The Legal Services Tribunal of New South Wales CITATION : Graham Leonard Berry [1995] NSWLST 8 PARTIES : Graham Leonard Berry FILE NUMBER(S) : of 1994 CORAM: Mr A. Martin (Chairman) - Ms S. Hale - Mr G. Warwick-Smith CATCHWORDS: Competence and diligence - Professional Misconduct - mislead client - Professional Misconduct - fail to keep client adequately advised :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Basser v Medical Board of Victoria (1981) R 953 at 968 DATES OF HEARING: Friday, 9 June 1995 DATE OF JUDGMENT: 09/21/1995 LEGAL REPRESENTATIVES: Mr D. Hipsley appeared for the Law Society of New South Wales Mr J.W. Conomos, instructed by James Moustacas & Co., appeared for the Solicitor. JUDGMENT: The Solicitor was alleged to have misled counsel and his client at a conference at which he stated that he had filed an Amended Statement of Claim. In fact he had not done so. The Solicitor denied that he had used the words alleged, but admitted the offence. The Tribunal found that the words the Solicitor says he used were also misleading, and fined the Solicitor $7,000.00 The complaint This Complaint was made to the Legal Services Tribunal pursuant to a resolution of the Law Society of New South Wales ("the Law Society") on 17 March 1994 that Graham Leonard Berry ("the Solicitor") may be guilty of professional misconduct. The Information was filed in this tribunal on 11 November, 1994 and was dealt with under the provisions of the new Part 10 of the Legal Profession Act, 1987. Particulars of the Complaint are: (a) The Solicitor delayed in pursuing his client's instructions to proceed with litigation at Common Law for personal injury (b) The Solicitor deliberately misled his client and the Counsel instructed in the matter to believe that he had filed an amended Statement of Claim in the matter (c) The Solicitor failed to attend callovers of the matter on two occasions The facts In June, 1988 the Solicitor who was then and still is, a sole practitioner, was instructed by a Mr Christopher Michael Ward ("Mr Ward") to take over the conduct of a common law action for negligence against Mr Ward's former employer arising out of an accident involving the use of a motor vehicle which occurred on 23 October, 1985. On 8 November, 1989 Mr Ward's Application for Determination was listed for hearing in the Workers' Compensation Court at Newcastle. It appears discussions took place in relation to joining the Government Insurance Office ("the GIO") in the common law proceedings and a decision was made to do so. On the 28 February, 1990 the solicitors for the Defendant, Sparke Helmore & Withycombe ("SHW") wrote to the Solicitor regarding the proposed amendment of the Statement of Claim and requesting the return of the Cross-Claim with the Solicitor's consent endorsed thereon. On 18 April 1990 the Solicitor wrote to SHW indicating that the matter would have his attention upon return from his holidays. On 29 May 1990 SHW wrote to the Solicitor requesting the return of the Cross Claim. On 26 June 1990 Mr Ward's matter was placed in the Jury Callover list and the matter was struck out due to the Solicitor's failure to appear. On 11 July, 1990 the Solicitor wrote to SHW requesting that firm to inform him of the date of the callover of MrWard's matter and indicating that the Cross Claim referred to above would have the Solicitor's "early attention". On 11 July 1990 SHW wrote to the Solicitor informing him that the matter had been struck out due to his non-appearance and requested return of Cross Claim. On 8 October, 1990 the Solicitor wrote to SHW enclosing a copy of a Notice of Motion and Affidavit in Support to restore the matter to the list. Between 9 October, 1990 and 7 November, 1990 further correspondence passed between the Solicitor and SHW. On 7 November, 1990 by way of Notice of Motion the matter was restored to the Supreme Court list. On 14 November, 1990 SHW wrote to the Solicitor acknowledging that the matter had been restored to the list and requesting the return of the Cross Claim. On 4 December, 1990 Mr Ward's matter was again placed in the Supreme Court Callover list and was again struck out due to the Solicitor's failure to appear. On 5 April, 1991 Mr Ward conferred with his Counsel, Mr Clare. On 18 April, 1991 Mr Clare forwarded to the Solicitor an Advice which included the Amended Statement of Claim joining the GIO as a Second Defendant. On 23 May 1991, the Solicitor conferred with Mr Clare, Mr Ward and his wife in Mr Clare's chambers. Mr Clare stated in his Statutory Declaration dated 16 September, 1994 and filed in evidence before the Tribunal that he asked the Solicitor "Have you filed an Amended Statement of Claim joining the GIO yet?" to which the Solicitor replied "Yes I have". On 29 May, 1991 Mr Clare forwarded further advice regarding the Amended Statement of Claim and other matters. After the conference on 23 May 1991 Mrs Ward phoned the Solicitor on numerous occasions requesting the Solicitor to return her calls but these calls were unanswered by the Solicitor. On 31 July 1991 Mrs Ward wrote to the Solicitor indicating concern about the matter. On 3 September, 1991 Mr Clare wrote to the Solicitor indicating he had received no ~response to his Advices dated 18 April, 1991 and 29 May 1991. On 23 October, 1991 the Statute of Limitation period expired. On 3 December, 1991 Mr Ward instructed Grey & Perkins to take over the carriage of the matter. It is admitted by the Solicitor that as at 3 December, 1991 the Amended Statement of Claim had not been filed. The evidence The Solicitor admitted the complaints in a document filed in the tribunal on the 15 March 1995 and gave oral evidence at the hearing. In relation to the complaint of failing to attend two callovers the Solicitor put forward explanations for his absence. In the first instance he suggested he was relying on the Defendant's Solicitors to notify him. In the second instance in response to a question from Counsel for the Law Society as to what steps he had taken to make sure that he did not miss the second callover date the Solicitor responded (T6) "Well, my recollection is that I spoke to the secretary of the partner who was handling the matter, Sparke Hellmore, whose name I don't remember at the moment, and asked that as a matter of courtesy I be advised when the matter was in the callover so it wouldn't occur again. I know they say she doesn't have any diary note of that occurring, but that is my clear recollection, that I had such a conversation when the first non-callover attendance occurred." In relation to a further question as to whether the Solicitor had taken any other steps to ensure he would know when the callover date took place, the Solicitor said (T14) "Well, no, I assumed that I would receive a notice from the Court, but I have no recollection of having received such a notice". It was pointed out to the Tribunal that the procedure in relation to callovers in the country is different to the procedure in the city; that is, unless there is an agent in the country who receives the circular of the callover of matters for a particular area it is something of a forlorn hope waiting for matters to be notified to Sydney Solicitors because the Sydney country registries do not send notices of callovers to city practitioners. Whilst it is acknowledged that this procedure might have contributed to the non-appearance of the Solicitor at the first callover, the Tribunal believes it would be have prudent for the Solicitor to have taken steps to ensure that the second callover was not missed. In relation to the complaint of misleading his client and Counsel that an amended Statement of Claim had been filed, the evidence of Mr Ward and Mr Clare of Counsel is that in response to a direct question from Mr Clare to the Solicitor "Have you filed an Amended Statement of Claim joining the GIO as yet" the Solicitor is alleged to have replied "Yes, I have". The Solicitor, in his correspondence with the Law Society, takes the point that he did not ever indicate then or at any subsequent stage that the Statement of Claim had been filed. However, he admitted saying words to the effect of "the filing of the Statement of Claim is being attended to" whilst at the conference on the 23 May, 1991. In any event, the Tribunal finds that the words used by the Solicitor were in fact misleading in that they gave the impression that action to file the amended Statement of Claim was either in the process of being taken or would very shortly be taken. Some 7 months later, when the Solicitor's instructions were terminated, the amended Statement of Claim still had not been filed. In relation to the complaint that the Solicitor delayed in pursuing Mr Ward's claim, the Solicitor took over conduct of the matter in June, 1988 which was some three years and four months before the Statute of Limitations period expired. The evidence indicates that on at least six occasions through until 14 November, 1990 SHW requested the Cross Claim be returned to them and that was not done. The Solicitor in oral evidence admitted there were delays which were not explained satisfactorily and when it was put to him by his Counsel that "perhaps you had a blind spot" he responded - "As to whether I had a blind spot, I agree entirely". The Solicitor also conceded to his counsel that he realised that the six-year Statute of Limitations with respect to the GIO was a matter of some moment and that he realised the significance of the expiration of the Statute of Limitations. It is fortunate for the Solicitor that the GIO did not take the statutory point and that Mr Ward's new solicitors were able to file the amended Statement of Claim and pursue the litigation to its conclusion on behalf of Mr Ward, the Solicitor having failed to do so. The prior complaint Evidence was led before the Tribunal that the Solicitor had previously appeared before The Legal Profession Disciplinary Tribunal on 5 March, 1991 in relation to allegations of misleading a client in a conveyancing transaction. The Solicitor was found guilty of professional misconduct in relation to this complaint on the 4 February, 1992 and fined the sum of Four thousand dollars. Submissions In summary, Counsel for the Society submitted that the totality of the conduct complained of amounted to professional misconduct and that the prior matter, being of a like nature, exacerbated the present conduct complained of. Counsel for the Solicitor submitted that the prior conduct went to penalty only and that the non-attendance of the Solicitor at the callovers did not amount to professional misconduct, however, Counsel did concede that the misleading aspect of the complaint could constitute professional misconduct. Solicitor's history The Solicitor was admitted to practise on 8 February, 1960, and approximately three months after admission became a partner of the firm then known as H. Roy Booth and Boorman and remained a partner until October, 1980 when he commenced practising on his own account and has practised continuously since that time as a sole practitioner. He is married with adult children. The Solicitor chose not to present character evidence to the Tribunal and when asked by his Counsel the reason for this said "I've been totally ashamed of my conduct in relation to this matter and I found great difficulty in approaching the persons I had in mind..." The Solicitor also admitted that he had not told his wife about the proceedings. In his Statutory Declaration dated 9 June, 1995 and filed in evidence, the Solicitor stated "I feel deep shame and remorse about my actions which have brought me before the Tribunal in this matter. I do not regularly act in personal injury cases. I accepted instructions to act for Christopher Michael Ward at the instigation of Mr John Kiely, Barrister." In oral evidence before the Tribunal, the Solicitor conceded that Mr Kiely was a close friend of his. The Solicitor further stated in his Statutory Declaration that "such personal injury cases as I am now conducting are being conducted from the outset with the assistance of Counsel whom I believe to be competent and knowledgeable in the field". Evidence was led that the Solicitor's main areas of practice consisted of part crime, part family law, conveyancing and probate. Determination and Orders This is the Solicitor's second appearance before this Tribunal in a career in law which spans some 35 years. The prior complaint touched the conduct of the Solicitor in one transaction only as does the present complaint. Whilst the Tribunal is mindful of the fact that the Solicitor's record was unblemished for some 30 years, the fact that the Solicitor finds himself again before this Tribunal for a similar complaint is of concern and that fact should be reflected in the penalty. The standard of service delivered to Mr Ward fell far short of what he was entitled to receive and the Tribunal finds the Solicitor guilty of unsatisfactory professional conduct as regards the complaints particularised in (a) and (c). In relation to the complaint of misleading the client and Counsel, does the conduct of the Solicitor amount to professional misconduct? The "Allinson Formula" is the generally accepted interpretation of professional misconduct and what is quite clear is that professional misconduct denotes conduct that is serious, grave and weighty. It may involve reckless indifference to possible harmful consequences of the acts of a practitioner or acting with a high degree of negligence amounting to gross incompetence, and in these cases it is necessary to show that right-thinking competent practitioners would regard the acts complained of as reprehensible, disgraceful, shameful or dishonourable, all of which may be inferred from all the circumstances (Basser v Medical Board of Victoria (1981) R 953 at 968). In this case, the Solicitor took over the carriage of the matter some 3 years, 4 months before the Statute of Limitation period expired. He was aware of the necessity to join the GIO in the proceedings from approximately November, 1989. At the very least, he led the client and Counsel to believe that "the filing of the Statement of Claim is being attended to" but in fact did not attend to it. He was at all times aware of the significance of the expiration of the Statute of Limitation yet he failed to protect his client against the consequences. It is fortunate for the Solicitor that the GIO did not take the point, however, that should not impact upon the conduct complained of. In these circumstances the Tribunal finds the Solicitor guilty of professional misconduct as regards the complaint particularised in (b). The Tribunal finds that the conduct of the Solicitor was such, in all the circumstances, that warrants a fine and the Tribunal therefore orders that: 1. The Solicitor pay a fine of Seven thousand dollars ($7,000) within a period of two (2) months from the date of this Order. 2. That the Solicitor be suspended from practice at the expiration of the said period of two (2) months if the said fine has not been paid and that such suspension continue until the said fine has been paid. 3. That the Solicitor pay the costs of the Law Society as agreed or as determined by the Tribunal pursuant to s. 171E of the Legal Profession Reform Act 1993. 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.