The Legal Services Tribunal of New South Wales CITATION : John Sebastian Lukas [1992] NSWLST 13 PARTIES : John Sebastian Lukas FILE NUMBER(S) : of CORAM: Mr G Williams (Presiding Member) - Mr D Mahon - Mr A Martin CATCHWORDS: Professional Misconduct - mislead client - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - gross negligence and delay/gross delay/delay :- LEGISLATION CITED: Legal Profession Act 1987 Workers' Compensation Act 1926 CASES CITED: DATES OF HEARING: 21/04/92 - 26/05/92 DATE OF JUDGMENT: 05/26/1992 LEGAL REPRESENTATIVES: Mr B. Murdoch JUDGMENT: The Legal Profession Disciplinary Tribunal in the matter of John Sebastian Lukas Reasons for Determination and Orders Before: Mr G. Williams (Chairman), Mr D. Mahon and Mr A. Martin. Appearances: Mr B. Murdoch appeared on behalf of the Law Society of New South Wales and to assist the Tribunal. Mr J.S. Lukas appeared on his own behalf. Hearing date: 21 April 1992. In this matter the Council of the Law Society of New South Wales ("the Society") complained to the Legal Profession Disciplinary Tribunal against John Sebastian Lukas ("the Solicitor") under Section 135 of the Legal Profession Act 1987 ("the Act"). The complaint was dated 15 October 1991 and the particulars of the complaint were: 1. The Solicitor was guilty of gross neglect and delay. 2. The Solicitor misled his client. 3. The Solicitor misled the Society. 4. The Solicitor failed to respond promptly to correspondence from the Society. Further particulars are more fully set out in the complaint and these further particulars together with the above particulars and the complaint itself are attached to this Determination. [Note: Particulars and complaint are not attached to this publication.] The Society seeks such orders as the Tribunal considers appropriate and costs. The Society's case consisted of: 1. The complaint, Statutory Declaration of Frederick John Smith (manager of the Professional Conduct Department of the Society) and the correspondence and file in the matter of Hilary John Wicks and Coopers Animal Health Australia Limited in respect of the claim for Workers' Compensation (all of which documents were exhibit "A"). 2. The admissions of the Solicitor given at the hearing before the Tribunal of the particulars of the complaint and the material contained in the further particulars filed with the complaint. The Solicitor did not present any evidence to the Tribunal. Mr B. Murdoch appeared for the Society and the Solicitor appeared on his own behalf. Particulars of the complaint: Ground 1 The Solicitor was guilty of gross neglect and delay. Findings on Ground 1 The Solicitor admitted that he received instructions in June 1985 from Hilary John Wicks ("the client") to act on his behalf in respect of a claim for compensation under the Workers' Compensation Act 1926 with respect to an injury the client suffered on 4 March 1985. On 2 December 1986 the client signed an application prepared by the Solicitor for compensation in which application Coopers Animal Health Australia Limited was named as the respondent. On 3 April 1987 the Solicitor caused that application to be filed in the Compensation Court of New South Wales. The Solicitor further admitted that on 20 January 1988 the Registrar of the Compensation Court gave notice to the client care of the firm of the Solicitor of which the Solicitor was the proprietor, that the application would be mentioned before the Registrar on 14 March 1988 to ascertain readiness to proceed in view of action not being taken in the matter for a period of at least six months. On 14 March 1988 the Registrar of the Compensation Court ordered that unless the following matters were attended to within twenty-one days the application would be struck out: i. Filing of an Affidavit of Service upon the respondent and its insurer. ii. Filing of a Request for Listing. It appears from the file which is part of exhibit "A" that the Solicitor did file an Affidavit of Service sworn by him on 11 April 1988 but that there is no evidence that he filed a Request for the listing of the application of the client for compensation. The Solicitor, therefore, and as he so admits did not comply with the order of the Registrar of the Compensation Court. As at 18 April 1991 the Solicitor had not acted to set aside the order of the Registrar of 14 March 1988 or to commence a fresh application for compensation on behalf of his client. The only action the Solicitor took in the matter after filing the Affidavit of Service of 11 April 1988 was to make the statements to his client as to the status of his application for compensation, referred to in the further particulars of Ground 2 of the Complaint. The Tribunal finds on the evidence that this ground was clearly established. Ground 2 The Solicitor misled his client. Finding on Ground 2 The Solicitor has admitted that on ten occasions he made statements to the client concerning the status of his application and that these statements were misleading. The statements are set out in the further particulars to the complaint (annexed to this Determination) [Note: Statements are not attached to this publication.] and in summary these statements were: 1. In June 1986 the Solicitor informed the client that he would have his Workers' Compensation settlement before Christmas of 1986. 2. Prior to August 1988 the Solicitor informed the client that a date for the hearing of his Workers' Compensation application had been fixed for 16 August 1988. 3. That on or about 17 August 1988 the Solicitor informed the client that a date for the hearing of his application was fixed for 25 September 1988. 4. In early 1988 the Solicitor informed the client that the Workers' Compensation Court file relating to his application had gone astray as one half of the file was at Rosebery and the other half was at the Compensation Court in Sydney. 5. On 3 February 1991 the Solicitor informed the client that the Solicitor had interviewed the Registrar of the Compensation Court who had advised the Solicitor that half the Court file was with the Workers' Compensation Court and the other half of the file was elsewhere. 6. On 3 February 1991 the Solicitor informed the client that the Solicitor had made arrangements to interview the Registrar of the Compensation Court on 7 February 1991. 7. On 3 February 1991 the Solicitor informed the client that the Solicitor would remove the conduct of the Workers' Compensation claim of the client from the Solicitor's city agents and that the Solicitor would deal personally with the claim at all future times when the Solicitor knew, or should have known that his city agents had not acted in respect of the matter since March 1988. 8. On 13 February 1991 the Solicitor informed the client the file relating to his compensation claim was being compiled by officers of the Compensation Court as half the file was at the repository at Rosebery in error when the Solicitor knew or should have known that the Court file relating to the claim of the client was at all times intact at the office of the Compensation Court. 9. On 15 February 1991 the Solicitor informed the client that his claim for compensation would be mentioned at the Workers' Compensation Court on 28 February 1991 or 1 March 1991 for the purpose of fixing a date for the hearing when the Solicitor knew, or should have known that at 15 February 1991 the compensation of the client had been struck out and there were no prospects of the claim being mentioned on 28 February 1991 or 1 March 1991. 10. On 1 March 1991 the Solicitor informed the client that the solicitors acting for an Insurance Company involved in the compensation claim had requested the Judge before whom the claim was mentioned to grant an adjournment for seven days to enable those solicitors to obtain instructions concerning a format of a settlement when the Solicitor knew, or should have known that there had been no mention of the claim of the client on 28 February 1991 or 1 March 1991 or at any other time at which solicitors had requested an adjournment. The Tribunal finds on the evidence that this ground was clearly established. Ground 3 The Solicitor misled the Society. Findings on Ground 3 The Solicitor has admitted that he misled the Society by letter dated 29 November 1990 in which letter referring to the compensation claim of the client the Solicitor advised the Society as follows: "At present the writer believes the matter is awaiting a readiness hearing and upon receipt of this date Mr Wicks will be advised (the matter is now being handled by my city agents as the writer suffered injuries in a motor vehicle collision in 1989 and could not attend to his practice on a full-time basis)." At the date of this letter the Solicitor knew or should have known that the compensation claim had been struck out, that there was no prospect of an allocation of date for a readiness hearing with respect to that application and that the Solicitor's city agents had not acted with respect to the compensation claim since 14 March 1988. The Tribunal finds on the evidence that this ground was clearly established. Ground 4 The Solicitor failed to respond promptly to correspondence from the Society. Findings on Ground 4 The Solicitor admitted that on 18 January 1991 the Society forwarded to him a letter requesting that he make the file of the client available for inspection by the Society. The Solicitor also admitted that he did not respond to that letter despite reminders from the Society dated 7 February 1991, 14 February 1991, 18 February 1991 and 25 February 1991. The Tribunal finds on the evidence that this ground was clearly established. The Tribunal has found on the evidence that all the grounds of the complaint against the Solicitor have been clearly established. All the grounds of the complaint are in respect of one matter handled by the Solicitor, namely a claim of the client for workers' compensation. Whilst one or more grounds of the complaint may have constituted unsatisfactory professional conduct as opposed to professional misconduct, all grounds having been established on the evidence, the Tribunal finds professional misconduct on the part of the Solicitor. The Solicitor for the Society in his submissions said that one would not suggest that the Solicitor had demonstrated an absolute unfitness to practise but nevertheless there had been dishonesty on his part in the sense that he had been less than frank with the client. His further submission was that the matter called for the imposition of a substantial fine. The Solicitor in his submissions to the Tribunal did not canvas the question of whether or not the conduct constituted professional misconduct. However he did submit that he had held a belief that he had complied with the order of the Compensation Court when he filed the Affidavit of Service of the Application. He stated he had no knowledge of workers' compensation matters and that this matter was the first and last workers' compensation matter in which he has purported to act. He apologised to the Law Society and stated it was not his intention to mislead the Society. He admitted his neglect of the matter and in some mitigation stated that in 1988 he was in the midst of a conveyancing boom and that as a sole practitioner he was tending to deal with matters occurring on a day-to-day basis. In 1989 he had a motor vehicle accident which lead to him working on a part-time basis and in early 1990 he suffered further injury this time to his left wrist when he is left-handed. He expressed his contrition and frankly admitted his mistakes and expressed his regret for putting the client in the predicament that he found himself. The Solicitor was admitted to practice in December 1977 and after a period of employment as a solicitor from 1978 to 1982 he started his own practice and has been a sole practitioner ever since. Whilst the Solicitor did not present any evidence as to his private or professional character, there is no evidence to suggest that he is other than a person of good personal and professional character. The Solicitor has been in practice for over fourteen years - ten years of which has been as a sole practitioner and the complaint brought against him by the Society relates to one matter only. The Tribunal having considered all the evidence and the submissions made on behalf of the Society and by the Solicitor, whilst regarding the professional misconduct of the Solicitor as being of a serious nature find that his conduct was not of a severity justifying the removing of the name of the Solicitor from the Roll or a period of suspension of the Solicitor from practice. The Tribunal has come to the conclusion in all the circumstances that the imposition of a fine is the appropriate order. The Tribunal therefore orders that: 1. The Solicitor be fined the sum of Eight thousand dollars ($8,000.00). 2. The said sum be paid within two months from the date of this order and that thereafter the Solicitor be suspended from practice until the said fine shall be paid. 3. That the Solicitor pay the costs of the Society, such costs to be assessed on a Solicitor and Client basis as if taxed in the Supreme Court. 4. If agreement cannot be reached between the Solicitor and the Society as to the amount of such costs, either party to have liberty to apply. Dated the 26th day of May 1992. 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.