Law Society of New South Wales v Berry [2005] NSWADT 46

Set aside by Appeal : Set aside by appeal on 28/04/2005 (Supreme Court - Common Law Division - No. 10776 of 2005)

CITATION: Law Society of New South Wales v Berry [2005] NSWADT 46 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Graham Leonard Berry FILE NUMBER: 042026 HEARING DATES: SUBMISSIONS CLOSED: 02/10/2005 DATE OF DECISION: 03/04/2005

BEFORE: Fox R - Judicial Member; Riordan M - Judicial Member; Mara A - Non Judicial Member APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Carver v Law Society of New South Wales (1998) 43 NSW LR 71 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 CASES CITED: S and M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd (1988) 12 NSW LR 358 Prothonotary v Richard [NSWCA 31.7.1987] New South Wales Bar Association v Howen (number 2) [2003 NSWADT 235] APPLICANT REPRESENTATION: L Pierotti, solicitor RESPONDENT P Kintominas, barrister ORDERS: 1.The Solicitor's name be struck from the roll of legal practitioners; 2.The Solicitor to pay the costs of the Council of the Law Society of New South Wales as agreed or assessed.

REASONS FOR DECISION 1 The Solicitor Graham Leonard Berry has practiced for forty five (45) years. He has reached the age of sixty nine (69), and this is his fifth appearance before this Tribunal in the last thirteen years. This, and the previous two involved failure to comply with a Section 152 Notice. The Solicitor admits the failure in this matter. 2 At the commencement of the hearing on 27 October 2004 Mr Kintominas on behalf of the Solicitor objected to my hearing the matter, for apprehended bias arising from my membership of the Council of the Law Society of New South Wales in 1995 when the Council apparently considered a matter then raised against the Solicitor. 3 I ceased to be a member of the Council in October of 1995 and shortly thereafter was appointed to a predecessor of this Tribunal. The matter now before us arose in July 2003. We note that Mr Kintominas properly raised the Court of Appeal matter of Carver v Law Society of New South Wales (1998) 43 NSW LR 71, but it was to an application arising out of the membership of the Council at the time when it instituted the proceedings. That is not the case here, there is a seven (7) year plus gap. Of course, the principle in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 is that disqualification does not automatically follow from the fact that the prospect of a perception of bias is raised. The view of the ordinary reasonable citizen on the Emu Plains Omnibus (see Kirby P in S and M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd (1988) 12 NSW LR 358 at 375-6) in our view could not possibly be that, arising out of an association more then seven (7) years gone, there was any prospect of bias in my consideration of this matter. 4 We take comfort from the fact that the Solicitor's admissions raise a relatively narrow issue for our consideration, that of penalty alone. 5 During argument it was also suggested that, apart from an apprehension of my personal bias, there could be an apprehension of bias in relation to the whole panel, because in argument it was clearly disclosed that there had been a prior matter brought against the Solicitor. We rejected this suggestion, again, in view of the admissions made by the Solicitor. These admissions inevitably led to a finding of statutory misconduct pursuant to Section 152 (4) and resulted in the only "live" issue before the Tribunal being that of penalty. In any consideration of penalty, the Solicitor's prior record must be disclosed, and consequently it is not possible to understand how there could be any suggestion of an appearance of the judgment of the panel being clouded by information "inadvertently" disclosed during argument, when that same information must be disclosed to the panel before it makes its decision. The situation might perhaps have been different had there been other matters of fact on which the Tribunal had to make a decision, but that cannot be so in circumstances where the admissions made in the Solicitor's Reply are such that a finding of misconduct is mandated by the statute. 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 171 C (2) (b) and adjourned the matter to 10 February 2005. 7 On that day the Solicitor filed Affidavits by Gerard Glancey, psychologist and his treating doctor Joseph Nathan Waks in relation to his medical condition, and character evidence of Jeffrey Brooks Evans Barrister, and George Richard Rummery QC retired District Court Judge. All were called for cross examination. 8 We accept the fully informed views of both character witnesses. The Solicitor is a lawyer of excellent repute and principles, and the behaviour which brought him before us was inexplicable to them. 9 Mr Glancey was cross examined at length, and satisfied us that the Solicitor's apparent disregard for demands for information came not from stupid obstinacy but from a personality trait, exacerbated by clinical depression. The latter could be cured by medication and psychotherapy, and the former could be modified by the same psychotherapy over a course of treatment which would take three (3) months or longer. Dr Waks gave evidence to establish that the course of medication had commenced within the last week or so. 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. 11 As was stated that at the outset of these Reasons, the Solicitor having admitted a failure to comply with a Section 152 Notice, thereby conceding professional misconduct, the only matter left for our consideration was what order we might make within the regime set by Sections 171 C – 171 E and we are not persuaded that the most extreme order is not appropriate. 12 We are also mindful of the observations of the Court of Appeal in Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 231 in its reference to Prothonotary v Richard [NSWCA 31.7.1987] holding that "an order striking off the roll should only be made when the probability is that the Solicitor is permanently unfit to practice". 13 Of course we are mindful of the devastating effect which our Order will have on the Solicitor, but our public duty is clear. Our attention was drawn to the matter of New South Wales Bar Association v Howen (number 2) [2003 NSWADT 235], a matter involving not dissimilar facts, being failure to comply with several Section 152 Notices brought about by an episodic psychological condition. The Tribunal in Howen observed (paragraph 24) "the offences are closely related" and, because the Tribunal was satisfied of Howen's "determination not to indulge in the same or similar conduct again" (paragraph 26) did not strike him off. 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. 15 It is perhaps appropriate to indicate that our orders might well have been different had the Solicitor established that his medication and psychotherapy were having the predicted curative effect, perhaps linked with an acceptable supervision program. It is also appropriate for us to state that we would not wish the Solicitor to be denied access to a legal office where his talents could be employed in an appropriately supervised role. Orders:- 1. The Solicitor's name be struck from the roll of legal practitioners. 2. The Solicitor to pay the costs of the Council of the Law Society of New South Wales as agreed or assessed.