Legal Services Commissioner v Ball [1999] NSWADT 45

CITATION: Legal Services Commissioner v Ball [1999] NSWADT 45

DIVISION: Legal Services

APPLICANT: Michael Lee Ball

RESPONDENT: The Legal Services Commissioner

FILE NUMBER: 9813

HEARING DATES: 03/29/1999

SUBMISSIONS CLOSED: 03/29/1999

DATE OF DECISION: 29 June 1999

G Molloy Presiding Judicial Member BEFORE: C Staff - Judicial Member D Mahon - Member

PRIMARY LEGISLATION: Legal Profession Act 1987

APPLICATION: Professional misconduct - solicitor ; Unsatisfactory professional conduct - solicitor -

MATTER FOR DECISION: Interlocutory application for particulars by Respondent

Applicant: M Marien of counsel instructed by the Legal Services Commissioner REPRESENTATION: Respondent: J Sacker QC of counsel with A Payne instructed by Minter Ellison

1. The informant provide further and better particulars of the Grounds of Complaint in the Information, as requested by the legal practitioner in his solicitors' letter dated 4 June 1998 on or before 30 July, 1999. ORDERS: 2. Costs reserved. 3. Liberty to either party to restore the Application to the list at a time convenient to the Tribunal to agitate any other matter raised in the legal practitioner's Application filed 29 March 1999 and/or any other matter for which reasonable notice is given

1 It goes without saying that there is, in the Commissioner for Legal Services and in the Law Society, "no absolute duty to bring proceedings against a legal practitioner ….(and that any such proceedings must only be brought) after very careful deliberation and carefully weighing up the evidence and the chances of success and only after a careful investigation, careful interview of the witnesses and a professional assessment of the chances of success .....(it) is a very serious matter to bring disciplinary proceedings against a (legal practitioner)( as it is) a very serious matter to find a (legal practitioner) guilty of any sort of professional misconduct or unsatisfactory professional conduct ..... and it is also a very serious step for the Society or the Commissioner to file (an Information) against a legal practitioner alleging professional misconduct or unsatisfactory professional conduct. The consequences to a legal practitioner who is served with such (an Information) are highly traumatic. At the very least his/her professional reputation is being put at risk and, at the most, he/she is likely to have their name removed from the Roll. Furthermore, the result can be extremely expensive because the legal practitioner should properly obtain independent legal advice as to his/her position, be legally represented and generally be put to a great deal of time and expense in resisting the (Information) if it is to be contested. Consequently, it must follow that proceedings should only be brought in this Tribunal after careful consideration and weighing up all the facts" (see re Mark Philip Symonds (1995) 2 LPDR 10 at 12).