Council of the NSW Bar Association v Bland (No 2) [2010] NSWADT 162

CITATION: Council of the NSW Bar Association v Bland (No 2) [2010] NSWADT 162

DIVISION: Legal Services Division

APPLICANT Council of the New South Wales Bar Association PARTIES: RESPONDENT Timothy Owen Bland

FILE NUMBER: 082019

HEARING DATES: 8 June 2010

EXTEMPORE DECISION DATE: 8 June 2010 BEFORE: Robberds L QC- Judicial Member; Robinson W QC -Judicial Member; Bubniuk L - Non-Judicial Member

CATCHWORDS: Disciplinary application - unsatisfactory professional conduct - orders

CASES CITED: New South Wales Bar Association v Meakes [2006] NSWCA 340

APPLICANT P Nolan, barrister REPRESENTATION: RESPONDENT G Craddock SC, barrister

The Tribunal finds: 1.That Timothy Owen Bland engaged in unsatisfactory professional conduct 2.The relevant conduct upon which the Tribunal so finds is that Timothy Owen Bland: (a)in June 2003, advised proceedings be brought in the District Court against both the builder and the insurer and drafted a statement of claim seeking relief against them as defendants. No cause of action was pleaded against the builder. No cause of action was pleaded against the insurer for breach of the policy of insurance; (b)advised that it was not necessary to wind up the builder; (c)in December 2003 advised his client that a notice of motion brought by the builder to strike out the claim should be defended and subsequently defended that notice of motion in Court in a contested hearing when it was clear that the builder had to succeed on the motion; ORDERS: (d)on 6 August 2004 advised that the Home Building Act 1989 contained no definition of "insolvency"; (e)in August 2004, advised his client to pursue a notice of motion to strike out the defence filed by the insurer when it was clear that she would not succeed and which was ultimately dismissed on 18 October 2004; and in June 2003 failed to advise that;(f) a statutory demand should be served on the builder; (g)failing payment by the builder, an application be filed in the Supreme Court to wind up the builder; (h)upon a winding up order being made by the Supreme Court, a demand for payment be made on the insurer; (i)if the insurer failed to meet that demand, then and only then, sue the insurer for breach of contract; and (j)there was no need or reason to sue the builder on a debt or contract claim in the District Court. 3. The Tribunal orders that Timothy Owen Bland be publicly reprimanded. 4.(i) The Tribunal orders that Timothy Owen Bland undertake the following courses offered by the College of Law at his own expense: (a) on 17 June 2010, Supreme Court Procedure from 9am – 4.30pm; (b) on 23 June 2010, Effective Pleading from 9am – 4.30pm; and (c) on 19 August 2010, Building and Construction Law – an all day workshop. (ii) In the event that Timothy Owen Bland does not attend those courses, the Tribunal orders that he undertake by 30 December 2010 a course or courses of further legal education nominated by the Council of the New South Wales Bar Association, at his expense, relating to conducting commercial litigation, equivalent to not more than 10 and not less than 15 continuing professional development points (which he must complete in addition to the continuing professional development requirement for barristers). Such course or courses should be nominated by the Council after taking into account the reasons for decision in these proceedings, published on 4 February 2010. In the event that Timothy Owen Bland fails to complete that course or those courses, his practising certificate shall be suspended forthwith until he has completed the course or courses.5. Timothy Owen Bland pay the costs of the Council of the New South Wales Bar Association in the proceedings, as agreed or assessed.6. The orders and the findings of the Tribunal be published.