Set aside by Appeal : Set aside by Appeal on 21/06/2005 (Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29) CITATION: Law Society of NSW v Khera [2004] NSWADT 25 DIVISION: Legal Services Division APPLICANT PARTIES: The Council of the Law Society of New South Wales RESPONDENT Jaswant Khera FILE NUMBER: 012024 HEARING DATES: 22-23/10/2002, 27/11/2002, 2/12/2002, 20/12/2002, 28/03/2003, 31/03/2003, 1/04/2003, 25/06/2003, 27/06/2003, 8-9/09/2003, 28/11/2003, 16/12/2003 SUBMISSIONS CLOSED: 12/12/2003 DATE OF DECISION: 02/09/2004 BEFORE: Fox R - Judicial Member; Pheils J - Judicial Member; Mara A - Member APPLICATION: Professional Misconduct - breach of Rules - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to carry out instructions - Professional Misconduct - fail to pay counsel's fees - Professional Misconduct - mislead client - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - mislead Solicitor - Unsatisfactory Professional Conduct - deal with file contrary to instructions - Unsatisfactory Professional Conduct - fail to reach reasonable standards of competence and diligence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: I Wales SC, counsel RESPONDENT In person ORDERS: 1 The Practitioner's name be removed from the rolls; 2 The Practitioner pay half of the Law Society's costs 1 By an information filed 5 October 2001 the Law Society raises 9 allegations of professional misconduct and 3 allegations of unsatisfactory professional conduct against Jaswant Khera ("the practitioner"). The practitioner has filed a defence denying all allegations and seeks that the information be either dismissed, or permanently stayed. The hearing was protracted, 15 hearing days are noted, and evidence relevant to the facts in issue was heard on 8 of those days. 2 It is a fair summary of the submissions in support of the stay to say that it was based entirely on the passage of time and the consequent fact that the practitioner was not always able to gain possession of his instruction files. As the practitioner proposed no separate evidence in support of the "stay" application, it was appropriate that we first hear all evidence and then consider both the submissions in relation to the stay as well as the defence. 3 Most of the allegations of misconduct and one of the allegation of unprofessional conduct arise out of 3 separate matters: 1. The Ranjana Narayan third party personal injury claim (Professional misconduct Grounds 2,3,7,8 &9 and Unsatisfactory professional conduct Ground 1, transfer file without approval). At the outset of the hearing the Law Society indicated that ground 9 was not pressed. 2. The Purchase of land at Bonnyrigg by Jainendra and Ranu Narayan (Professional misconduct Ground 4 mislead Law Society & Ground 7, overcharge and unsatisfactory professional conduct; Ground 3, incompetence). 3. The Punja Family law dispute (Professional misconduct Grounds 5, fail to pay Counsel & 6, fail to comply with Section 61). The other matters arise out of:- 4. Penrith Local Court proceedings (Professional misconduct ground 1, breach of Rule 26). 5. Misleading the Law Society as to the status of Khera's the Law Firm (professional misconduct ground 4) and 6. Unsatisfactory professional conduct of failing to pay another practitioner for work performed. 1.The Ranjana Narayan third party claim 4 There are two broad aspects to this complaint. (i) The first aspect alleges that the practitioner persuaded his clients to settle a personal injury claim for a sum which may well have been significantly less than the claim was worth. (Ground 2 professional misconduct) (ii) The second aspect relates to the manner in which the matter was costed, namely in delaying or failing to carry out instructions, misleading another practitioner, misleading his client and overcharging (Grounds 3,7 &8 professional misconduct) and dealing with the file contrary to instructions (Ground 1, unsatisfactory professional conduct) 5 The solicitor, as sole practitioner, acted for Mrs Ranjana Narayan in relation to a third party personal injury claim arising out of a motor vehicle accident which took place on 24 April 1990. On 1 October 1992, the practitioner commenced practice in partnership with Mr Ian Jones under the name of "Kheras The Law Firm". The file was handled by a number of solicitors including the practitioner and Mr Ian Jones. Mr Keith Manion of counsel held the brief and had a conference with the client and Mr Jones on 6 July 1993. 6 Mrs Narayan had been employed by Continental Airlines and as a result of her injuries had been retained on light duties. There was a District Court status conference in the matter on 19 August 1993. This was, coincidentally, on the day that Continental Airlines ceased to operate in Australia. Mr Manion advised the Court that, in light of this, the claim for future economic loss would need to be amended and a fresh pleading timetable was set by the Court ending in a pre-trial conference on 7 December 1993. 7 In the meantime the Khera/Jones partnership ceased to operate and the practitioner took possession of the file and resumed personal carriage of the matter on 10 November 1993. We accept that Mr Jones, on that day by letter, with a number of other files, alerted the practitioner of the work that needed to be done on the Narayan file prior to 30 November 1993 being, interalia, the filing of fresh particulars of claim and loss. 8 The practitioner had not filed these particulars, either by the due date, or by 6 December 1993. 9 The matter was settled at the pre-trial conference of 7 December 1993 for the sum of $20,500, plus costs as agreed or taxed. Mrs Narayan says that she had a number of telephone conversations with the practitioner on that day in regard to the settlement. Her evidence on this point is that the conversations culminated with the practitioner telling her she had no option but to settle the matter that day: "Narayan: the last time he said if you don't agree to this one the whole thing would be dismissed and you won't get anything so I just agreed at $20,500"(T/S 31.3.03 p53) 10 It is alleged by the Law Society that this matter settled for an amount significantly less than the claim was worth. There is no evidence directly on the issue of the value of the claim. 11 In a letter on the practitioner's file dated 7 December 1993 from the practitioner to Mr Manion, the practitioner asserts that he and Manion had a conversation on 7 December 1993, in which the practitioner advised that he had just become aware of the order to file fresh particulars and that it had not been complied with. The practitioner then asserts that Manion gave advice to the effect that the Judge may strike out the claim, and there was little that could be done to salvage the situation. 12 Manion said in evidence that he does not recall ever seeing this letter, and denies giving any such advice: "Manion: Now that is just a ridiculous assertion. The worst any Judge would do in the circumstances would be to hold you to the previous Part XII particulars. It would be immediately appealable if a Judge purported to strike out a claim for a mere procedural failure to follow a timetable where it is the Plaintiff's own application to amend to e Part XII particulars. Therefore, had I received this letter of 7 December 1993 I would have been on the phone before I finished reading it". (T/S 1/4/03 p8) 13 By letter of 8 December 1993, the solicitor wrote to Mrs Narayan stating: "We advised you of Counsel's advice that under the circumstances it is likely that the Judge may strike out your action altogether. Alternately the Judge may refuse to grant you leave to amend the Statement of Claim. There could also be questions of the Defendant's costs being awarded against you" 14 The practitioner exhibited his mail book to support the proposition that the letter to Manion was in fact sent. The Law Society contends that the book itself proves nothing, and goes on to say that if the practitioner fabricated the copy of the letter to Manion, it would be entirely consistent to fabricate a mail book entry. 15 The practitioner asserts that if Manion says that did not receive the 7 December letter, or recall it, it is because Manion lost or mislaid it. In support of this theory he cross-examined Manion about a brief lost by Manion on a previous occasion (see T/S 1/4/03ps 2 –18). Although the practitioner did not directly put to Manion that Manion had given the advice, Manion's evidence establishes that it is highly likely that he advised the practitioner of a prospect that there would be a costs order against the practitioner personally, because the pleading delay arose from the partnership dispute. 16 In the final analysis, the Tribunal must evaluate the tested evidence of the practitioner, Mr Manion, and Mrs Narayan. Despite the fact that these matters occurred a very long time ago, a fact which indicates that great care must be taken with the oral evidence not otherwise supported by notes or letters, we are satisfied to the requisite standard that the Barrister's and the client's evidence is to be preferred. The Tribunal finds that Mr Manion did not advise the practitioner that the matter could be struck out. 17 It follows that we accept that the practitioner misled his client about the Barrister's advice claiming a risk of an adverse result in order to gain her instructions to settle. The Law Society's claim of misleading the client is made out. 18 The second aspect of this complaint arises out of the manner in which the practitioner handled the assessment of the costs. For the two years after January 1994 a dispute ensued between the three parties, being the practitioner, Mrs Narayan and Mr Jones as receiver of Kheras the Law Firm about the final settlement of the party/party costs in the matter. It is alleged in this context that the practitioner misled both Mr Jones and Mrs Narayan in material details. 19 On or about 26 June 1992, Mrs Ranjana Narayan had signed a document entitled "Retainer Agreement". A copy of this document is tendered as part of Mrs Narayan's affidavit and bears hers and the practitioner's signature. Mrs Narayan does not dispute the authenticity of this document, although it is apparent from correspondence that the practitioner attempted to convince her that agreement had not been entered into (see letter Khera to Mrs Narayan 20 April 1994 Annexure I Exhibit 8). 20 Upon settlement of the matter, the practitioner required Mrs Narayan to sign an authority to the insurer to make cheques payable of $17 500 to Mrs Narayan and $3000 to the practitioner. A bill dated 8 December 1993 was given to Mrs Narayan in the amount of $3,000 for work done prior to the commencement of litigation between May 1990 and June 1991.It is alleged by the Law Society that this claim was grossly excessive and that insufficient work had been done by the solicitor in the period referred to justify such a bill. 21 We were offered no evidence to establish what might be a proper amount, and so are not persuaded to make a finding. 22 We do say that we accept that Mrs Narayan's evidence is indicative of what actually happened. "Fox: Well tell me this Mrs Narayan, what was your understanding of the $3000 that you paid, or authorised to be paid to Mr Khera? Narayan: When he asked me to sign that individually I asked him what it was for, but he didn't – he said there was no time to explain everything to me because he had to rush back before 2 o'clock and finalise all this,…I just had to sign it quickly and the he had to go. So to my understanding after that I kept on believing that that was the total fees from the company charged to me for the whole process that went on, but I never got any letters or anything from him that that was the charge the legal cost that he had worked for me, that were the legal costs for him, that $3000. Fox: But you understood that you were to get in your hand $17,500 as compensation for your injury claim? Narayan: Not when it was finalised. I got a call from him to say the decision was made, I was at home, and he said first he offered me $15,000 and I said no, that's too less and then he offered another amount and I said I have to check with my husband. So he said there is no check, he said it was the last time I will be offering $20,500 so then I agreed at $20,500, but at that time my understanding was that $20,500 was going into my pocket. I only found out when I got to his office that I was only getting $17,500."(T/S 31.3.03 p52) 23 This evidence is supported by part of the 8 December 1993 letter from the Practitioner to Mrs Narayan: "Under the circumstances you instructed us to settle the matter on 7 December 1993.We note your instructions that had the amended Statement of Claim been filed then you would have settled the matter only if the defendant offered you $30,000 plus party/party costs plus out-of-pockets in relation to Medical expenses. However, in view of the fact that the amended Statement of Claim has not been filed and keeping in mind the possible adverse consequences therefrom you instructed us to settle the matter if the Defendant offered $17,000 plus party/party costs plus out-of-pockets in relation to Medical expenses. We further confirm that the reason that you instructed us to agree on party/party costs was that the amount of our costs was not available and in the interest to the matter on 7 December 1993 you felt that this was the best formula to follow. We pleased to advise that the matter has settled during the Pre-Trial Conference on 7 December 1993 and the settlement terms are as follow: (i) A sum of $20,500 to be payable to you by the Insurance Company by way of compensation/settlement of your claim against the Insurance Company (ii) Out-of-Pocket expenditure by you for medical treatment to a maximum of $3000, less such amounts which the Insurance Company my (sic) have already paid to be payable to you by the Insurance Company. (iii) Party/Party legal costs to be paid by the Insurance Company." 24 The failure to ensure that his client manifestly and demonstrably had every possible opportunity to consider the effect of the settlement, and the amount it would actually put into her pocket as compensation, reflect very poorly on the practitioner. 25 The partnership split between Mr Jones and the practitioner was not amicable. Mr Jones was appointed receiver of the firm. Clearly Mr Jones was not aware that the matter had settled until he received a letter from the practitioner of 29 March 1994, and just as clearly the dissolved firm had a claim on part of the costs. 26 In the 29 March 1994 letter, the practitioner wrote:- "I note that there is no cost agreement between Mrs Narayan and either myself or the Partnership between you and I. The client advises me that when I accepted the instructions from her it was on the basis that I will accept such amount by way of fees and disbursements as is paid by the Insurer. I have similar recollection of the matter." 27 Sometime later Mr Jones contacted Mrs Narayan in respect of monies owed to him and counsel for work done on the file. In a letter dated 3 October 1994 Mrs Narayan instructs the practitioner to endeavour to have the party and party costs agreed by the defendant's insurer, or taxed or assessed in the absence of agreement. In a letter dated 11 November 1994 the practitioner undertakes to Mr Jones to have the file costed for the party/party costs, in the different periods it was handled by different solicitors. 28 The practitioner says that he had the file costed on Mrs Narayan's instructions in November 1994.In June 1995 the practitioner informed Mrs Narayan that her file had been costed and that a claim for costs had been made to the defendant's insurer. There is no evidence to confirm this. Mr Jones says that he ultimately had to prepare the account for the insurer when Mrs Narayan reinstructed him in 1995. 29 The evidence of Mr Jones is more compelling than that of the practitioner, but we note the high level of animosity between the two. There is a strong indication that the practitioner failed to follow Mrs Narayan's instructions to recover her costs for her. There is also a strong indication that the practitioner sought to mislead Mr Jones in relation to those matters. We also accept that there is a strong indication that the practitioner attempted to mislead Mrs Narayan to justify various claims for costs. 30 In June 1995 the practitioner had a final conversation with Mrs Narayan to the following effect: Khera " Will you write to me confirming that you will forfeit $600 from the $1200 being received from the insurance company" Narayan "Why do you want me to do that?" Khera "Well I will also forfeit $600 from the fees due to me and it will balance" Narayan " Would you write to me about what you have just told me" Khera "I do not have time to write to you as I am closing my business and after that I will not be responsible". 31 However considering all of the evidence we are not persuaded to the "Briginshaw" standard that adverse findings should be made in respect of the allegation that the practitioner misled Mr Jones. 32 There is a further allegation of unsatisfactory professional conduct in respect of the Narayan third party matter. From 4 September 1993, the practitioner practised as a sole practitioner under the name Khera & Associates and when the practitioner became employed by Shaw Lewis & Co solicitors, he took Mrs Narayan's file with him. At no stage did the practitioner advise Mrs Narayan that he had moved practice and Mrs Narayan did not consent to her file being dealt with in that fashion (affidavit Mrs Narayan par 32.) Again, we accept that the practitioner failed to take the correct course, but we do not propose to make an adverse finding, it is all a matter of technical detail. 2. The Purchase of Land at Bonnyrigg by Jaiendra and Ranu Narayan. 33 The three allegations arising out of this matter are that: (i) the practitioner misled or endeavoured to mislead the Law Society when it investigated the complaint (Professional misconduct ground 4); (ii) the practitioner handled the conveyance in a manner short of reasonable standards of competence and diligence (Unsatisfactory professional conduct ground 3); and (iii) Overcharging (Professional misconduct ground 7) 34 The solicitor acted for Mr Jainendra Narayan and Mrs Ranu Narayan in relation to the purchase by them of land at Bonnyrigg. The Narayans bought the land with the intention of building on it at a later date. The land was subject to a restriction pursuant to section 88B of the Conveyancing Act, prohibiting building on the land. However, the contract for the purchase required the Vendor to make available a Deed, executed by the local Council as the relevant consent authority, removing the restriction, and so allowing the land to be built upon. 35 Settlement took place on 10 September 1990. A notice to complete had been served by the vendor on 28 August 1990. Interest pursuant to the contract for sale accrued from 27 August 1990. The practitioner in these proceedings maintains that the settlement was to originally include the delivery by the Vendor of Deed of Release, but the Narayans did not wish to pay the interest and by way of compromise he negotiated to settle the matter without interest, and without receiving the Deed. 36 The Vendor's file has been tendered as Exhibit L in these proceedings. It is evident from this file that there was some delay in settling the transaction. There is handwritten file note on that file indicating, "Don't worry about the interest just settle". It is not apparent who wrote this note. There is no reference to any negotiation concerning the Deed. The settlement instructions on the file do not include the handing over of a Deed of Release. 37 Mrs Ranu Narayan's evidence was:- "At no time did Mr Khera advise me that the vendor's solicitor held the deed of release and would only hand it over if my husband and myself paid interest. The interest was never discussed with me by Mr Khera." 38 The practitioner gave evidence that he spoke to the Narayans both over the phone and in conference, and wrote letters to them giving them advice about the Deed of Release. He says he made substantial file notes of these attendances. He says that Mrs Narayan collected the conveyancing file in 1993 before she lodged the complaint to the Law Society. This file was subpoenaed in these proceedings. The practitioner asserts that only one file note remains on that file. The letters of advice and other notes have all gone missing. 39 Mrs Ranu Narayan gave evidence before the tribunal on 20 December 2002. She was cross-examined about the documents she produced in response to a subpoena issued by the practitioner seeking his file in the matter. The practitioner suggested to her that it was possible that documents had gone missing from the file, Mrs Narayan denied this was possible. She maintained in evidence that the practitioner had at no point discussed or advised on the possibility of paying interest upon late settlement. The practitioner produced a letter dated 28 August 1990 from him to the Narayans in respect of the matter which was not produced on her file. Part of that letter read "We promptly informed them [the Mortgagee bank] of the possibility that the vendor's solicitor might issue a notice to complete and charge interest under provisions of the contract, if settlement did not take place as outlined in the contract. Today we have received a facsimile message from the vendor's solicitor issuing us with the notice to complete, and indicating that they will be charging you interest under the terms of the contract". 40 Mrs Narayan then went on to deny ever receiving this letter. She said that at the time she was living with her in-laws and there were a number of people with a similar name staying at the address. 41 Subsequently, in July 1992, the Narayans contacted the practitioner upon finding out that they could not commence building work due to the restriction. The practitioner sent a letter to the vendor's solicitor on 10 August 1992 advising that his inquiries of Fairfield Council indicate that they are in possession of the Deed, and would they please forward it to him. On 19 August 1992 the vendor's solicitor forwarded the deed as requested without demur, or any request for payment of interest. 42 The Deed was lodged with the Land Titles Office, but registration could not be effected because the Title Deed had not been produced. The mortgagee bank (St George) claimed production fee of $82.50. Mrs Narayan duly provided a cheque and the matter was resolved. 43 For this later work the practitioner sent two accounts to the Narayans, one dated 26 August 1992 and the other dated 13 November 1992. The first account claimed registration fees of $50 in disbursements totalling $75 and was for $540. The first account was paid without question. The second claimed disbursements totalling $303.15, including $105 registration fees, and was for $768.15. This account was disputed, but in a conference in February of 1993, the Narayans were persuaded to pay this second account by 3 serially post dated cheques. 44 At this time the practitioner was in partnership with Mr Jones. The practitioner says Jones assumed the role of Managing partner, and was responsible for the accounts. Mrs Narayan says on 25 February 1993 she settled the second of 1992 accounts by providing 3 serially post date cheques to Mr Jones, that he had requested be post dated 19.9.93, 30.4.93 and 25.6.93, totalling $536.00. 45 In March 1993 Mrs Narayan collected the instruction file from the practitioner. The Narayans then lodged a complaint with the Law Society about the handling of the matter. By Letter dated 26 May 1993 to the Law Society the practitioner confirms that the 25 February:- "conference was concluded by Mr & Mrs Narayan agreeing to pay our costs as raised in our invoices and handed over three post-dated cheques to us." 46 Then, without any further work being done on the matter, on 6 September 1994, the practitioner issued yet another itemised bill of costs in the matter. In this bill the practitioner sought to claim a total sum for the work in 1992 of $1806.39, being an additional $498.24 to the total of the two 1992 accounts. The practitioner advised Mrs Narayan that since the complaint to the Law Society, he had scrutinised the file and discovered he had undercharged. 47 As a consequence of the complaint, the Law Society requested a response from the practitioner, and in a letter of 5 October 1994 (within a month of the 6 September 1994 itemised bill) he wrote to the Law Society stating: "For some reasons the Narayans were not able to settle the matter within the required time and from memory a notice to complete was served. The matter was completed within the time specified in the said notice but the vendor's solicitor requested that his client be paid interest. The Narayans refused to pay the interest. The vendor's solicitor indicated that he was in possession of the deed of release and that he would only hand it over if the Narayans agreed to pay the interest. The Narayans refused to do so on the grounds that the contract did not require then to pay interest. The necessary advice was given to the Narayans including the commercial reality as opposed to their legal rights. The Narayans elected not to worry about the deed of release and not to pay the interest." 48 The Law Society alleges that the above statement was, to the knowledge of the practitioner, false. The practitioner maintains his version is correct and he did not mislead the Law Society. Additionally when he wrote that letter he did so without the assistance of his file as it had been returned to the client. We find that, the practitioner was less than candid when he wrote these words because we are satisfied that he had all the relevant material some four weeks previously. 49 We accept that the completion of the conveyance was botched, there is no excuse for the failure to obtain the release which rendered the land capable of use for the very purpose for which it was bought. However, in isolation, such an error only calls for prompt remedial action when discovered. The complaint is that the practitioner lied to the Society in justification of his submission of bills for work, which was necessary only to remedy the practitioner's failure to do his job properly in the first place. We find to be untrue the assertion by the practitioner that he had written to the Narayans and that they had made the decision. 50 We were not given evidence of the calculated amount of interest, but the contract was in evidence, and the amount in question could not have been more than $450.00, an astonishing trade off for forsaking the right to build on land, purchased for that purpose, for $60,000. 51 We note that Mrs Narayan's oral evidence was not always satisfactory, but we do accept her as a witness of truth when she asserted that she had never instructed the practitioner to forgo the Deed in exchange for a waiver of interest. 3.The Punja Family Law matter 52 This allegation concerns two grounds: (i) The practitioner wilfully failed to pay counsel's fees, although put in funds for the purpose (Ground 5 Professional Misconduct) and (ii) Wilful contravention of s61 of the Legal Profession Act (Ground 6 Professional Misconduct) 53 The solicitor acted for Mr Ajai Punja in a family law dispute in 1992. Through a Melbourne based, solicitor Mr Tony Cavoli, the practitioner retained Melbourne barrister Mr Grant Atkinson to appear on Mr Punja's behalf in a hearing determining access to the child of the marriage listed in the Family Court at Melbourne. 54 Mr Atkinson rendered accounts to the practitioner in June and July 1992 for a total amount of $5370. This was for appearances on 5 and 6 May 1992, and for an appearance on 27 July 1992. The matter went over part heard from the May date to the July date. Mr Atkinson gave evidence and produced his fee book to verify the work done by him. The practitioner disputes that the 27 July date was a "hearing date", but was merely a date to finalise the orders. At the end of the hearing in May Mr Punja was required by the Court to put up a bond of $50000 to the Court in order to take the child to Fiji. Mr Atkinson could not remember specifically what occurred on the 27 July, he had the impression that Mr Punja was present at Court on that occasion. The Family Court file was tendered in these proceedings as Ex U and it establishes that Mr Punja and his father were both in Court and gave evidence on that day. 55 The weight of evidence in the Law Society's case suggests that the practitioner sent the client a bill dated 31 July 1992 in the sum of $12,795.56, of which $4,500 represented fees payable to counsel. The account in question was mentioned in a report compiled in June of 1993 by Trust Account Inspector, Mr R Howarth subsequent to his inspection of Kheras on 4 and 9 June 1993. An invoice dated 31 July 1992 was located, totalling $12,795.56 and including $4,500 for counsel's fees. The invoice was paid and funds deposited into the office account on 11 September 1992. 56 There is a ledger attached to Affidavit of Ian Jones sworn 14 May 1999, noting the sum of $12,795.56 was received by Khera's the Law Firm on 11 September 1992. 57 The practitioner himself has acknowledged this amount was received, although his versions of events in response to this complaint have not been consistent and are frequently evasive. 58 Mr Howarth notes in his report that the practitioner told him that Atkinson changed his rate from $900 to $1500 per day and that was why the account was not paid. 59 In a statutory declaration dated 9 August 1994 (Collins affidavit) filed by the Practice in proceedings to set aside a judgement obtained by Mr Atkinson, the practitioner declares that upon receiving the account from Mr Atkinson he rang him to express surprise at the amount of the account, and offered to pay $2,700.00 in full satisfaction of the work done. This offer was rejected. Mr Atkinson's evidence was, in response to questions by the practitioner: "…a vague recollection of some discussion about the account or accounts, in fact, and the fact that they remained unpaid and I have a vague recollection that no satisfactory or significant proposal was made by you to pay them."(T/S 28/3/03 p26) "you might have complained about it towards the end of 1992. I would have thought by that time or at not long thereafter I was complaining to you that I had not been paid" (T/S 28.3.03 p28) 60 In a letter of 4 October 1995 to the Law Society (Collins Affidavit page 190) the practitioner says. "ii. It is substantially correct that the client paid some money towards this invoice. It is not correct that the client paid me $12, 795.56. The client paid me substantially less than the billed amount. It is substantially correct that I banked the money into my general account." 61 Then in a letter of 17 November 1995 to the Law Society the practitioner says (Collins Affidavit page 202):- (c) Memorandum of accounts dated 31 July and 2 October 1992 numbered 411 and 433 respectively ,...and a receipt of Kheras- The Law Firm dated 21 October 1992 towards account number 433. I make the following observations/comments:- The amount billed to my client on 31 July 1992 was $15,400.56 and not $12,795.00 as alleged by you. (ii) Likewise Counsel's fees and other disbursements are as per the enclosed account and not as alleged by you. (iv) It may be that I received $12,795.56 on or about 11 September 1992. Even though this amount is $2,605.00 short of what I billed. (v) Between 31 July 1992 and 2 October 1992 when I raised another account in the sum of $5,641.05 I carried out a great deal of additional work. In deed (sic) between 31 July and 11 September 1992 (the date on which I received the payment for account number 411) I carried out a great deal of work...... (ix) To properly investigate this matter it is important to determine the purpose for which I received the amount in question of $12,795.56. This I note has not been done. Did this amount also relate to some additional work I carried out between 31 July and 11 September 1992 or some other disbursement I may have incurred, or to a previous account. 62 The practitioner now accepts that the amount received was $12,795.56 but this was substantially less than what he had originally billed. When cross examined on Mr Howarth's report the practitioner explained that the invoice was sent to Mr Punja:- "when I received or my office received the cheque from Mr Punja, he had changed some of the figures. We often made deals. He had change some of the figures and the figures that appear here and the ones that you are questioning me on on page 182 would be the invoice with changed figures when we received payment" (T/S 27.6.03 p 57). 63 In support of this contention is an account to Mr Punja at page 207 Collins affidavit dated 31 July 1992, including $5370 counsel's fees. The practitioner at the hearing said that the figure of $4500 was the figure after it had been changed by Mr Punja, and that may explain why Mr Howarth reported as he did. 64 The totality of the evidence strongly suggests and we accept that the practitioner received payment in the sum of $4,500.00 from Mr Punja for payment to Mr Atkinson, and that amount certainly was not paid to him. 65 The practitioner in oral evidence before this Tribunal contended that the reason for not paying counsel's fees was that Mr Punja disputed the sum charged. He says that Mr Atkinson agreed through Mr Cavoli that he would charge his daily rate of $900. Mr Cavoli has not given evidence however, in a letter to the practitioner of 8 November 1995 annexed to the affidavit of Collins, Mr Cavoli confirms that the daily court rate was $900 plus conferences and that as the practitioner could brief Mr Atkinson directly, his firm had no need to be involved. Mr Atkinson in cross-examination denied that he would have agreed to a fee of $900, as it was not his practice to charge that amount at that time, and he would not have agreed to set a fee until such time as he had seen the brief. 66 The evidence of Mr Punja would, obviously, have been most enlightening to establish what the practitioner was instructed to do. Mr Punja has not given evidence for either party in these proceedings. The practitioner in oral evidence said that the last time he saw Mr Punja was in New Zealand, and that Mr Punja not resided in Australia since 1999. He stated that as Mr Punja always travels first class and stays in 5 star hotels the practitioner has not had the means to bring him to Australia to give evidence in this matter. In any event the practitioner asserts that Mr Punja no longer has any memory of the events and would be of no value as a witness (T/s 27/6/03 p19). 67 Had the practitioner, in support of his contention for a permanent stay, raised anything to provide evidence of an attempt by him to contact Mr Punja for the purpose of either giving a written explanation, or alternatively, seeking the client's requirements for attendance to personally give evidence before the Tribunal, we might well have been persuaded to take a different course. 68 On the evidence before us we accept that the practitioner having received money on behalf of Counsel and for payment to Counsel, he did not deal with that money in accordance with Section 61 of the Legal Profession Act, 1987, but kept it. 4. Penrith Local Court Proceedings 69 This complaint alleges that the solicitor breached the relevant Rule of the Professional Conduct & Practice Rules which provides: "A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioners client, the practitioner must not act, or continue to act, in a case in which it is known or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court". 70 The practitioner had acted for Ms Lyndi Williams in relation to the sale of a business, "Goodwill Stationers". Subsequently there was dispute with the purchaser about assets and liabilities acquired in the sale. The dispute went to the Local Court at Penrith and there was a hearing between Ms Williams and a third party, Mr Roddick on 4 August 1995. 71 Ms Williams represented herself at the hearing as she could not afford to retain a lawyer. She asked the practitioner to give evidence in the proceedings and he agreed to do so. 72 It is alleged by the Law Society that the solicitor's evidence was material to the issue whether or not there was an agreement pursuant to which the third party Roddick purchased the business. 73 The practitioner stated in evidence that he was the solicitor for Williams during the sale and at the time Mr Roddick was joined to the proceedings. The practitioner gave evidence in the Local Court to say that no written contract was ever entered into over the sale, evidence about a conversation he had with Roddick about Roddick's understanding of the terms of the sale. He also gave evidence about a settlement discussion conference with Mr Roddick in the absence of Mr Roddick's solicitor. Then Ms Williams sought to tender the notes of that discussion but the Magistrate refused. 74 It is apparent from the transcript that the matter was proceeding slowly and awkwardly as both Williams and Roddick were representing themselves. At the conclusion of his evidence to the Local Court the practitioner said: "Your worship if I just may assist the court, if I can address your worship for half a second, and all I was going to say is being an officer of the court I can see the dilemma I'm here, I 'm quite happy to have conduct of my clients matter if your Worship… Bench: Well she's not your client at the moment ,… might in other matters, but not this matter, she is unrepresented as I understand it. Khera: I can see the dilemma and if she instructs me I'm here and I'm happy.. Bench: Well if she instructs you of course, I'll note your appearance but at this stage she's unrepresented as I understand it and you're not instructed in the matter, is that the position ? Khera: That's correct Plaintiff: If you are willing to stay Jess I'd love to have you. Bench: no well look it's not a matter of comment there are certain procedures that have to be followed, please, and you're either in the matter or you're not and you're well aware of that. Khera: Could I have a quick word with my client. Bench: Thank you Khera: I've been instructed to appear" 75 The practitioner thereafter took instructions and conducted the case as an advocate for Ms Williams. 76 The Magistrate in finding for Ms Williams noted in his Judgement that "Mr Khera's evidence doesn't take the matter all that far". 77 The transcript tendered to the Tribunal and irrefutably verifies the actions of the practitioner. The Law Society submits that while this is not the most serious allegation brought against the practitioner it "demonstrates his habitual response to criticism, that is to prevaricate and to create controversy". They argue that the real significance of this matter is that at the time he acted, he was not conscious of the Rule, and simply acted in good faith. Had he conceded this at the outset the Society would have had no grounds to pursue this matter of itself, however by asserting that the evidence was not material he has missed the point and made the matter significantly worse for himself. We agree, it is facile to suggest that the evidence of a Solicitor who represented one of the parties in the very matter in issue, would not be material. However we would not wish to deny the practitioner the right, perhaps at his cost, to test the evidence and make no adverse finding. 5. Misleading Law Society as to Membership (Professional Misconduct Ground 4). 78 This complaint concerns the date of a letter sent to the Law Society alerting the Society to the change of practice arrangements upon the dissolution of the practitioner's partnership with Mr Jones. The Law Society has conceded to the Tribunal that this was an inadvertent error by the practitioner. 6. Unsatisfactory Professional Conduct of failing to pay another practitioner for work performed. 79 Between 18 February 1991 and 30 November 1992, the practitioner employed another solicitor, Mr Attilio Danieletto. In a letter dated 12 November 1991, Mr Danieletto, pursuant to his actual or his apparent authority, requested another solicitor, Ms Roslyn Andrews, to perform certain work on behalf of the practice. 80 Ms Andrews performed the work requested of her and, by a bill rendered in April 1992, sought payment of her fees of $500, that amount being a fair charge for the work performed 81 The practitioner has neglected to pay the amount due to Ms Andrews. 82 In isolation, such a failure would be deserving of a reprimand, however, in view of the action, which we propose to take against the practitioner, that seems a little pointless. But we did indicate that this matter should not be pressed, and we make no adverse finding. Conclusion 83 The practitioner at various times appeared quite ill, and we have medical evidence in substantiation of a major respiratory ailment. Under these conditions, we are satisfied that the practitioner, having represented himself, must be given some leeway in relation to the forensic aspects of the matter, and we have not always accepted the Law Society contentions proposed to follow from the practitioner's failure to cross examine either Mrs Narayan, Mr Manian, or Mrs Jones. Further, it would be fanciful to suggest that the practitioner's conduct of his defence was not affected by the passage of time, and the apparent extreme disarray of his instruction files resulting from that. The acrimonious dissolution of two separate partnership arrangements, in each of which he appears not to have been the party left with custody of the files also cannot have been of assistance. 84 Notwithstanding these considerations, the facts of the matters, which we have accepted as proven to the relevant high standard of proof, raise serious questions about the practitioner's honesty and competence. 85 Questions of competence might well have been addressed differently, the fact remains, that we have not accepted that practitioner's explanation in relation to three major matters, being (i) the reason for the Narayan third party personal injury settlement, (ii) the reason for the failure to obtain the Deed of Release, and (iii) the failure to pay the Melbourne Barrister, These are of sufficient seriousness to satisfy us that the practitioner's character is so flawed that he should not practice. We are not unsympathetic to the practitioner's complaint that the matters raised against him are all based on events which occurred more than 10 years ago and that is why, in some of the matters, we have not made adverse findings. However, the fact remains that, in relation to the 3 individual matters, when questioned about them by his professional body, the Solicitor lied. We have a duty to protect the public, and we are satisfied that if a Solicitor cannot be relied upon to tell the truth when his professional actions are questioned by his professional body, then he is not fit to be on the rolls. 86 The practitioner appeared to be convinced that the Law Society officers had conspired to persecute him, and in this process failed to explore on his behalf every possible line of defence. We have seriously considered these submissions and reject them. 87 In relation to the question of costs, we note that once the general outline of the matters brought against the practitioner had become clear, we suggested to the Law Society that it was inappropriate that certain of the matters be pressed. In view of our finding we are satisfied that the Society should have elected then and there not to proceed with those matters. The remedy, in this regard, obviously is in the costs order – the practitioner is to pay one half only of the Society's costs. I 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.