The Legal Services Tribunal of New South Wales CITATION : Warwick Philip O'Rourke [1996] NSWLST 8 PARTIES : Warwick Philip O'Rourke FILE NUMBER(S) : of 1995 CORAM: Mr D. Castle (President) - Ms S. Hale - Mrs J. Bartos CATCHWORDS: Professional Misconduct - fail to carry out instructions - Professional Misconduct - mislead Court/Tribunal :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: Friday, 12 April 1996. DATE OF JUDGMENT: 04/12/1996 Mr L. Pierotti appeared for the Law Society of New South Wales LEGAL REPRESENTATIVES: Mr G.C. Lindsay sc appeared for the Solicitor JUDGMENT: Allegations of Failure to Carry Out Instruction, Acting Without Instructions and Failure to Communicate in Respect to a Claim for Compensation Against a Municipal Council in the Land and Valuation Court of NSW. The case was settled without instructions in the amount of $1,500.00 on 25 May 1979. The complainant was made aware of this fact when the solicitor responded to the complaint in 1993. Finding of misleading the Court where orders sought without instructions. The Complaint This Complaint was made by the Council of the Law Society of New South Wales ( the Law Society") against Warwick Philip O'Rourke ( the Solicitor") that he may be guilty of professional misconduct. The grounds upon which the complaint is made are as follows: 1. The Solicitor failed to carry out instructions to seek compensation in the Land & Valuation Court of New South Wales for his client, Mr Durakovic, in accordance with the valuation obtained from a Mr Singer in the amount of $9,000.00. 2. The Solicitor settled his client's court case in the amount of $1,500 without instructions and thereby misled the court. 3. The Solicitor failed to advise the client of the outcome of the matter and continued to keep the client in ignorance of the true situation for a period of 15 years. 4. The Solicitor failed to respond to correspondence from the client seeking information as to the outcome of his court case. The Facts In September, 1969 the Drummoyne Council resumed part of certain land owned by Mr Durakovic, his parents and a brother. All landowners except Mr Durakovic are now deceased. Sometime prior to 18 December, 1975 Mr Durakovic instructed the Solicitor who was then a partner in the firm of Hall & Hall. Mr Durakovic thereafter continued to engage the services of Hall & Hall which subsequently merged with the firm of Sly & Russell, which then became Sly & Weigall. The Solicitor is presently a partner with Sly & Weigall, which is now known as Deacons Graham & James. By letter dated 7 July 1976 the Solicitor advised Mr Durakovic that in order to determine whether or not the claim for compensation should be pursued, a valuation report should be obtained. By letter dated 18 January 1977 the Solicitor advised Mr Durakovic that a preliminary investigation had been undertaken by J G Singer & Associates Pty Ltd, a firm of valuers. The valuers indicated there was a possibility that a claim in excess of $1,500 offered by the Council in 1971 might be substantiated with further research. The Solicitor further advised Mr Durakovic that any action to be commenced in the Land & Valuation Court would need to be commenced by 24 March 1977. Mr Durakovic instructed the Solicitor to undertake further investigations into the value of the land resumed by the Council. The valuers were thereafter instructed further by the Solicitor. By letter dated 15 March 1977 the Solicitor forwarded to Mr Durakovic a copy of the valuer's report of 14 March 1977 which contained an opinion that the sum of $9,000 in total would be an appropriate amount to seek by way of compensation, the remaining portion of the subject land having, in the valuer's opinion, been reduced in value by $7,500. Mr Durakovic instructed the Solicitor to proceed with a claim for compensation. By letter dated 27 April, 1977 the Solicitor advised Mr Durakovic that a Summons had been issued against the Drummoyne Council claiming compensation in the sum of $9,000. By letter dated 5 October, 1977 the Solicitor wrote to Mr Durakovic advising that the solicitors for Drummoyne Council were not prepared to negotiate above the amount of $1,500 offered by way of compensation. From 5 October, 1977 until the Solicitor responded to a complaint made to the law Society in 1993, Mr Durakovic heard no more from the Solicitor. Some time prior to 25 May, 1979 the Solicitor signed a Short Minutes of Order which provided a verdict for the Plaintiffs in the sum of $1,500. An Order to that effect was made on 25 May, 1979 with no further order as to costs. Mr Durakovic was not advised that the matter had come before the Court or that orders had been made. No instructions were sought by the Solicitor to finalise the matter on the above terms or at all. In July, 1979 the Solicitor for the Drummoyne Council forwarded payment of the amount of $1,500 plus statutory interest to July, 1979 to the Solicitor. It appears that this process was repeated on several occasions and each time the cheque remained unrepresented. In February, 1982 the Solicitors for the Council returned the sum of $1,500 to the Council and it was deposited in the Council's trust account. On 24 October, 1984 the Land and Valuation Court of NSW issued a certificate of taxation in favour of the Drummoyne Council in the sum of $2,314.72. Mr Durakovic was never made aware of his liability to pay the amount shown on the Certificate of Taxation by the Solicitor. The Solicitor, after the Orders of 25 May, 1979 failed to advise Mr Durakovic of those Orders and, furthermore, failed to respond to Mr Durakovic's correspondence enquiring as to progress of the matter. The Evidence The Solicitor admitted the complaints and gave oral evidence at the hearing. When asked what explanation he could offer the tribunal in relation to his conduct, the Solicitor replied Well, all I can say in answer to that, Mr Chairman, is that I was unable to cope with the consequences of what I had done. I hadn't acted as the client expected me to act in accordance with his instructions, which was to pursue a claim for $9,000, and it simply resulted in me being unable to deal with the matter and it is for simply that reason that there was no communication. I guess I was conscious of the fact that to communicate the matter to the client would result in some action being taken against me" (T21). It was conceded by the Solicitor that the particular file was well within his competence and experience he having handled cases involving preparation of expert evidence, either compensation or development appeals for some time and that there was no explanation why with the number of cases that I have handled over the years, this one didn't get the attention, didn't get experts reports brought in and prepared" (T23). It was also conceded by the Solicitor that he had received several reminders about this particular file between May 1979 up to about 1984 by virtue of the fact that the Council in its attempt to pay compensation kept forwarding cheques to him which cheques were brought to his personal attention as the Solicitor handling the file. In answer to questions about the effect of his signing the Consent Orders without instructions and whether he gave that any thought the Solicitor responded No, as far as I can recall, I did not at the time think about what I was doing as being a deception or misleading the Court. I was conscious, obviously, of the situation vis a vis the client but I didn't, as far as I can recall, think about what I was doing as a misleading of the Court." (T22) The Solicitor did not have a clear recollection of the circumstances that led to his agreeing to the consent orders. His best recollection was that the valuer from whom the valuation had been obtained had ceased to practise giving rise to a need to obtain another valuer to support the claim for compensation and at that time, Drummoyne Council's solicitors were seeking to have the proceedings struck out and that rather than have the proceedings struck out, which he believed was imminent, he agreed to the consent order. The Prior Complaint Evidence was given that the Solicitor had been the subject of a prior complaint in the mid 70s, however, the substance of that complaint differed from the present complaint. On that occasion, the Solicitor received a reprimand. Submissions In summary, the Solicitor for the Society submitted that the totality of the conduct complained of amounted to professional misconduct in that No Solicitor who gave the matter thought would sign consent orders without instructions. No Solicitor acting for a client would for a period of at least fourteen years, and until ultimately faced with the position of doing so by the Society, have failed to advise his client of those orders. No Solicitor, using the words of Allinson's case, of good repute and competency would fail to carry out his instructions in a matter which as I understand the evidence, and I will be corrected if I need to be was not of any great difficulty" (T30). On the question of misleading the court by signing of the Consent Orders, the Solicitor for the Society submitted there must be an implied, if nothing else, misleading of the Court when the practitioner gives it to understand that he is acting on instructions and that isn't the case. If he files Short Minutes of Order, it must be implied that he has his client's consent to do so or his client's instructions" (T31). Counsel for the Solicitor submitted that the Solicitor having frankly admitted the conduct complained of would accept the judgment of the Law Society as to the characterisation of the conduct, namely, professional misconduct. The Law Society sought a private reprimand as the appropriate penalty and the Solicitor submitted himself to that Order. At the outset of the hearing, it was submitted to the Tribunal by Counsel for the Solicitor that if the order sought by the Society was to have efficacy, then the hearing should be conducted in the absence of the public (S.170(2), (4) & (5) Legal Profession Act, 1987). The Solicitor for the Law Society submitted that the appropriate course was for the hearing to be held in open court but in the event of the Tribunal ordering a private reprimand that there be a restriction on publication of the order for a private reprimand but otherwise the determination and finding be published. The Tribunal found this proposition difficult to reconcile with the concept of a private reprimand. In any event, the Tribunal determined that as the matter related to a complaint of professional misconduct it was bound to hear the matter in public unless it was satisfied that it was in the public interest or the interests of justice to do so (S.170(4) Legal Profession Act, 1987) and there were no circumstances in this case which warranted a closed court. Solicitor's History The Solicitor was admitted to practise on 9 February, 1968 and has practised continuously for the past 28 years. He joined the firm of Hall & Hall as an employee in December 1967, became an associate of that firm in July, 1969 and a partner on 1 January, 1972. He remains a partner in that firm which is now known as Deacons Graham & James. His expertise in the area of local government law. The Solicitor presented strong character evidence to the Tribunal by way of 13 Statutory Declarations, the Declarants of which had been made aware of the details of the complaint against the Solicitor. In summary, these declarations were uniformly commendatory of the Solicitor's character despite his conduct in this particular matter. All Declarants considered the Solicitor to be highly skilled and knowledgeable in his particular field and the Tribunal believes that the Solicitor has the respect of the practitioners in whose jurisdiction he almost exclusively practices. Determination and Orders The Tribunal is satisfied that the Solicitor is guilty of professional misconduct in accordance with the test in Allinson's case and the Tribunal so finds. In considering the appropriate order, the Tribunal is mindful of the fact that the Solicitor made full restitution to Mr Durakovic and that he has the support and respect of senior practitioners in the area in which he practices including a judge, barristers (including senior silks), clients and a local government officer. The Solicitor when confronted with the complaint in 1993, frankly admitted his conduct and did so in a responsible way. While there is no doubt that he acted wrongly, he did not do so in terms of obtaining or seeking for himself some personal benefit. All of these factors support some leniency being shown to the practitioner despite the very long delays he was unable to explain. The Tribunal believes a reprimand is the appropriate order. Both parties sought a private reprimand, however, in terms of order, the Tribunal is not fettered by the way in which the complaint is framed or the orders sought by the parties. By virtue of the very serious nature of the complaint, the Tribunal does not consider that a private reprimand is an appropriate remedy in this case. The legislation, while providing for such an order, is silent on what circumstances might justify this remedy and it has been left for the tribunal to determine in a particular case whether special circumstances exist. This Tribunal considers that because of the unusual nature of the order for a private reprimand there would need to be present cogent special circumstances, particularly where there has been a finding of professional misconduct, to warrant such an order and the Tribunal finds that there are no such special circumstances in this case. There has been only one decision of this Tribunal to date where a private reprimand was ordered and the Tribunal is not persuaded however, that the special circumstances found in that case are sufficiently cogent to warrant a private reprimand in this case. The Tribunal therefore orders that: 1. That the Solicitor be publicly reprimanded. 2. That the Solicitor pay the costs of the Law Society, as agreed, at $2,500.00. 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.