in context the Respondent barrister's actions and showed that, from a very early time, he had pressed his instructing solicitor to brief senior counsel experienced in the area. The Reply also dealt with the circumstances in which he had become deeply involved in the preparation of the necessary material to support the pleadings because of difficulties with his instructions and the fact that he found it necessary to perform much of the work usually performed by the solicitor. The Respondent barrister's personal circumstances were also canvassed and how he came to be placed in the position of re-drafting the pleadings in a very short time frame because of other difficulties. 11 While attention was drawn to these matters, senior counsel for the Respondent barrister stated that, nevertheless, his client recognised the serious way in which he fell short of appropriate standards and had recognised the importance and appropriateness of a public reprimand and the need to undertake a suitable pleading course. 12 At the conclusion of evidence and submissions, the Tribunal was satisfied that there was no need to continue the hearing and that, in all the outlined circumstances, it was appropriate that the Tribunal make the Consent Orders sought by the parties. The background of the matter, so fully set out in the Agreed of Statement of Facts, satisfies the Tribunal that the Consent Orders represent an appropriate result and also achieve the important objective of serving to protect the public and encourages the adoption of high standards of practice in the profession. ORDERS 13 The Tribunal, by consent, makes the following Orders: 1. A finding that the conduct of the respondent as particularised in Ground 1 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 2. A finding that the conduct of the respondent as particularised in Ground 2 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 3. A finding that the conduct of the respondent as particularised in Ground 3 of the First Schedule constituted unsatisfactory professional conduct in that it fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. 4. (a) - an order reprimanding the Respondent, pursuant to subsection 562(2)(e) of the Legal Profession Act 2004; and (b) - an order that the Respondent undertake and satisfactorily complete the course on drafting pleadings, defence and cross-claims conducted by the Bar Association of NSW in the October 2008 Bar Practice Course: 1. Case Analysis/Case Theory/Identification of issues and Necessary Evidence; 2. Drafting originating process: the rules, content and structure USO v Wong; 3. Statement of Claim drafting exercise in groups; 4. Discussions of draft pleadings, drafting defences, content and rules including Civil Liability Act, contributory negligence and contribution; 5. Discussion of draft defences. Drafting replies and cross claims. 5. An order that the decision of the Tribunal in this matter be published. 6. An order that the respondent pay the costs of the Applicant in these proceedings. ANNEXURE AGREED STATEMENT OF FACTS The Respondent is a practising legal practitioner 1. The Respondent was admitted as a solicitor of the Supreme Court of NSW on 10 April 1987. He was admitted as a Barrister of the Supreme Court of NSW on 3 August 1990. He currently holds an unrestricted practising certificate which will expire on 30 June 2008. The Initial claim - a building contract dispute 2. Some time prior to 2001 Mr and Mrs Stern entered into a contract with a building firm, Hayvale Pty Ltd ("Hayvale"), for the provision of certain building services relating to the renovation of their home at 12 Nancy Street, North Bondi. 3. A dispute arose between the Sterns and Hayvale in respect of the performance of the contract by Hayvale. 4. On 15 September 1999, Hayvale filed a Statement of Liquidation Claim in the Local Court for $27,367.60 seeking payment of monies said to be owing under the building contract to it for building services. 5. Mr and Mrs Stern instructed Warren Glass, solicitor, of Warren B Glass & Associates, Solicitors and Attorneys, 8 Nancy Street, North Bondi to act for them in defending the claim of Hayvale and to bring a cross claim on their behalf seeking recovery of various damages claimed to have been caused by Hayvale. 6. On 26 April 2000, a Defence and Cross-Claim (containing 3 numbered paragraphs and claiming damages of $14,700.00) were filed on behalf of the Sterns in the Local Court. The respondent's retainer 7. Mr Glass briefed the respondent as counsel to advise and appear for Mr and Mrs Stern in the litigation between them and Hayvale. 8. The respondent states that when he was first briefed in the matter by Mr Glass, the action by Hayvale against Mr and Mrs Stern was still in the Local Court but the Defence and the Cross-Claim had already been filed for Mr and Mrs Stern by Mr Glass. 9. The respondent states that when he was first briefed by Mr Glass he formed the view that Mr and Mrs Stern's cross claim was for an amount in excess of the jurisdictional limit of the Local Court. He advised a transfer of proceedings from the Local Court to the District Court. 10. On 25 January 2001, the proceedings were transferred to the District Court in accordance with orders sought by the Sterns in a Notice of Motion, which, with the supporting affidavit, was drafted by the respondent. 11. On 15 August 2001, Hayvale filed an Amended Statement of Liquidated claim in the District Court (containing a minor change to the amount claimed). 12. Mr Glass ceased to act as the solicitor for Mr and Mrs Stern on or about October 2001 and in substitution for him they instructed the firm of Dennis & Co, Solicitors, to act for them. 13. Mr Bruce Hocking conducted the matter for and on behalf of Dennis & Co. Mr Jones continued to be retained as counsel. The District Court proceedings up to the first strike-out of the Stern's cross-claim 14. The first directions hearing in the District Court was on 11 December 2001 at which a timetable in regard to the further conduct of the proceedings was set down. 15. ... (deleted) 16. On 28 November 2001, an Amended Defence and Amended Cross-Claim (containing 35 numbered paragraphs) was filed in the District Court in which Mr Fred Delpopolo, the principal of Hayvale, was, by consent, added as a Second cross-defendant. The respondent drafted both documents. 17. On 11 December 2001, her Honour Judge Gibb made certain orders including the filing of a further amended defence and cross-claim by 16 January 2002. 18. The Sterns did not file their Further Amended Cross-Claim by the date ordered by her Honour Judge Gibb. 19. On 8 April 2002, her Honour Judge Gibb made certain further orders including the filing of a Further Amended Cross-Claim by 23 April 2002 due to the non-compliance with her Honour's previous order. 20. The Sterns did not file their Further Amended Cross-Claim by the date ordered by her Honour Judge Gibb. 21. On 9 May 2002, a Further Amended Defence and Further Amended Cross-Claim (containing 64 numbered paragraphs) and a Statement of Particulars pursuant to Part 9 Rule 27 of the District Court Rules was filed and served by the Sterns. The respondent drafted all those documents. 22. By letter dated 28 May 2002 the Sterns were invited to amend the Further Amended Cross-Claim by the solicitors for the cross-defendants on the basis that there were substantial formal defects contained therein and the cross-defendants were denied a fair opportunity to properly plead a defence. 23. By letter dated 31 May 2002 the Sterns, by their solicitors, Dennis & Co, rejected the said invitation to replead and stated that any further application to strike out the Further Amended Cross-Claim would be opposed. This response was on the advice of the respondent. 24. By letter dated 5 June 2002 the cross-defendant's solicitors notified the Sterns that in their opinion all reasonable steps had been taken to allow the repleading of the cross-claim in proper form. 25. On 17 June 2002, the cross-defendants filed a motion which sought orders including the striking out of the Further Amended Cross-Claim on the claimed basis of the failure by the Sterns to replead the Further Amended Cross-Claim in proper form. 26. On a number of occasions, commencing in late 2001 and continuing until August 2002, the respondent asked the solicitor to retain senior counsel to lead the respondent and to settle pleadings. The solicitor did not retain senior counsel until Mr Grieve QC was briefed in 2003. 27. On 6 August 2002 his Honour Judge Solomon heard the motion in the District Court. The respondent appeared before his Honour as counsel for the Sterns. 28. His Honour granted the motion and made certain findings and orders including: (a) a statement directed to the respondent as counsel for the Sterns: It's the last bite of the cherry. Now that will satisfy you because then you'll have a framework - it should satisfy you because I've told you how to plead the document. (b) an order that the Sterns replead their Cross-Claim within the terms specified by his Honour. (c) an order that the Sterns pay the costs of Hayvale and Mr Delpololo for the motion on an indemnity basis. The Strike Out of the Second Further Amended Cross-Claim and dismissal of all cross-claims. 29. On 6 September 2002 (pursuant to the orders made by his Honour Judge Solomon of the District Court on 6 August 2002) the Sterns filed and served a Second Further Amended Cross-Claim comprising 89 paragraphs claiming damages of $2,500,000.00. This pleading was drafted by the respondent. 30. On 21 October 2002 the cross-defendants filed a motion alleging failure by the Sterns to remedy the defects identified by his Honour Judge Solomon and the non-conformance of the Second Further Amended Cross-Claim with Part 5 rule 6A of the District Court Rules. The motion sought orders that: (a) the Sterns Second Further Amended Cross-Claim be struck out pursuant to Part 9 rule 17 of the District Court Rules; (b) in the alternative, the Second Further Amended Cross-Claim be dismissed pursuant to Part 11A rule 3 of the District Court Rules; and (c) costs 31. On 9 December 2002 His Honour Acting-Judge Andrews heard the motion. The respondent appeared before his Honour as counsel for the Sterns. His Honour made findings adverse to the Sterns and orders including an order that the Second Further Amended Cross-Claim be dismissed. The basis for his Honour's order of dismissal was the inappropriate pleading of the Stern's cross-claims in the Second Further Amended Cross-Claim, and he exercised his powers under Part 11A Rule 3 of the District Court Rules. Appeal to the Court of Appeal 32. On 13 March 2003 the Sterns filed process in the Court of Appeal seeking leave to appeal and appealing the decision of his Honour Acting-Judge Andrews. 33. On 21 August 2003 the Court of Appeal heard the application for leave to appeal and appeal. Mr Grieve QC appeared with and leading the respondent. The cross-defendants were represented by Mr Stitt QC, leading Mr Mendel. 34. In discussion with Mr Grieve his Honour Mr Justice Ipp remarked upon the drafting of the cross-claim, in the Second Further Amended Cross-Claim: The way in which it is pleaded now is very bad. I can see that there must potentially be a cause of action somewhere. It's been concealed in a mass of allegations that are extravagant and incoherent. 35. After further discussion between the Bench and the Bar table and a short adjournment in which senior counsel for the parties conferred the Court of Appeal made orders by consent granting leave and allowing the appeal on the basis that the dismissal of the Sterns' cross-claim in whole by Acting-Judge Andrews was set aside and the Sterns were given leave to re-plead their cross-claims upon the limited basis only of seeking damages for breach of contract. The strike out of the Third Further Amended Cross-Claim 36. On 28 August 2003 the matter was listed before her Honour Judge Gibb in the District Court for the purpose of further directions at which time her Honour ordered inter alia that the Sterns file and serve a further amended defence and cross-claim by 1 September 2003. 37. On 2 September 2003, the Sterns filed a Further Amended Notice of Grounds of Defence and Third Further Amended Cross-Claim. This pleading was drafted by the respondent following consultation with Grieve QC and following review of the further amended notice of grounds of defence and notice of second further amended cross-claim drafted by Grieve QC and faxed to the respondent by the respondent's instructing solicitors in August 2003. 38. On 31 October 2003 the cross-defendants filed a motion that this Third Further Amended Cross-Claim be struck out on the basis that it was still defectively pleaded and did not conform with the orders made by the Court of Appeal on 21 August 2003. 39. On 4 December 2003 his Honour Judge Phegan heard the motion of the cross-defendants. The respondent appeared before his Honour as counsel for the Sterns. 40. His Honour upheld the motion and ordered that: (a) the Third Further Amended Cross-Claim be struck out; (b) The Sterns to have leave to file a Fourth Further Amended Cross-Claim, but only against Hayvale and only in strict compliance with the orders of the Court of Appeal on 21 August 2003; (c) The Cross-Claim against the Second Cross-Defendant, Mr Delpopolo, be dismissed with costs; (d) costs of the motion be paid by the Cross-Claimants as agreed or faxed forthwith; (e) The Fourth Further Amended Cross-Claim to be filed within 7 days of payment of such costs but not before such costs are paid in full. 41. His Honour noted that the solicitor for the Sterns would meet the costs order following an indication by counsel for the Sterns that such an undertaking would be provided. 42. His Honour Judge Phegan stated to the respondent as counsel for the Sterns: You're had your opportunities and your still not taking them but I am prepared along the lines foreshadowed to contemplate one last chance... The Fourth Further Amended Cross-Claim and eventual settlement 43. On 8 December 2003 the matter was listed for further directions before her Honour Judge Balla. The respondent appeared as counsel for the Sterns. Her Honour informed him that, subject to the orders made on the 4 December 2003, his clients would not be permitted an unlimited time in which to pay the costs and to progress the matter given the size of the file and at least two years having elapsed since commencement of proceedings. 44. Further, her Honour ordered that the matter be stood over for further directions on 16 February 2004 at which time, if the costs are not paid, she would hear from the Cross defendant any application to have relevant pleadings dismissed and the matter finalised; and 45. By letter dated 12 December 2003, the cross-defendants through their solicitors requested payment of the Plaintiff's costs as ordered by Judge Phegan and Judge Solomon. 46. There was an offer as to those costs made but rejected in January 2004. 47. On 16 February 2004 the matter was before her Honour Judge Balla for further directions, at which time her Honour stood the matter over to 20 February 2004 to hear argument as to the costs dispute and for further directions. The respondent appeared as counsel for the Sterns. 48. On 20 February 2004, her Honour Judge Balla made various orders as to the assessment and payment of the costs as ordered by Phegan DCJ and Solomon DCJ forthwith, and that: the Sterns be not permitted to file a Fourth Further Amended Cross-Claim until payment was made of those costs. The respondent appeared as counsel for the Sterns. 49. Between February 2004 and June 2004 the parties were in dispute over the assessment and payment of the costs ordered to be paid to the cross-defendants. There were further directions hearings before the District Court in which the respondent appeared as counsel for the Sterns. 50. On 25 March 2004, as the Sterns had not filed any further cross-claim and they had not complied with the directions to pay outstanding costs orders which was a pre-condition of filing, her Honour Judge Bella made an order severing the hearing of the Fourth Further Amended Cross-Claim from the Plaintiff's Amended Statement of Liquidated Claim. 51. On 9 June 2004, without there being satisfaction of the costs orders made against the Sterns, unsealed copies of a Fourth Further Amended Cross-Claim were served on the solicitors from Hayvale. This pleading was drafted by the respondent. The solicitors for the Sterns attempted to file this document but the Court's Registry rejected the document. 52. There being further non compliance with the costs orders and a purported reliance on the unsealed copy of the Fourth Further Amended Cross-Claim on 16 June 2004 the matter was listed before his Honour Judge Phegan at the request of Hayvale to hear a motion. The respondent appeared as counsel for the Sterns. 53. After hearing argument his Honour upheld the motion and ordered that: (a) The Sterns pay the Plaintiff's costs from 14 May 2004 to that date on an indemnity basis, assessable forthwith; and (b) leave to file a Fourth Further Amended Cross-Claim be granted, subject to payment of $20,000 being part of the costs owed to the cross-defendants. 54. His Honour also made the following comment on this occasion: Can I just now add this for the record and I underline the record because I want this on the record that it seems to me that this Court, and in the guise now of an almost countless number of judges, has extended its concern for the resolution of the case in a way that takes proper account of the defendant's interest as far as it could reasonably go and whether it's, and it won't be me, but I would still say this for the record, that the defendant should not seriously expect any further indulgence of any kind from any other judge of the Court in the resolution of the matter. This matter has gone as far as it could reasonably go in attempting to accommodate the needs of the defendant to put on a cross-claim, that the opportunities it seems to me have now been entirely exhausted and that there is simply no room for any further excuses and that it is certainly a matter which certainly should be acknowledged and certainly should be seen and quite reasonably relied on by the plaintiff should there be any further interruptions in which there is the need for any further costs orders. 55. On 18 June 2004 the Plaintiff's Amended Statement of Liquidated Claim was before his Honour Judge Garling for listing for final hearing on 21 September 2004. The respondent appeared as counsel for the Sterns. He advised the Court that in his opinion the hearing could take up to 14 days by reason of the recently filed Fourth Further Amended Cross-Claim. His Honour then listed the matter before her Honour Judge Balla on 22 June 2004 with a view to determining the preliminary question of how long the hearing would take. 56. On 22 June 2004 the matter was again before Judge Balla for directions. The respondent appeared as counsel for the Sterns. Her Honour: (a) noted that the Fourth Further Amended Cross-Claim had been filed on 16 June 2004; (b) noted that the order made by her on 25 March 2004 severing the hearing of the Fourth Further Amended Cross-Claim from the Plaintiff's Amended Statement of Liquidated Claim was to continue; (c) directed that the Fourth Further Amended Cross-Claim will be listed for directions on 23 August 2004; and (d) ordered that the Defendants pay the Plaintiff's costs of the day. 57. On 9 July 2004, the matter was re-listed with a view to vacating the hearing date of the Plaintiff's Amended Statement of Liquidated Claim on 21 September 2004. Her Honour Judge Sidis vacated the hearing date (and ordered the plaintiff to pay the defendant's costs of the vacation) and referred the matter to his Honour Judge McLaughlin who listed the Plaintiff's Amended Statement of Liquidated Claim for hearing on 2 November 2004 with an estimate of three days plus. 58. On 25 August 2004 a certificate of costs was issued in respect of the costs order made by his Honour Judge Solomon on 6 August 2002. 59. Because of further non-compliance by the Sterns with the costs orders and directions made, Hayvale filed a motion to dismiss or strike out the Fourth Further Amended Cross-Claim. That motion was eventually listed for hearing on 22 October 2004. 60. On 7 October 2004 the solicitor for the Sterns served by facsimile upon the solicitor for Hayvale a document entitled "Notice of Proposed Fifth Further Amended Cross-Claim" This pleading was drafted by the respondent. 61. In July 2004 the respondent was involved in a motor vehicle accident and sustained a whiplash injury. In the period following the respondent communicated to his instructing solicitor the physical pain and disability being suffered by him was such that his restricted ability to work required him to cease to act in the matter. On 16 September 2004 the respondent returned the brief to his instructing solicitors. 62. The solicitors for the Sterns briefed Mr Grieve QC to appear for them at the hearing of the motion on 22 October 2004. Upon instructions and in all the circumstances, which clearly placed the Sterns in a position where they were exposed to further adverse orders and large costs orders, Mr Grieve negotiated a settlement between them and Hayvale. The Sterns accepted liability for $75,000 for costs and damages, and had their own cross-claims dismissed. The complaint 63. In a letter dated 3 November 2004, the Legal Services Commissioner referred to the Applicant a complaint made by Mr Harry Stern and his wife Mrs Kathy Stern in a letter dated 25 October 2004 about the conduct of the respondent ("the Stern complaint"). The investigation 64. The course of the investigation of the Stern complaint by the Applicant is set out in detail in the affidavit of Philip Alan Selth sworn on 18 October 2007 and filed on 19 October 2007. 65. All relevant documents in relation to the conduct of that investigation and the substantive matters relevant to the Stern complaint are exhibited to the said affidavit as "PAS1". The respondent admits his unsatisfactory professional conduct 66. The respondent admits that his pleading of the Second Further Amended Cross-Claim filed on behalf of Mr and Mrs Stern on 6 September 2002 fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner and constituted unsatisfactory professional conduct within the meaning of the Act. 67. The respondent admits that his pleading of the Third Amended Cross-Claim filed on behalf of Mr and Mrs Stern on 2 September 2003 fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner and constituted unsatisfactory professional conduct within the meaning of the Act. 68. The respondent admits that his pleading of the Fourth Further Amended Cross-Claim filed on behalf of Mr and Mrs Stern on 16 June 2004 fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner and constituted unsatisfactory professional conduct within the meaning of the Act. 69. The respondent admits further that his actions as above caused loss to the Sterns and a claim for compensation for such loss has been settled. 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.