New South Wales Bar Association v Thomas (No 2) [2003] NSWADT 105

CITATION: New South Wales Bar Association v Thomas (No 2) [2003] NSWADT 105 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT Timothy Leigh Thomas FILE NUMBER: 012042 HEARING DATES: 24/03/2003 SUBMISSIONS CLOSED: 03/24/2003 DATE OF DECISION: 05/16/2003

BEFORE: Norton S SC - Judicial Member; Staff C - Judicial Member; Hayes E - Member APPLICATION: Compensation - Costs - Penalty MATTER FOR DECISION: Penalty; Compensation and Costs LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: New South Wales Bar Association v Bryson [2003] NSWADT 19 APPLICANT REPRESENTATION: P Boulten, barrister RESPONDENT In person ORDERS: 1 That the barrister be publicly reprimanded pursuant to section 171C(1)(e); 2 The barrister pay to the Director of Public Prosecutions compensation pursuant to section 171D(1)(d) in the sum of $4,000; 3 That the barrister pay a proportion of the Bar Association's costs assessed at $4,000.

1 This matter was heard by the Tribunal on 19 September 2002 and the decision in the principal matter was made on 3 October 2002. The proceedings were then stood over until 24 March 2003 for submissions as to compensation, penalty and costs. 2 As noted in paragraph 7 of the primary decision the applicant indicated at the hearing it would be seeking an order the respondent's name be removed from the roll. The barrister was content to proceed but it was indicated that the applicant would not seek costs past the close of the first hearing day. The following orders were made in the principal matter: (i) With respect to ground 1 there be a finding that the legal practitioner is guilty of unsatisfactory professional conduct. (ii) With respect to ground 2 the information is dismissed. (iii) The matter is adjourned to a date to be fixed for submissions on compensation, penalty and costs. 3 The applicant had by the original informations sought a finding that the barrister was guilty of professional misconduct on two grounds which related to his conduct on 8 and 9 May 2000 respectively. The information so far as it related to the events of 9 May was dismissed and as noted above there was a finding made that the barrister was guilty of unprofessional conduct with respect to the events of 8 May. Additional Evidence 4 The following additional affidavits were tendered at this hearing: (i) Affidavit of Graham Bailey, solicitor sworn 16 January 2001 which became exhibit 4. (ii) Affidavit of Timothy Lee Thomas sworn 27 February 2003 which became exhibit A. (iii) Affidavit of Graham Bailey, solicitor, sworn 14 March 2003 which became exhibit 5. 5 A letter from the solicitors for the applicant to the barrister dated 7 March 2003 became exhibit 6. 6 The affidavits of Mr Bailey and Mr Thomas deal with the question of compensation payable to the Director of Public Prosecutions. It was indicated to the Tribunal that these affidavits were in substitution for any earlier evidence which had been placed before the Tribunal on the question of compensation. It was noted that there was no longer a claim for compensation from the Director of Criminal Law of the Legal Aid Commission. 7 Exhibit 6 is a letter from the solicitors for the applicant to the respondent. It sets out the orders sought by the respondent as follows: (i) A public reprimand, and publication of the decision on the Tribunal's website. (ii) A fine not exceeding $5,000. (iii) That Timothy Thomas pay 65% of the Bar Association's costs of the proceedings, such costs to be agreed or assessed. (iv) In the event that Timothy Thomas makes application for, and is issued with, a practising certificate as a barrister, an order that Timothy Thomas undertake and complete in his first year of practice (in addition to the required 10 continuing professional development points), a further 10 continuing professional development points in risk management courses conducted by the NSW Bar Association. 8 Mr Boulten on behalf of the applicant indicated to the Tribunal that the applicant's practising certificate had been suspended by force of section 38FE of the Legal Practitioners Act as and from 27 November 2001. This fact is also referred to in the affidavit of the barrister. 9 Mr Boulten pointed out that the Bar Council had not been able to make a determination under section 38FC of the Legal Profession Act 1987 within the relevant period. In those circumstances the Commissioner was required to take over the determination of the matter pursuant to section 38FG of the Act. In the present case the Commissioner had similarly been not able to make any decision as to whether or not the barrister was a fit and proper person to hold a practising certificate. As a result the barrister's practising certificate had been suspended and as he had not challenged that suspension it remained in operation. Penalty Barristers History 10 The barrister has practised in the Bar at Newcastle for over 25 years in a variety of jurisdiction but primarily in crime. So far as the Tribunal is aware there have been no complaints concerning the barrister which have been upheld. 11 JSM44 is a copy of the Legal Practitioners Certificate of Admission recording that the barrister was on 3 December 1971 admitted as a barrister of the Supreme Court of New South Wales. The barrister did not tender any character evidence but there is nothing in the documentation presented to the Tribunal which would suggest that the barrister had conducted his practice otherwise than in accordance with the standards expected of a practitioner of his seniority. The Tribunal notes that neither the Bar Council nor the Commissioner determined that the barrister was not a fit and proper person to hold a practising certificate. Consequences of the unsatisfactory professional conduct 12 As noted in the primary decision as a result of the barrister's conduct a criminal trial with a complicated history, was not able to proceed. From the evidence tendered it is clear that the only reason the trial did not proceed was the barrister's conduct. Section 171(1) 13 The relevant mitigating factors are to large extent set out in the primary decision. At this hearing the barrister filed some further evidence of his current medical condition. The barrister was not cross examined on that affidavit and the Tribunal accepts its contents. 14 Given the findings of this Court the applicant could not seek an order that the barrister's name be removed from the role (section 171(1)(a)). No order was sought under sub-section (b) that the barrister's practising certificate be cancelled nor under sub-section (c) that a practising certificate not be issued to a date to be specified. This is no doubt because as outlined above the barrister's practising certificate is suspended. Having considered all the material placed before it the Tribunal would not have made any such order. 15 On behalf of the applicant it was submitted that the conduct of the barrister was such that it required at least a public reprimand. This submission was not seriously challenged by the barrister. 16 The Tribunal is of the opinion that it is appropriate that the respondent be publicly reprimanded. There has been a finding of unprofessional conduct and the barrister concedes that as a result of his conduct a criminal trial could not proceed on the day it was listed for hearing. The barrister's conduct was complained of by both the Director of Public Prosecutions (JSM2) and the Director of Criminal Law of the Legal Aid Commission (JSM2). 17 The Tribunal finds that in all the circumstances a private reprimand would not be appropriate. 18 On behalf of the applicant it was submitted that the barrister should be ordered to pay a fine. It was conceded that his ability to pay that fine should be taken into account along with the amounts ordered by way of compensation and costs. The barrister agreed that a global approach should be taken to penalty and that the amounts ordered by way of compensation and costs should be taken into account in determining any fine. 19 The Tribunal found in the primary decision that the barrister's conduct was unsatisfactory but that the breach was not so substantial as to amount to professional misconduct (paragraph 39). Without repeating the matters set out in the primary decision the Tribunal is mindful of those matters together with the contents of the barrister's affidavit of 27 February 2003. The contents of that affidavit were not challenged and they deposed that his present income is approximately $18,000 per annum. Further the barrister has health problems requiring continual medication for his heart and is an insulin dependant diabetic. He indicated to his Tribunal that at present he has no intention of attempting to resume practice. 20 In all the circumstances the Tribunal does not think it appropriate to impose any monetary penalty upon the barrister. 21 It was urged upon the Tribunal by Counsel for the applicant that an order in the terms of paragraph 4 of exhibit 6 would be appropriate. The power to make such an order was said to be contained in section 171(c)(1)(f). 22 Counsel for the applicant referred the Tribunal to the orders made in the matter of the New South Wales Bar Association v Bryson [2003] NSW ADT 19 where it was said a similar order was made. Order 3 in that matter was framed as follows: "Orders that the barrister undertake and complete a course of further legal education by practising under the supervision of a barrister of at least 7 years standing approved by the Bar Association for a period of 12 months, such supervising barrister being requested to report to the Bar Association as to the barrister's ability to practice at the end of 3 months, 6 months and 12 months. That supervising barrister should be given a copy of these reasons." 23 The Tribunal does not accept that order 4 sought in this case is truly equivalent to the order made in Bryson. The Tribunal asked Counsel for the applicant whether it could be assured that there would be 10 points of lectures in risk management available in the year the respondent sought to be readmitted. No such guarantee was made. It was further indicated to the Tribunal that once the barrister has been suspended for more than 2 years it is possible he will be required to undertake a reading course prior to recommencing practice. 24 The barrister indicated he has at present no intention of applying to have the suspension of his practising certificate lifted. In all the circumstances the Tribunal does not think it appropriate to make any order in terms similar to paragraph 4. Costs 25 On behalf of the applicant it was submitted that although the Council of the NSW Bar Association had been unsuccessful with respect to one information and only partly successful with the other, the matter would have occupied the same amount of time even if confined to the first information. It was further submitted by the applicant that as the conduct had been subject of complaint it was a matter which, in the public interest, should be dealt with in a public forum such as the Tribunal rather than by way of private reprimand. Mr Thomas conceded that there were reasons why the matter had to be bought to the Tribunal rather than being dealt with inhouse. He submitted that because it was in the public interest that the matter be dealt with in a public forum the costs of that forum should not necessarily be borne by the unsuccessful party. 26 Costs are governed by section 171E of the Legal Profession Act 1987. It is made clear in sub-section 1 of that section that costs do not necessarily follow the event. It is provided: "The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, the appropriate Council and the complainant) ..." (3) An order for costs: (a) May be for a specified amount or an unspecified amount; and (b) If for an unspecified amount, may specify the basis on which the amount is to be determined; and (c) May specify the terms on which the costs must be paid. 27 The Tribunal did not receive any submissions that the costs should be paid on terms. Both parties agreed it would be best if the costs were ordered in a specified amount. It was indicated to the Tribunal that the costs were likely to be in the vicinity of $16,765 and by letter dated 24 March 2003 that figure was reduced to $16,447.07. 28 On behalf of the applicant it was submitted that it was very difficult "to unscramble the eggs" and thus to choose a percentage of costs which should be borne by the barrister. 29 The barrister declined an invitation to indicate to the Tribunal what percentage of the costs he believed should be borne by him. 30 The Tribunal is of the opinion that the second information was never likely to succeed once it became clear that the barrister was not briefed to appear on 9 May 2000. 31 The finding of unprofessional conduct rather than professional misconduct was based, at least in part, on the evidence the barrister gave at the hearing before this Tribunal. Although he had provided letters of explanation to the applicant beforehand no sworn affidavit material had been provided. 32 Given the financial circumstances of the barrister, his medical condition both at the time of the offence and at the time of the hearing and the fact that his practising certificate has been suspended for a significant period of time the Tribunal thinks it appropriate that the barrister pay costs in the sum of $4,000 which is approximately 25% of the applicant's costs. Compensation 33 As noted above there is now only one claim for compensation before the Tribunal. Claims for compensation fall to be determined under the provisions of section 171D of the Legal Profession Act. Counsel for the applicant indicated that he did not wish to make submissions on this point and there was no appearance on behalf of the Director of Public Prosecutions. 34 The Tribunal has read the two affidavits of Mr Bailey. It is of some concern to the Tribunal that in the affidavit of 16 January 2003 Mr Bailey deposes that Mr Lerve was briefed at his direction as his expertise was particularly sought after for the trial "in the light of the fact that it was regarded within the office as both sensitive and of reasonable complexity". 35 In the later affidavit Mr Bailey explains that it was necessary to fly Mr Lerve from Wagga to Newcastle because the four Crown Prosecutors based at Newcastle were occupied on other matters. 36 The amounts of compensation claimed by the DPP are set out at page 2 of the affidavit of 16 January 2003. Mr Thomas submitted that the reading and preparation would not be costs "thrown away" as a result of the trial not proceeding on 8 May. A similar submission is made with respect to the costs of airfares and accommodation. It is noted that Mr Lerve appeared in the trial of Idstein which commenced on 9 May. Given that there were no Newcastle based prosecutors available he would have had to travel from Wagga and pay accommodation in any event. The Tribunal allows approximately 1 day of Mr Lerve's fees. 37 A claim for solicitors costs of 21 hours at the rate of $24.50 per hour is made. The Tribunal is minded to allow 8 hours at the above rate. The witness expenses are substantial and amount to $3,511.70. Mr Thomas submitted that it is unusual for any person to have to pay witness expenses when a trial does not proceed. It is clear from the affidavit that the witnesses were never recalled as negotiations were carried out which resulted in the trial not proceeding. The Tribunal has no details of how the various amounts claimed are compiled and therefore whether or not they were reasonably and necessarily incurred. After some consideration the Tribunal is of the opinion that the barrister should pay compensation to the Director of Public Prosecutions in the sum of $4,000. ORDERS 1. That the barrister be publicly reprimanded pursuant to section 171C(1)(e). 2. The barrister pay to the Director of Public Prosecutions compensation pursuant to section 171D(1)(d) in the sum of $4,000. 3. That the barrister pay a proportion of the Bar Association's costs assessed at $4,000.