The Legal Services Tribunal of New South Wales CITATION : Kenneth John Hickey [1996] NSWLST 16 PARTIES : Kenneth John Hickey FILE NUMBER(S) : of 1995 CORAM: Mr R. Clisdell (Chairman) - Ms J. Greenwood - Dr P.O. Miller A.M. CATCHWORDS: Professional Misconduct - make false statement :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: In the matter of Gregory John Elsworthy DATES OF HEARING: 12 November 1996 DATE OF JUDGMENT: 12/03/1996 LEGAL REPRESENTATIVES: Ms Deamer instructed by Mr L Pierotti for the Law Society. There was no appearance by or on behalf of the Solicitor. JUDGMENT: The Solicitor received instructions to advise and assist in relation to Workers Compensation proceedings in or about 1982. The Solicitor told the client that proceedings had been commenced and that he had briefed a Barrister. That information was false and misleading. He continued to mislead the client up until 1994 when the client sought assistance from another firm of Solicitors. The Tribunal made a finding of professional misconduct and the Solicitor was fined and ordered to pay costs. Complaint: By complaint filed in the Tribunal on 13 June 1996, the Law Society Counsel complained that the Solicitor, Kenneth John Hickey, was guilty of professional misconduct in that: (a) The legal practitioner was instructed by Ronald Jones in or about November 1982 to advise Mr Jones in relation to whether proceedings could be instituted. The legal practitioner failed to advise Mr Jones as instructed; (b) The legal practitioner misled Mr Jones in failing to tell Mr Jones that proceedings had not been instituted. The information sought compensation and orders that a monetary penalty be imposed and that the legal practitioner pay the Law Society's costs. When the proceedings came on for hearing on 12 November, the Tribunal was advised that the Complainant, Mr Jones, had withdrawn his request for compensation. Facts: The Law Society tendered Statutory Declarations by Gary James Still which annexed to it correspondence forming part of the Society's investigation and the legal practitioner's file. The Law Society also filed two Statutory Declarations by Ronald Clive Jones one dated 30 October 1996 and the other dated 26 June 1996. From the evidence, it appears that Mr Jones was injured in or about October 1981 when he fell over the cord of a vacuum cleaner he was using in his part-time employment as a cleaner. When he fell, he landed on a steel portion of the vacuum cleaner around which the vacuum cleaner cord was wound, and suffered a back injury. On or about 29 October 1982, Mr Jones first saw the Solicitor, seeking advice on compensation. In the interim period, he had undergone surgery and medical treatment. During November and December 1982, the Solicitor took initial steps to obtain medical reports, paid for a Doctor's report and served a claim on the employer. From then on, very little was done. When the Complainant received a Summons for non-payment of a medical account, the Solicitor advised him to pay the account as he would be reimbursed from his compensation claim later. In 1986, the Solicitor sent a letter to Mr Jones telling him that Counsel had been briefed and requesting some further information. He also sought some details from the employer and an up-to-date medical report. It is apparent that a Barrister had never been briefed and that the letter sent to the client on 20 August 1986 was clearly misleading. A draft statement was prepared for the client to sign and forwarded to him in September 1986. He again saw his doctor in October 1986. In July 1988, the Solicitor wrote again to the employer seeking a response to his letter of 20 August 1986. Mr Jones in his Declaration of 30 October 1996 said that he telephoned the Solicitor about three or four times a year inquiring as to the progress of his case. Although he did not record the dates on which he had conversations, he gave examples of responses he received to his enquiries in his Statutory Declaration at paragraphs 6, 8, 10, 15, 17, 18 and 20. On 6 May 1994, Mr Jones instructed another firm of Solicitors to act for him. They forwarded an authority signed by Mr Jones to the Solicitor on or about 13 May 1994. They finally received Mr Hickey's file on or about 7 April 1995, but not before the Law Society complaint had been filed and the Society had written to the Solicitor. Findings: As there was no appearance by or on behalf of the Solicitor and no evidence was put before the Tribunal to contradict any of the evidence filed on behalf of the Law Society, the Tribunal was satisfied that the Complaint had been established. Mr Jones' statutory declaration is supported by the paucity of documents contained on the Solicitor's file and the clearly misleading nature of the Solicitor's letter of 20 August 1986. The Solicitor filed a Reply to the Complaint on 29 October 1996 which said: "1. In the matter of Mr Ronald Jones, I admit the two findings of the Law Society of New South Wales of professional misconduct against me." Accordingly, the Tribunal finds that the grounds of professional misconduct are established. Submissions: Ms Deamer on behalf of the Law Society, submitted that this was a clear case of professional misconduct and that although the Society had not alleged gross delay in its complaint, this was a factor that the Tribunal should take into account when considering this matter. It had been the Law Society's intention to amend the Complaint to include a ground of gross delay, but in the absence of Mr Hickey, that created a difficulty. The Society elected to proceed on the Complaint as filed. Ms Deamer referred the Tribunal to a number of authorities which dealt with issues of misleading. In fairness to the Solicitor, Ms Deamer referred the Tribunal to the decision of Gregory John Elsworthy where although there was a finding by the Tribunal that the Solicitor had misled clients, that Tribunal found that on those facts, the Solicitor's conduct constituted unsatisfactory professional conduct. However, Ms Deamer sought to distinguish that decision by pointing out that the facts of this matter were more serious than those in the matter of Elsworthy. Ms Deamer sought to rely more strongly on the case of Graham Maurice Ellison in which there was a finding of professional misconduct in circumstances which were very similar to the circumstances of this case. Ms Deamer also informed the Tribunal that the Solicitor was an experienced practitioner. He was admitted on 27 November 1970, but is no longer practising. Ms Deamer reminded the Tribunal that there was no evidence filed on behalf of Mr Hickey or evidence as to his character. The only document before the Tribunal was Mr Hickey's admission of misconduct in his Reply. Finally, Ms Deamer submitted that this was an appropriate matter for a monetary penalty to be imposed. The Society was not seeking a protective order that the Solicitor's name be removed from the Roll. Penalty: The Tribunal having been satisfied that issues of professional misconduct were involved in the Complaint, and having made findings of professional misconduct, agreed with the submissions by the Law Society that this was an appropriate matter for a monetary penalty. The Tribunal considered a number of the authorities which have dealt with issues of misleading and determined that the appropriate penalty should be a fine of $3,000.00. Orders: 1. That Kenneth John Hickey be fined the sum of $3,000.00 such sum to be paid within thirty days of the date of this order. 2. That Kenneth John Hickey pay the costs of the Law Society in these proceedings, such costs to be agreed between the Society and the Solicitor and, failing agreement, to be assessed. 3. That in default of compliance with Order 1, the Solicitor not be issued with a Practising Certificate. 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.