CITATION: Law Society of New South Wales -v- Konstantinidis [1999] NSWADT 109 DIVISION: Legal Services APPLICANT: Law Society of New South Wales RESPONDENT: Simon Konstantinidis FILE NUMBER: 9733 HEARING DATES: 09/13/1999 SUBMISSIONS CLOSED: 09/13/1999 DATE OF DECISION: 18 November 1999 J Catanzariti Presiding Judicial Member BEFORE: J Pheils - Judicial Member L Bubniuk - Member PRIMARY LEGISLATION: Legal Profession Act, 1987 APPLICATION: Prescribed statutory/professional rules breach; Professional misconduct - solicitor - MATTER FOR DECISION: Principal matter Applicant: P Boyd, solicitor for applicant REPRESENTATION: Respondent: D Brezniak of counsel instructed by T A Williams solicitor for respondent ORDERS: 1. The application is dismissed. 2. Question of costs reserved. 1 The Council of the Law Society ("the Council") by an Information filed on 20 August 1997, made five complaints of professional misconduct against Simon Konstantinidis ("the Legal Practitioner"). 2 The Council alleges that the Legal Practitioner failed to provide and verify information as required by the Council pursuant to s.152(1) of the Legal Profession Act 1987 (NSW) ("the Act"). SECTION 152 3 Section 152 of the Legal Profession Act 1987 (NSW) ("the Act") was amended by the Legal Profession Amendment Act 1996 (Act No 95 NSW). The amendments came into operation on 1 April 1997. Section 152 now provides: Powers of Council or Commissioner when investigating a complaint (1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner or interstate legal practitioner, require the legal practitioner or interstate legal practitioner to do any one or more of the following: (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration, (b) to produce, at a time and place specified in the notice, any document (or a copy of the document) specified in the notice, (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. (1A) ... (2) ... (3) A requirement under this section is to be notified in writing to the legal practitioner or interstate legal practitioner and is to specify a reasonable time for compliance. (4) A legal practitioner or interstate legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. Prior to 1 April 1997 s.152 had provided: Powers of Council or the Commissioner when investigating complaint (1) For the purpose of investigating a complaint, a Council or the Commissioner may require the legal practitioner against whom the complaint is made to provide information or to produce documents, and to verify any such information by statutory declaration. (2) ... (3) A requirement under this section is to be notified in writing to the legal practitioner and is to specify a reasonable time for compliance. (4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. FACTS 4 The Council alleges that the Legal Practitioner failed to provide information in relation to five complaints, as required by the Council pursuant to s.152(1) of the Act. (1) Complaint Relating to Mr and Mrs Agnew (Agnew) 5 A letter dated 11 July 1995 was forwarded to the Legal Practitioner by the Council requesting a response, within 14 days, to the complaints in relation to the Agnew matter. The Legal Practitioner did not respond to this letter. Subsequently the Professional Conduct Committee ("the Committee") resolved that the Legal Practitioner must respond to the complaint made by Mr Agnew pursuant to s.152(1) of the Act. The Council, then, by a letter dated 30 January 1996 notified the Legal Practitioner of the Committee's resolution and requested the Legal Practitioner to provide a response to the complaint, by way of Statutory Declaration within 14 days. No response was received from the Legal Practitioner. 6 The Committee resolved, on 5 June 1997, that pursuant to s.155(2) of the Act the Legal Practitioner be referred to the Tribunal for failing to comply with a Council requirement under s.152(1) of the Act. The Legal Practitioner was notified of this resolution by a letter dated 10 June 1997. (2) Complaint Relating to Litsa Morris 7 The Council forwarded a letter dated 13 November 1995 to the Legal Practitioner requesting a response to the complaints in relation to the Litsa Morris matter. Further letters, requesting a response to the complaints, were sent to the Practitioner on 7 December 1995 and 4 January 1996. No response was received to any of these letters. Subsequently the Committee resolved that the Practitioner be made to respond to the complaints pursuant to s.152(1) of the Act. The practitioner was notified of this resolution by a letter dated 31 January 1996. No response was received to that letter. The Council resolved that pursuant to s.155(2) of the Act the Practitioner be referred to this Tribunal for failing to comply with a Council requirement under s.152(1) of the Act. (3) Complaint Relating to Simon Konstantopolous on Behalf of Helena Hair Care Products 8 A letter dated 22 January 1996 was forwarded to the Legal Practitioner by the Council requesting a response to the complaints made by Mr Konstantopolous. No response was made to this letter by the Legal Practitioner. The Committee subsequently resolved that pursuant to s.152(1) of the Act the Legal Practitioner must provide the information required by the Council. The Legal Practitioner was notified of that resolution by a letter dated 10 June 1997. The Legal Practitioner did not respond to this letter. The Council resolved that pursuant to s.155(2) of the Act the Practitioner be referred to this Tribunal for failing to comply with a Council requirement under s.152(1) of the Act. (4) Complaint By Mr Spiliopoulos 9 A letter dated 21 November 1996, was forwarded by the Council to the Legal Practitioner requesting a response to the complaints made by Mr Spiliopoulos. A further letter dated 6 December 1996 was forwarded to the Legal Practitioner. No response was received to either letters. Subsequently the Committee resolved that pursuant to s.152(1) of the Act the Legal Practitioner must provide the information required by the Council. The Legal Practitioner was notified of that resolution by a letter dated 10 June 1997. (5) Complaint By Mrs Yannatos 10 A letter dated 10 December 1996 was forwarded to the Legal Practitioner by the Council requesting a response to the complaints made by Mrs Yannatos. On 5 June 1997 the Committee resolved that pursuant to s.152(1) of the Act the Legal Practitioner must provide the information required by the Council. The Legal Practitioner was notified of that resolution by a letter dated 10 June 1997. THE COUNCIL'S COMPLAINTS 11 The Council alleges that, in relation to the five complaints which were being investigated, the Legal Practitioner failed to provide and verify information as required by the Council pursuant to s.152(1) of the Legal Profession Act 1987 (NSW) ("the Act"). 12 The Council requests the Tribunal make the following orders: (a) reprimand and fine. (b) An order that the Legal Practitioner pay the costs of the Law Society of and incidental to these proceedings. LEGAL PRACTITIONERS REPLY 13 The Legal Practitioner submits that he has no case to answer. Mr Brezniak, counsel for the Legal Practitioner, submitted that the letters, which purported to notify the Legal Practitioner that he had to provide information, as required by the Council pursuant to s.152(1) of the Act, did not in fact comply with the requirements stipulated under that provision. In particular it is claimed that those letters did not constitute a notice in writing requiring the Practitioner to do any one or more of the things set out in paragraphs (a), (b) or (c) of Section 152(1) of the Act. 14 Central to Mr Brezniak's submission is the view that letters or notices purporting to require a Legal Practitioner to provide information under s.152(1) of the Act must strictly comply with that provision by identifying the information which is being sought by the Council. Mr Brezniak asserted that the letters in question in the present case had not complied with s.152(1), in that they did not clearly identify the information which was being sought by the Council, and that in such circumstances the Legal Practitioner had no case to answer. Accordingly it was submitted that the Legal Practitioner was not guilty of professional misconduct. 15 The Legal Practitioner further submits that for all relevant purposes he had provided a response to the complaints by co-operating and assisting the investigator who had been appointed pursuant to s.55 of the Act. 16 In the alternative that the communications from the council did comply with s.152(1) the Legal Practitioner submits that the failure to comply with the requirement to provide information was not without reasonable excuse. In particular that: (a) at all relevant times the solicitor was under great stress and his capacity to respond to the Council's requests was greatly impaired; (b) the practitioner was entitled to believe, and did believe that the investigation of his practice, and of his trust account by Trust Account Inspector, Mr Fred House, subsumed the investigation by the Professional Standards Division of the Law Society of New South Wales. CONCLUSIONS OF THE TRIBUNAL 17 In the present case the claim of professional misconduct against the Legal Practitioner arises from his failure to respond, as required by s.152(1) of the Act, to the letters forwarded to him by the Council. The Standard of Proof 18 The nature of the complaints which have been made before this Tribunal, namely professional misconduct, are serious. It has been stated that the degree of satisfaction required to meet the civil standard of proof may vary according to the gravity of the facts to be proved. So much was decided in Briginshaw v Briginshaw (1938) 60 CLR 336. In that case Justice Dixon, as he then was, stated at 361: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences". 19 In Briginshaw the issues related to the serious allegation of adultery. Justice Dixon, as he then was, stated: "The importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact." 20 The Briginshaw standard has been applied in cases involving professional misconduct of legal practitioners: Adamson v Queensland Law Society Inc [1990] 1 Qd. R. 498; Peter David Kerin v. Legal Practitioners Complaints Committee (1996) 67 SASR 149. In Adamson v Queensland Law Society Inc [1990] 1 Qd. R. 498, Justice Thomas stated: "The power of a disciplinary tribunal to order a practitioner to pay a pecuniary penalty to the professional body (as s.41 of the Medical Act does) may be regarded differently from the recording of a conviction and the imposition of a fine by a court, as the former proceedings are still essentially disciplinary in nature and are a form of self-regulation by a profession. On this basis the Briginshaw standard may satisfactorily accommodate all proceedings before professional disciplinary tribunals...Specifically in the case of the legal profession the Briginshaw standard is that which should be applied by the Statutory Committee, the Solicitors' Disciplinary Tribunal and the Courts". 21 In the present case the Council alleges that the Legal Practitioner has engaged in professional misconduct by failing to provide and verify information as required by the Council pursuant to s.152(1) of the Act. This is a serious allegation which requires this tribunal to exercise extreme caution and scrutiny (to use Justice Dixon's words from Briginshaw) when assessing all the relevant facts. Compliance With Section 152(1) 22 In the present case, it appears that the Legal Practitioner had failed to provide the information as required by the Council pursuant to s.152(1) of the Act. However it was put before this Tribunal, by counsel for the Legal Practitioner, that the letters notifying the Legal Practitioner to provide information to the Council pursuant to s.152(1) of the Act, had failed to satisfy the requirements stipulated under s.152(1). In particular it was claimed that those letters failed to identify the information being sought by the Council, and as such the Legal Practitioner could not be guilty of professional misconduct. 23 Section 152(1) states: "For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner or interstate legal practitioner, require the legal practitioner or interstate legal practitioner to do any one or more of the following: (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration". 24 Section 152(4) further provides that: "A legal practitioner or interstate legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct". 25 Section 152(1) prior to 1 April 1997 had stated: "For the purpose of investigating a complaint, a Council or the Commissioner may require the legal practitioner against whom the complaint is made to provide information or to produce documents, and to verify any such information by statutory declaration." 26 Despite the amendments which have been made to s.152(1), the purpose of that provision has remained unchanged. Section 152(1) enables the Council of the Law Society to require a Legal Practitioner to provide information for the purpose of investigating a complaint. 27 The provision however does not expressly stipulate requirements as to the form of the notice or letter which is made pursuant to s.152(1) of the Act. In particular there is no express requirement that the information which is being sought by the Council must be specifically identified in that notice or letter. It was submitted by Mr Brezniak that s.152(1) could not operate effectively unless the Council specifically identified the information which is being sought: "Section 152 has a role in the relationship between the Law Society and the legal practitioner and the need for clearness, the need for clarity, the need for proper formal adherence to the requirements which section 152 may be read as requiring...the Law Society of New South Wales in its handling of complaints regarding solicitors and, in those circumstances, our submission is that it falls to the Society to have its notices and formal requirements in a sufficiently clear and particularised way to be amenable to valuable response, valuable information from the Solicitor." 28 There is much credibility to this proposition. If s.152(1) of the Act is to operate effectively, then the Council must identify the information which they require. How is the Legal Practitioner to know what it is that the Council requires? Any other construction would lead to inefficacious situations where the Legal Practitioner does not know what information is required or provides the incorrect information. 29 Counsel also directed the Tribunal to the recent decision in Gridiger v Council of the Law Society of NSW [1999] NSWSC 904 (8 September 1999), where the Council of the Law Society had similarly required the plaintiff to provide information, pursuant to s.152(1) of the Act. The plaintiff in that case claimed that the information and documents which had been required by the Council constituted a fishing expedition. Harrison MR disagreed, finding that: "The documents sought are specifically identified and are relevant to the issues of the nature of the work for which Mr Cardakaris was liable to pay whether the amount charged was excessive. They are relevant to the issues in the complaint. It is my view the defendants are not embarking on a fishing expedition." 30 Although the decision related to the question of 'a fishing expedition', it nevertheless stresses the need to 'specifically identify' the information which is being sought under s.152(1). It is clear that Harrison MR placed some weight on the fact that, in that case, the documents being sought by the Council were 'specifically identified'. 31 It is the opinion of this Tribunal that for s.152(1) of the Act to operate effectively the Council, when requiring a practitioner to provide information, must specifically identify that information which is being sought. ORDERS 32 The findings of this tribunal having been influenced by the principles established by Briginshaw we believe that the charge of professional misconduct against any Practitioner is a serious allegation which ought to be proved by facts which are clear and can survive careful scrutiny. For example Mr Brezniak argued: "those of us who practice in the criminal jurisdictions are familiar with the requirement that an information, a charge or an allegation be, in its formality, strictly correct. If there is an irregularity, or if there is something about the information or the allegation which is at its heart defective, that kills, that brings to an end these proceedings. That has always been the way, because the allegation is at the heart of the process itself. The submission I made concerning the form of the notice, and then following the form of the notice what it sought to do, is that it hasn't brought these proceedings precisely, because its disobedience to that notice or those notices which constitutes the misbehaviour, the misconduct alleged against this Practitioner, and we say that for that reason you don't look at the core of the allegation against him". 33 We have had the fortune of examining Exhibit 3, which is a recent notice forwarded to the Legal Practitioner by the Council, requiring the Practitioner to provide information pursuant to s.152(1) of the Act which is Exhibit 3. That notice is set out in the following manner: "...Council of the Law Society of New South Wales: RESOLVED that pursuant to Section 152 of the Legal Profession Act, 1987, the legal Practitioner is required: (a) to provide, verified by statutory declaration, the information set out in Schedule 1... SCHEDULE 1 A. The Law Society Complaint concerning the matter of Yannatos Allegation 1. The Solicitor failed to account for the amount of $2,0160... Questions 1. Who had day to day Conduct of the matter of Yannatos...". 34 This notice conveys a format which the Tribunal finds appropriate for the purposes of s.152(1) of the Act. The notice clearly identifies the specific information which is being sought by the Council. 35 In light of the standard established by Briginshaw and the clarity of the notice which has been submitted in Exhibit 3, we are of the opinion that in the present case each of the five letters purporting to require the Legal Practitioner to provide information pursuant to s.152(1) fails to satisfy the conditions required under s.152(1) of the Act. Accordingly we find that it would be unjust for the Legal Practitioner to be found guilty of professional misconduct and conclude that he does not have a case to answer. 36 The Tribunal now turns to an examination of each of the letters in question. (1) Complaint Regarding Agnew 37 The letter dated 30 January 1996 states: "Dear Mr Konstantinidis...on 25 January 1996 the Professional Conduct Committee of the Society considered a report and found ordered (sic) pursuant to Section 152(1) of the Legal Profession Act, 1987 that you must provide a response to the Complaint within 14 days of the date of this letter notifying you of the resolution. The response must be way of Statutory Declaration. If you are unable to provide a response to the Complaint you must supply a Statutory Declaration providing a reasonable excuse". 38 The Legal Practitioner did not respond to this letter. It was submitted by Mr Brezniak that: "there is such a lack of specificity in this letter that you might be forgiven for not comprehending its place in the Act, but, more important, my submission is that this is not a request for information, it is a request for a response. It does not identify what sort of information is required". 39 We must respectfully agree with Mr Brezniak's submissions. The sentence stating: "you must provide a response to this Complaint", does not outline the Complaint, nor does it specify the exact nature of the information which is required for the purposes of s.152(1) of the Act. Applying the Briginshaw standard we find that it would be unjust for this Tribunal to find the Legal Practitioner liable for professional misconduct, for failing to comply with a letter which sets out vague and non-specific requirements. 40 Accordingly we find that the Legal Practitioner has no case to answer. (2) Complaint Regarding Litsa Morris 41 The letter from the Council to the Legal Practitioner dated 31 January 1996 states: "I refer to my letters of 13 November 1995, 7 December 1995 and 4 January 1996. ...the Committee passed the following resolution: RESOLVED that the solicitor be required to respond to the Society's letter of 13 November 1995 pursuant to section 152(1) of the Legal Profession Act 1987 within fourteen (14) days of the date of the letter notifying the solicitor of this resolution." 42 The Tribunal finds that this letter fails to adequately specify the information which is being sought by the Council for the purposes of s.152(1) of the Act. The statement "the solicitor be required to respond to the Society's letter of 13 November 1995 pursuant to section 152(1) of the Legal Profession Act" does not specify the nature of the Complaint at question, nor does it specify the nature of the information which is required by the Council. 43 We find that the Legal Practitioner has no case to answer. (3) Complaint Regarding Mr Konstantopolous 44 The letter from the Council to the Legal Practitioner dated 28 April 1997 states: "The investigation of this Complaint was the subject of the Professional Conduct Committee. That Committee resolved that pursuant to s.152(1) of the Legal Profession Act, the Solicitor be required to provide the information specified hereunder within 14 days. The, solicitor if unable to comply with the resolution, must supply a Statutory Declaration within the specified time detailing any reasonable excuse for failure to comply. Required Information A response to the Society's letter dated 22 January 1996." 45 Though this letter identifies the information which is being sought by requiring the Legal Practitioner to provide a response to the letter dated 22 January 1996, that request, in our opinion, is too broad and vague to be characterised as a specific request for information for the purposes of s.151(1) of the Act. The terms of the request do not provide the Legal Practitioner with any guide as to what specific response is required in relation to the letter dated 22 January 1996. 46 In respect of the charge of professional misconduct we find that the Legal Practitioner has no case to answer. (4) Complaint Regarding Mr Spiliopoulos 47 The letter from the Council to the Legal Practitioner dated 10 June 1997 states: "I advise that this matter was considered by the Professional Conduct Committee on 5 June 1997 at which time the Committee resolved as follows: That pursuant to Section 152(1) of the Legal Profession Act the solicitor be required to provide the information specified hereunder within 14 days. If the solicitor is unable to comply with this resolution he must supply a statutory declaration within the specific time detailing any reasonable excuse for failure to comply. Required information is a response to the Complaint as forwarded to the solicitor under cover of letter dated 21 November 1996". 48 Though this letter identifies the information which is being sought by requiring the Legal Practitioner to provide a response to the letter dated 21 November 1996, that request, in our opinion, is too broad and vague to be characterised as a specific request for information for the purposes of s.152(1) of the Act. The terms of the request do not provide the Legal Practitioner with any guide as to what specific response is required in relation to the letter dated 21 November 1996. 49 In respect of the charge of professional misconduct we find that the Legal Practitioner has no case to answer. (5) Complaint Regarding Mrs Yannatos 50 The letter from the Council to the Legal Practitioner dated 10 June 1997 states: "I advise that this matter was considered by the PROFESSIONAL Conduct COMMITTEE on 5 June 1997 at which time the Committee resolved as follows: That pursuant to Section 152(1) of the Legal Profession Act the solicitor be required to provide the information specified hereunder within 14 days. If the solicitor is unable to comply with this resolution it must supply statutory declaration within the specific time detailing any reasonable excuse for failure to comply. The required information is a response to the Complaint as forwarded to the solicitor under cover of letter dated 10 December 1996". 51 Though this letter identifies the information which is being sought by requiring the Legal Practitioner to provide a response to the letter dated 10 December 1996, that request, in our opinion, is too broad and vague to be characterised as a specific request for information for the purposes of s.152(1) of the Act. The terms of the request do not provide the Legal Practitioner with any guide as to what specific response is required in relation to the letter dated 10 December 1996. 52 In respect of the charge of professional misconduct we find that the Legal Practitioner has no case to answer. Last Updated: 11/23/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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