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. REASONS FOR DECISION Ex-Tempore Decision 1 ROBBERDS: Now on behalf of the Tribunal I will now deliver the reasons and the orders to be made. Orders to 1, 2, 3, 5 and 6 which the Tribunal will make have been proposed by the parties as appropriate orders to be made. Order 4 is an order to which the Barrister consents. On the question whether a fine should be imposed the Bar Council submitted that it was entirely a matter for the Tribunal as to whether or not a fine should be imposed and made no submissions in that regard. Mr Craddock of senior counsel submitted that it was not appropriate for a fine to be imposed. He pointed to the fact that the conduct occurred in 2003 and in the Barrister's very early years as a barrister. Mr Craddock also referred to the folder of statements from barristers, solicitors and clients tendered today which he submitted showed that the barrister is now a competent practitioner. 2 It was submitted that having regard to the other orders proposed by the parties, an additional burden of a fine was unnecessary and would be tending towards a harsh disposition of the proceedings. Mr Craddock informed us of an additional financial cost which the Barrister has incurred as a result of his conduct, the subject of these proceedings. Last year his premium for professional indemnity insurance was $3000 but yesterday he paid a premium of over $13,000 for a cover of $1.5 million. Mr Craddock also informed us that the Barrister's taxable income for the year ended 30 June 2009 was $36,467 and that he is married with a dependent wife and three dependent children aged, 3, 7 and 10. 3 Mr Craddock also informed us that the Barrister has made an offer to Ms Elkins of $25,000 and that Ms Elkins did not pay all the Barrister's bills of costs. He said that Ms Elkins has not been asked to pay those outstanding bills nor will she be asked to pay further bills rendered in 2004 and 2005. The Tribunal has taken all of these matters into account and also the Barrister's affidavit sworn 7 June 2010 and has come to the conclusion that it is not appropriate to impose a fine in addition to the orders which will be made. 4 The statements tendered today show that the persons who made those statements consider the Barrister to be competent and the Tribunal is of the view that in the circumstances of this case, the imposition of a fine is not needed for protecting the public, see New South Wales Bar Association v Meakes [2006] NSWCA 340 at paragraph 94. The Tribunal is of the view that order 4 should be made because the Barrister, when giving his evidence in these proceedings in 2009, did not appear to appreciate the precise failings of his conduct. The Bar Council in its submissions today drew attention to this fact. It referred to the following passage in the Barrister's letter dated 11 April 2007 to the New South Wales Bar Association. "During the course of making submissions in this matter I have had cause to review my conduct and accept that there is some material which could lead the ADT to a finding of unsatisfactory professional conduct." 5 When asked whether he was able to identify what material he was referring to, in that sentence, he was unable to identify any specific material. The Tribunal is of the view that it is appropriate that the Barrister be publicly reprimanded for the reasons that it will have the effect of demonstrating to the profession, the public and the Barrister that the Barrister's conduct fell well short of the standard of competence and diligence that Ms Elkins was entitled to expect of a reasonably competent Australian legal practitioner and that such conduct will be appropriately dealt with by this Tribunal. 6 The orders of the Tribunal are as follows. The Tribunal finds: 1. That Timothy Owen Bland engaged in an 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; 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 could 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 9.00am until 4.30pm. b) on 23 June 2010 Effective Pleading from 9.00am until 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 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 requirements of 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. Order 6 is that the orders and the findings of the Tribunal be published. If it is necessary for me to make an order, I do so for this order to be extracted so it becomes a published judgment. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. REGISTRAR 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.