The Legal Services Tribunal of New South Wales CITATION : Patrick Joseph Daly, Solicitor [1991] NSWLST 1 PARTIES : Patrick Joseph Daly, Solicitor FILE NUMBER(S) : of CORAM: Mr F Herron (Presiding Member) - Mr G B Molloy - Ms N Keesing CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10/04/1991 - 12/04/1991 DATE OF JUDGMENT: 05/08/1991 LEGAL REPRESENTATIVES: Mr I.R. Coleman, instructed by Mr L. Pierotti, appeared for the Law Society of New South Wales Mr P.R. Capelin QC instructed by Mr J. Maguire, appeared for the Solicitor JUDGMENT: The Legal Profession Disciplinary Tribunal In the matter of Patrick Joseph Daly, Solicitor Determination and Orders Before: Mr F. Herron (Presiding Member), Mr G. Molloy, and Miss N. Keesing. Appearances: Mr I.R. Coleman, instructed by Mr L. Pierotti, appeared for the Law Society of New South Wales; Mr P.R. Capelin QC instructed by Mr J. Maguire, appeared for the Solicitor. In this matter the Council of the Law Society of New South Wales (the Complainant) complained pursuant to Section 135 of the Legal Profession Act 1987 (the Act) that the conduct of Patrick Joseph Daly, a legal practitioner, (the Solicitor) amounted to professional misconduct. The grounds stated in the complaint were: 1. Gross neglect, incompetence and delay. The Complainant sought the following orders: 1. That the Solicitor be reprimanded 2. That the Solicitor be fined. 3. An Order for costs. The Tribunal heard the matter on 10 April 1991, 11 April 1991 and 12 April 1991, and reserved its decision. The Complainant's case consisted of: 1. Complaint dated 3 October 1990 (exhibit "A"). 2. Statutory declaration of John Richard Hunt dated 3 October 1990 annexing a copy of the complaint (annexure "D"), and also annexing copies of three reports of an Investigator, Geoffrey Selwyn Lewis, appointed pursuant to Section 55 of the ®MDBR¯Legal Profession Act 1987 ®MDNM¯to investigate the affairs of the Solicitor. That appointment was made by a resolution of the Council of the Law Society of New South Wales on 11 August 1988. The three reports were dated 6 October 1988 (annexure "A"), 13 July 1989 (annexure "B"), and 16 August 1990 (annexure "C") (exhibit "B"). 3. Statutory declaration of Richard Allen Davies dated 5 April 1991 (exhibit "C"). 4. Statutory declaration of Charles Alexander Vandervord dated 5 April 1991 (exhibit "D"). 5. Copy letter dated 20 July 1988 from the Complainant to the Solicitor (exhibit "E").~ 6. Copies of five letters which had passed between Messrs. Hunt and Hunt, Solicitors, and the Solicitor (exhibit "F"). 7. Oral evidence by Geoffrey Selwyn Lewis, Solicitor. 8. Oral evidence by Richard Allen Davies, Solicitor. 9. Oral evidence by Charles Alexander Vandervord, Solicitor. The Solicitor's case consisted of: 1. Statutory declaration of the Solicitor dated 12 March 1991, including annexures and index (exhibit "1"). 2. Judgments in the matter of Ahmet (exhibit "2"). 3. Chronology in the matter of Ahmet (exhibit "3"). 4. Copy letter from Messrs. Hunt and Hunt, Solicitors, relating to workers compensation payback in the matter of Ahmet (exhibit "4"). 5. Eleven statutory declarations as to the character of the Solicitor, together with one letter as to character, and an index (exhibit "5"). 6. Oral evidence by the Solicitor. 7. Oral evidence by Peter Richard Garling, Barrister. Before proceeding to deal with the complaint, the Tribunal is moved to comment on the Complainant's presentation of certain documentary material to the Tribunal. Early in the hearing, the Complainant sought to tender a statutory declaration of John Richard Hunt dated 3 October 1990 which had annexed to it three reports of the Investigator Geoffrey Selwyn Lewis. That tender was objected to by Counsel for the Solicitor on the ground that the three reports contained material which was inadmissible in these proceedings and which could be highly prejudicial to the Solicitor. Counsel for the Complainant readily conceded that the objection was well taken, and he suggested that he should go through the material and indicate to the Tribunal those parts of the material which were admissible and those parts which were not admissible. Unfortunately the material in question was in the form of a spiral bound book which contained over 500 pages, and this presented the Tribunal with the practical problem of determining how to rectify the defect in a way which would be fair to both parties while minimising delay in the conduct of the proceedings. After some discussion it was agreed between the parties, and approved by the Tribunal, that Counsel for the Complainant would indicate those parts of the material which should be excised, so that the proceedings could continue on the basis of the amended material, and that during subsequent adjournments the Complainant would prepare substitute books with the inadmissible material omitted. It was then necessary for the Tribunal, with the assistance of both Counsel, to undertake a laborious and time-consuming clerical exercise in order to rectify the problem temporarily to enable the proceedings to continue, and it was not until the second day of the hearing that the substitute books in final form became available. It is indicative of the inconvenience and waste of time visited upon the Tribunal and the parties by this abortive exercise to note that it took up eight pages of the transcript. The Tribunal has noted this matter in some detail for two reasons: 1. Specifically to draw the attention of the Complainant to the problem, and to indicate the Tribunal's view that it is entitled to expect a higher standard from parties in the presentation of material for consideration in evidence. In doing so, the Tribunal wishes to make it clear that it casts no reflection on Counsel for the Complainant. In fact he did much to assist the Tribunal with the material available to him. 2. To lay the groundwork for part of the Orders of the Tribunal to be recorded later. The general "grounds for complaint" against the Solicitor, stated as "gross neglect, incompetence and delay" were amplified in that part of annexure "D" of exhibit "B" headed "STATEMENT OF PARTICULARS OF GROUNDS OF COMPLAINT" which formed part of the evidence in these proceedings. That statement listed eleven grounds. Each of those grounds was further dissected into specific items, and was supported by detailed particulars. The Tribunal will deal with each of those grounds, but it does not consider it is necessary to repeat the whole of that statement here. The grounds of complaint Ground 1 From about December 1986 the Solicitor acted for Mrs Fox (the mortgagor) in respect of an advance of $50,000.00 by Messrs Malcolm, Smith, Jones and Boland (the mortgagees) for whom the Solicitor also acted. The advance was to be secured by Deed of Charge (the deed) which provided for security to be given by the mortgagor to the mortgagees over shares held by the mortgagor in a home unit company. It was alleged that the Solicitor: 1(A) Failed to obtain searches and/or take reasonable steps to satisfy himself of the adequacy of the security. 1(B) Failed to complete and stamp security documents. 1(C) Failed to record the names of all of the mortgagees on the trust account ledger and further failed to promptly pay out interest monies. 1(D) Preferred the interests of Boland to those of the other contributory mortgagees. 1(E) Failed to ensure that Malcolm was promptly advised that the mortgage had been repaid on 12 May 1989 and that the monies were available for collection. 1(F) Failed to ensure that Malcolm was provided with a proper statement of account. Findings on Ground 1 1(A) As a result of material in the Solicitor's declaration (exhibit "1"), as well as evidence by the Solicitor and the witness Lewis, the Complainant did not pursue this part of the ground or the part of the ground identified as 1(B). 1(C) As to the first part of this part of the ground, the failure to record the names of Mr and Mrs Boland at the top of the trust account ledger, the Solicitor admitted the facts. In explanation, in his declaration (exhibit "1") and in evidence, the Solicitor said that the original contributors to the mortgage were Messrs Malcolm, Smith and Jones, that the trust account ledger was created in their names, and that the Bolands came later to the mortgage. He said that his computer accounting system imposed a limit on the length of the entry for client details, and that the omission of the names of Mr and Mrs Boland was due to oversight and practical difficulties imposed by the computer system. He readily acknowledged that he was aware of the provisions of regulation 7(3), the relevant regulation at the time. The evidence showed that this omission was never rectified; that it persisted throughout the life of the file from about August 1988 to November 1989. The regulation no longer applies, having since been superseded by the new regulation 14, and it is interesting to note that regulation 14 takes the obligation of a solicitor even further in that he is now required to maintain a separate ledger account for each matter for each client in respect of trust money. The Tribunal has no difficulty in finding that the Solicitor was in breach of the relevant regulation at the time in that the names of Mr and Mrs Boland were not shown in the title at the head of the trust account ledger. However, the evidence also showed that the Boland name appeared in standard accounting entries in the body of the trust account ledger recording their financial interests and transactions in a clear and open manner. Furthermore, it emerged from evidence that during the relevant period the trust account records of the Solicitor had been inspected by Trust Account Inspectors of the Complainant and by the Solicitor's own accountant, yet no query had been raised in relation to this omission. The Tribunal agrees with the submission made by Counsel for the Complainant, namely, that this should not be regarded as merely a technical breach which should be swept to one side and forgotten. On the other hand, the Tribunal is aware from its own experience that if this incident had occurred in isolation, and had been detected by a Trust Account Inspector of the Complainant, the most likely result would have been the delivery of cautionary advice and assistance to the Solicitor. Regulations are usually made for a good purpose, and this is particularly so in the case of regulations governing the operation of solicitors' trust accounts. Consequently the Tribunal would not want it to be assumed that a breach of regulations, however technical it may seem, would always be treated as other than a serious matter. It is a matter that is to be treated on the particular circumstances of the case, and in this case the Tribunal has taken into account the circumstances surrounding the breach, the Solicitor's explanation for the breach, and the nature of the breach itself. Having regard to those factors, the Tribunal finds that this part of ground 1(C), although fully established, is not of such a serious nature that, standing alone, would give rise to an adverse finding against the Solicitor. As to the second part of ground 1(C), the failure to promptly pay out interest monies, the Solicitor denied the allegation. In explanation, in his declaration (exhibit "1") and in evidence, the Solicitor denied that the relevant amounts the subject of the ground formed any part of the principal sum or interest advanced to or payable or repayable by the mortgagor. He said that the subject amounts represented capital received by him on behalf of the respective mortgagees upon trust to be accounted for at a convenient time after completion of the mortgage transaction, and that the amounts were in fact accounted for to the respective mortgagees in accordance with his instructions and within a period which was not unreasonable. That evidence was not challenged by the Complainant, and the Tribunal accepts it. Consequently the Tribunal finds that this second part of ground 1(C) has not been established. 1(D) The Solicitor denied this part of the ground and provided an explanation in his declaration (exhibit "1") and in evidence. He said that the term of the mortgage had been extended by an informal agreement between the parties. Towards the end of the extended term, when the mortgage was close to discharge, the mortgagor defaulted on an interest payment and sought to defer that payment to coincide with the impending settlement on discharge. The mortgagees Malcolm, Smith and Jones agreed to that arrangement. However, Mr and Mrs Boland did not agree. They required payment of the outstanding interest. In order to avoid the problems, delays and costs associated with prospective peremptory enforcement action on the mortgage (a course of action which, in any event, the other mortgagees did not require), the Solicitor paid the Boland interest from his own funds. He took this action after making a value judgment based on his personal knowledge of the parties and his knowledge of the value of the security. In due course the mortgage was discharged, and all mortgagees were fully paid, including penalty interest. On settlement the Solicitor reimbursed himself for the amount paid out of his personal funds. That reimbursement was made without interest and without additional legal charges. That evidence was not challenged by the Complainant, and the Tribunal accepts it. Consequently the Tribunal finds that this part of the ground has not been established. 1(E) The Solicitor denied this part of the ground and provided an explanation in his declaration (exhibit "1") and in evidence. The mortgagee, Mrs Malcolm, is the Solicitor's sister. He said that he had advised her promptly that the mortgage had been discharged, and that all subsequent dealings on her behalf had been in accordance with her instructions. A letter from Mrs Malcolm was annexed to the Solicitor's declaration (exhibit "1"). It confirmed the evidence of the Solicitor. That evidence was not challenged by the Complainant, and the Tribunal accepts it. Consequently the Tribunal finds that this part of the ground has not been established. 1(F) The Solicitor denied this part of the ground and provided an explanation in his declaration (exhibit "1") and in evidence. A copy of a letter from the Solicitor to Mrs Malcolm was annexed to the Solicitor's declaration (exhibit "1"). The Solicitor claimed, and the witness Lewis agreed in evidence, that the letter provided an adequate and proper statement of account following the transaction that had been concluded. The letter from Mrs Malcolm annexed to exhibit "1", already referred to in 1(E), confirmed that the Solicitor's action in providing the account was in accordance with her instructions. That evidence was not challenged by the Complainant, and the Tribunal accepts it. Consequently the Tribunal finds that this part of the ground has not been established. Ground 2 The Solicitor acted in the estate of Mary Bridget Hurley who died on 15 April 1984. It was alleged that the Solicitor: 2(A) Failed to lodge probate documents within a reasonable time of receiving instructions. 2(B) Failed to communicate adequately with the executrix in relation to progress of the application for probate. 2(C) Failed to hand over his file in respect of the estate to other solicitors then instructed on behalf of the estate within a reasonable time. Findings on Ground 2 2(A) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. In explanation, the Solicitor said in his declaration (exhibit "1") that in January 1985 he handed the day-to-day conduct of the matter to an employed solicitor, that in the same month he transferred his place of business, that he was preoccupied with the construction of a family home, and that he was affected by the break-down of his marriage and related events. He put these matters forward as "significant factors distracting me from giving proper attention to matters". While the personal problems which the Solicitor undoubtedly faced over much of what might be called the complaint period will be dealt with in detail by the Tribunal later, it is sufficient for the Tribunal to note, in connection with this and other grounds, the well established principle that personal misfortune is not an excuse for misconduct by a legal practitioner. The fact that in January 1985 the Solicitor handed the day-to-day conduct of the matter to an employed solicitor was the subject of cross examination (T97): "That would fall within the category of concession you have made earlier that you didn't supervise her stewardship of that file as well as you might? - That's correct." It emerged further in cross examination (T98) that the executrix was suggesting in June 1984 that she had sent to the Solicitor all relevant information to enable the application for grant of probate to proceed. The Solicitor was not prepared to concede that he had all required information at that time, but it became clear from his answers to cross examination that he did have all required information at the latest by November 1984. The application for grant of probate was not lodged until February 1986. The Solicitor was cross examined on that delay (T98): "At page 24 of your own declaration you made the admission, having admitted certain factual matters, that you failed to lodge the proper documents within a reasonable time of receiving instructions? - Yes." The Tribunal also had the benefit of a declaration (exhibit "C") by Richard Allen Davies, Solicitor, who was called as an expert-witness on probate matters. He said that in his opinion the estate was a relatively simple one and that the delay was unreasonable. In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of the ground has been established. 2(B) In his declaration (exhibit "1") and in evidence the Solicitor made a partial admission of some of the facts alleged in this part of the ground. He took issue generally with the allegation relating to non-communication with the executrix and said that in addition to the communications evident on the record, he also had a number of telephone conversations with the executrix, who was then in Melbourne, between 14 January 1985 and 3 September 1985. In cross examination on this aspect, the Solicitor re-affirmed that he had in fact communicated with the executrix during that period, but he said that he was not aware whether or not he had made any diary notes, file notes, or other notes relating to those conversations. He said that he had handed the file over to Melbourne solicitors instructed by the executrix and that it was no longer available to enable him to check his file notes. There was no evidence to support the Solicitor's claim that he had in fact communicated with the executrix during the stated period, nor was there evidence to the contrary. In reaching a finding on this part of the ground, the Tribunal has taken into account the manner in which the Solicitor gave his evidence on this matter and throughout the hearing. The Tribunal will deal with that aspect of the Solicitor's presentation in more detail later, but it is sufficient to say at this point that the Tribunal is not comfortably satisfied that this part of the ground has been established. 2(C) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. Further in his declaration he said: "I have no justification for my failure to hand the file over promptly. I rely upon the matters raised by me in relation to Complaint (A) above as being matters which may tend to explain what (®MDBR¯sic®MDNM¯) I failed to deliver the file when I should have done so. I consider that, in addition to the above, it is possible that my failure to deliver the file was contributed to by my knowledge of the fact that the matter had not been handled properly." In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of the ground has been established. Ground 3 Between 12 March 1979 and 19 August 1988 (note: this year was stated originally in the STATEMENT OF PARTICULARS OF GROUNDS OF COMPLAINT as "1990". It was corrected by the Solicitor in exhibit "1" and the correction was accepted by the Complainant) the Solicitor had the conduct of workers' compensation and common law claims by one Emirali Ahmet (the plaintiff). It was alleged that the Solicitor: 3(A) Failed to file documents in relation to proceedings within a reasonable time or in some instances at all. 3(B) Failed to reply to correspondence with another solicitor within a reasonable time. 3(C) Failed to appear at Court hearings on not less than three occasions. 3(D) Generally failed to prepare the plaintiff's case for trial in any reasonable manner. 3(E) So conducted the proceedings on behalf of the plaintiff as to render the plaintiff liable for costs orders against the plaintiff. Findings on Ground 3 In view of the Solicitor's responses to the various parts of this ground, parts 3(A) to 3(E) inclusive, it is convenient to deal with those parts collectively and to make particular reference to individual parts of the ground where necessary. Generally as to this ground the Solicitor admitted the facts alleged. However, he claimed that his actions throughout the conduct of the matter resulted from deliberate decisions on his part made in the best interest of the client. A brief history of the matter will provide a better understanding of the problem. This brief history is extracted from evidence before the Tribunal in respect of which there was no real dispute: The Solicitor was the third solicitor to be engaged by the Plaintiff. When the matter came into the hands of the Solicitor a Supreme Court statement of claim had already been issued but the matter had not progressed beyond that point. The Plaintiff was born in Cyprus in about 1919. He was approaching the end of his normal working life. He was a very difficult client who had a highly inflated view of the worth of his claim. He did not co-operate reasonably in the conduct of his claim. For example, on many occasions he failed to attend for medical examinations arranged not only by the opposition, but also by the Solicitor. He had a wife and six children, and he was in receipt of substantial workers compensation payments. Those payments were additionally beneficial in that they were being made under the provisions of the old Act. Among other things, this meant that they would not normally terminate at age 65 years. In the judgment of the Solicitor, the workers compensation payments were of such value to the Plaintiff, in the circumstances which existed for the Plaintiff at that time, that they should not be put at risk. The common law claim was fraught with difficulties. There were problems as to both liability and damages. The Plaintiff had two accidents under the same employer, the first in 1974 and the second in 1975. In both accidents the circumstances were identical - he slipped on liquid spilt on the floor of a paint factory. There were no witnesses to the first accident and the evidence as to the second accident was not abundant. The medical evidence available to the Solicitor did not, in his judgment, support the Plaintiff's claim. On the information available to him, the Solicitor had grave doubts whether the Plaintiff could succeed in the common law claim. Faced with those circumstances, the Solicitor made a conscious decision to delay the common law claim. He concluded that it would be better for the Plaintiff to retain his workers compensation rights at least until his children had reached an age when they were no longer dependent on him, after which the matter of the common law claim could be reviewed in the light of the reduced risk of loss of financial rights which would then have applied. It is interesting to note that when the claim was taken over from the Solicitor, and ultimately pursued by another Solicitor retained by the Plaintiff, the result was a verdict for the defendant, with twelve questions as to liability all answered against the Plaintiff. There was an appeal to the Court of Appeal which resulted in a 2:1 decision for a new trial. After an application for leave to the High Court, the matter was referred back to a Judge of the Supreme Court who gave what has been described as "a modest verdict" for the Plaintiff. While the Tribunal has not accepted these circumstances as a determining factor in considering this ground, they do provide some indication of the difficulties which faced the Solicitor in his conduct of the matter. In the light of the history, the Tribunal has concluded that if it accepts the version of the Solicitor it would not make an adverse finding against him in respect of this ground. Indeed, Counsel for the Complainant fairly commented (T137): "If the tribunal accepts what Mr Daly says then obviously, in relation to the Ahmet case, the tribunal would be entitled to take the view that the conduct, though unusual and though not explained prior to the statutory declaration despite, I would submit, an abundance of opportunity to do so, probably does not satisfy the criterion." In considering the Solicitor's version, the Tribunal draws attention to two aspects of the evidence, and three parts of the ground, which have given it some specific concern: 1. The Solicitor filed a notice to set down for trial during the period when he had the conduct of the matter. It is well accepted, and was so stated in evidence, that this action has the effect of advancing a claim towards a hearing. Consequently the action appears inconsistent with the Solicitor's claim that his object was to delay the claim. When cross examined on this point (T102) the Solicitor said that at the time he filed the notice he had not had an opportunity to discuss the claim in detail with the Plaintiff and his family, and that it was only afterwards that he formed a firm opinion that the claim should be delayed. 2. It was not until the Solicitor's declaration (exhibit "1") dated 12 March 1991 that he provided, in any real detail, his reasons for delaying the Plaintiff's claim. It was clear on the evidence that the Solicitor had ample opportunity to provide that detail much earlier than he did. In cross examination (T103) he was referred to a letter which he wrote to the Complainant on 24 August 1988 in relation to the Plaintiff's case, and it was pointed out to him that he did not provide the detail in that letter. In response he said that his letter was in reply to a letter from the Complainant seeking no more than a chronology of the events in the Plaintiff's claim. He pointed out that he had in fact made some reference in the letter to the workers compensation problems, although he conceded that he did not provide the detail which became available much later in his declaration (exhibit "1"). Further in cross examination (T104) it was suggested to the Solicitor that it would have been a very simple thing for him to have made it absolutely clear to the Complainant why he had delayed the Plaintiff's claim, and he was asked: "It might have saved a lot of time and effort and worry for a lot of people if you'd done it? - In the light of that question, yes." 3. Part 3(B) of the ground complained that the Solicitor had failed to reply to correspondence with another solicitor within a reasonable time. This referred to the Solicitor's failure to reply to correspondence from his predecessor who sought an undertaking as to costs, having handed the file over to the Solicitor. It was clear from the evidence that the Solicitor did in fact fail to reply to a number of letters from his predecessor. However, it was also clear that the Solicitor did in fact give a clear undertaking as to costs to his predecessor in a letter written immediately after the file was handed over. While the Tribunal is satisfied that the subsequent correspondence was probably unnecessary, it does express its concern at the Solicitor's discourtesy in failing at least to respond to, and put an end to the unnecessary correspondence. The Tribunal makes the point that it is a matter of basic courtesy to reply to correspondence, however aggravating, even if only to express disagreement and put an end to it. 4. Part 3(C) of the ground complained that the Solicitor had failed to appear at Court hearings on not less than three occasions. The hearings were primarily before Registrars for matters such as call over and directions. In explanation, the Solicitor said that he had appeared, or caused an appearance to be made on behalf of the Plaintiff, in respect of any such hearings of which he had notice He conceded that the record showed that there had been no appearance on some occasions, but he maintained that he had not received notices in respect of those hearings. Indeed the absence of any notices on the file went some way to support the Solicitor on that point. In addition, evidence from the Solicitor, and the expert witness called by the Complainant (Mr Vandervord) was to the effect that during the relevant period the Court was in a state of turmoil in the area of listing procedures and that it was not uncommon for parties not to receive notices of such hearings. Indeed, it is the experience of the Tribunal that this problem still exists to some degree. 5. Part 3(E) of the ground complained that the Solicitor had so conducted the proceedings on behalf of the Plaintiff as to render the Plaintiff liable for costs orders against the Plaintiff. In explanation, the Solicitor said that a costs order had been made against him personally and not against the Plaintiff, that in any event he had accepted personal liability for those costs, and that the incurring of the costs penalty had been balanced against his deliberate strategy in delaying the common law claim. Having considered all the evidence, and having taken into account the factor already referred to as to the manner in which the Solicitor gave his evidence, the Tribunal is not comfortably satisfied that the Solicitor's explanations should be rejected. Consequently the Tribunal accepts the Solicitor's explanations and finds that the ground has not been established. Ground 4 Between 1986 and, at least, 1 June 1989 the Solicitor acted in the estate of A.G.N. McPherson. It was alleged that the Solicitor: 4(A) Unreasonably delayed in lodging an application for probate. 4(B) Unreasonably delayed in answering requisitions from the Probate Office. Findings on Ground 4(A) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. In explanation, the Solicitor said that this was a small estate and that the assets were such that an application for grant of probate need never have been made This was supported by Mr Davies, the expert witness called by the. Complainant. The estate file was handled by an employed Solicitor. The evidence indicated that the application for grant of probate was made as a result of an erroneous requirement received by the Solicitor in relation to one of the assets. That erroneous requirement was not detected by the Solicitor even though, as he said in evidence, all correspondence that came into the office passed through his hands for perusal. Leaving aside that the application for grant of probate was not necessary, the application was in fact made nearly six months after all required information was in the hands of the Solicitor. That delay, according to the expert witness Davies, constituted unreasonable delay (exhibit "C"). In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of the ground has been established. 4(B) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. In explanation, the Solicitor said in his declaration (exhibit "1") that as the grant of probate was not necessary it need not have been prosecuted to grant; "that as there was no need for probate, there was no need to answer the requisitions". However, in cross examination (T109) he exhibited a change in attitude: "May we take it, having regard to what you told your learned counsel in chief about court process, such as requisitions from the probate office, that I don't need to labour with you the inappropriateness of simply letting those probate office requisitions go unanswered? - No, that's correct." "And you say that you now recognise that that wasn't the right way to go about it, correct? - That's correct." In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of the ground has been established. Ground 5 In 1986 the Solicitor acted for Mrs T.R. McCurtayne (the client) in proceedings in the Family Court of Australia, the client having been granted Legal Aid in respect of those proceedings. It was alleged that the Solicitor: 5(A) Failed to communicate with the Australian Legal Aid Office (ALAO), as it then was. 5(B) Failed to provide to the ALAO an itemised account, by reason of which the client was, for a substantial period, deprived of monies and of the opportunity to earn interest on such monies. Findings on Ground 5 5(A) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. In explanation, the Solicitor put forward his personal problems and the resulting personal stress, as well as the problems associated with the moving of his office to other premises. The Tribunal has already referred to these matters earlier and has expressed its views as to those matters. The Tribunal has also noted its views on failure to reply to correspondence. Those same views apply to this matter. In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of the ground has been established. 5(B) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. In explanation, the Solicitor maintained that he had in fact supplied the ALAO with a detailed account and that he had retained the client's monies because he was required to do so by the ALAO. The evidence showed that the Solicitor had in fact sent a detailed account to the ALAO. It was in a form frequently used between solicitor and client and between solicitor and solicitor. However, it is well known that the ALAO requires a specific form of itemised account, and the ALAO made this quite clear to the Solicitor in response to his detailed account. Notwithstanding this requirement, the Solicitor failed over a long period of time to comply, and in fact he never at any time complied with the requirement because the ALAO, no doubt in frustration over the continuing delay of the Solicitor, made an arbitrary assessment of his costs and closed the matter. It is true to say that the Solicitor was required by the ALAO to hold the client's money, but this was only because of the Solicitor's delay in providing an itemised account so that the file could be closed. This sorry episode was dealt with in cross examination (T109): "In relation to Mrs McCurtayne the bottom line is this, isn't it, that from October 86 to June 88 $2,500 from her settlement money was retained in the trust account? - Yes." "In June 88 $2,000 of it was repaid to her? - Yes." "So that, in effect, she was kept out of $2,000 of her money from October 86 to June 88? - Yes." "So you were on notice from December 86 that legal aid did not accept that account as an itemised account which they would act on to assess your costs? - That's correct." "And, of course, I don't think you ever did assess your costs, did you, legal aid arbitrarily assessed them? - I did not produce a bill in appropriate form." In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of the ground has been established. Ground 6 and Ground 7 These two grounds were so related that they were dealt with together at the hearing. They both arose out of the same set of circumstances - two clients, Messrs Downey and Davie, both injured in the same accident. Both claims were settled, and the problems giving rise to the complaints related to the taxation and recovery of costs. In those circumstances it is convenient that the Tribunal should deal with both matters together here. In September 1984 the Solicitor acted for Mr Downey and Mr Davie (the clients) in proceedings in the Supreme Court of New South Wales by the clients against Brownbuilt Limited and Thiess Toyota Pty Ltd. It was alleged that the Solicitor: (A) Delayed unreasonably in the taxation and recovery of party and party costs. (B) Delayed unreasonably in finalising the clients' accounts. Findings on Ground 6 and Ground 7 (A) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of both grounds. In explanation, the Solicitor again put forward his personal problems and the resulting personal stress, as well as the problems associated with the moving of his office to other premises. The Tribunal has already expressed its views as to those matters. The gravity of this part of both grounds is illustrated by the answers given by the Solicitor in cross examination (T110): "If we go to the Downey matter. In relation to Downey the position in that matter is that you had orders for costs pursuant to the terms of settlement? - Yes." "And you were withholding moneys in the trust account until the costs had been taxed and paid by the parties liable to pay, correct? - That's correct." "And the position is this, that you knew by 28 November 1984 that the assessment of costs which you had sent on 12 October 1984 was not acceptable to the defendant's (®MDBR¯sic®MDNM¯) solicitors? - That's correct." "It wasn't until 30 July 1986 that bills in taxable form were prepared and served? - That's correct." "Then, of course, there was a requisition which you had to satisfy by giving an undertaking? - That's correct." "That issued in about February 1987, didn't it? - That's correct." "It wasn't answered until 2 June 1989, two years and four months later? - My recollection - that's correct." "Which you would concede to be an inexcusable delay in answering that simple requisition? - Yes." In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of both grounds has been established. (B) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of both grounds. The Solicitor again put forward the same explanation as that put forward in relation to part (A) of both grounds, and the Tribunal had already addressed that point. Of course the delay in final accounting to the clients was a direct consequence of the circumstances surrounding part (A) of both grounds. The practical effect of the delay was that the clients were deprived of a portion of funds to which they were entitled for a very long time. A further disturbing feature of this complaint is that although one of the defendants paid 20 per cent of the taxed costs in February 1990, the Solicitor had not accounted for or disbursed that money as at the date of this hearing, nor had he recovered the balance of 80 per cent due from the other defendant. In fairness to the Solicitor, the Tribunal notes that he gave an undertaking to complete both these matters without further delay, to waive any of his entitlement to solicitor and client costs in both matters, and to refund to both clients all moneys then being held. In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of both grounds has been established. Ground 8 In 1984, and subsequently, the Solicitor acted in the estate of Rodney Knight Watson. It was alleged that the Solicitor delayed unreasonably in the filing of an application for grant of probate. Findings on Ground 8 In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this ground. However, he denied that in the circumstances which surrounded the matter he was guilty of unreasonable delay. The evidence showed that the deceased died on 20 August 1984. The Solicitor received instructions on 31 August 1984 from Ethel Jean Watson, the executrix and sole beneficiary. The estate was a simple one, but application for probate was not lodged until 26 March 1986. The estate was handled by Christopher Gordon Taylor, a managing clerk with over 20 years experience and now a qualified solicitor, who was employed by the Solicitor at that time. The client executrix had been introduced to the Solicitor's practice by Mr Taylor. The deceased had two sons, Andrew Knight Watson and Stephen Cameron Watson, and it was clear from the evidence that there was a great deal of acrimony between these two. The Solicitor said that he had discussions from time to time with Mr Taylor about the conduct of the file and that Mr Taylor had reported problems in relation to the acrimony between the two sons. However, the Solicitor claimed that he had no knowledge of the detail of the estate until receipt of the first report of the investigator. In the light of that background, the Tribunal has considered the following replies by the Solicitor in cross examination: "The Watson estates, in relation to Mr Watson first the position is that you accept, do you not, that the delay in filing the probate application in that matter of some 19 months was unreasonable? - Yes." "You conceded it (the estate) was placed at a risk of loss by virtue of the delays? - Yes." The risk of loss referred to here arose out of a defect in a Transmission Application of an Electricity Commission holding, and the death of the executrix on 2 January 1987 which compounded the problems. However, the Solicitor, in his declaration (exhibit "1") said: "Any loss to the estate beneficiary was incurred with her full knowledge and agreement." There was no evidence to support that claim, nor was there any evidence to the contrary. The Tribunal's consideration of this ground was complicated further by a letter dated 8 June 1988 from Stephen Watson to the Complainant (page 310 of the complaint documents). Of the two sons, Stephen was obviously closer to the executrix and took the major part in the instructions given in relation to the estate of his father, as well as the later estate of his mother. In his letter to the Complainant he said: "Mr. Taylor has acted faithfully and promptly on my instructions at all times, I was present on most occasions when my late Mother gave him instructions regarding the estate of my late Father and he acted faithfully and promptly on those instructions." Having considered all the evidence, and having taken into account the factor already referred to as to the manner in which the Solicitor gave his evidence, The Tribunal is not comfortably satisfied that the Solicitor's explanations should be rejected, or that in the circumstances, having in mind the experience of Mr Taylor, he failed to exercise reasonable supervision over the conduct of the matter. Consequently the Tribunal accepts the Solicitor's explanations and finds that the ground has not been established. Ground 9 The Solicitor acted in the estate of Ethel Jean Watson. It was alleged that the Solicitor delayed unreasonably in the filing of an application for grant of probate. Findings on Ground 9 The evidence showed that the deceased died on 2 January 1987 and the Solicitor received instructions to act on 21 January 1987. The deceased had appointed her two sons as her executors. A number of the matters already referred to in relation to Ground 8 - the handling of the file by Mr Taylor; the Solicitor's discussions with Mr Taylor; the letter from Stephen Watson to the Complainant; the acrimony between the two sons - apply also to this ground. Within about one month of the death of the deceased the acrimony between the two sons had advanced to the stage where Andrew Watson had refused to cooperate in the progression of the estate to probate and had instructed separate solicitors. In his letter to the Complainant dated 8 June 1988 (already referred to in Ground 8), Stephen Watson said: "I have considered it pointless to advance settlement of the Estate in the circumstances, particularly having regard to the confirmed intentions of my Joint Executor to renounce his executorship and challenge the Estate." Eventually the two sons resolved their differences and made a joint application for grant of probate on 12 August 1988. Having considered all the evidence, the Tribunal finds that this ground has not been established. Ground 10 Between May 1984 and April 1988 the Solicitor acted for Miss C. Sorensen (the client) in a personal injuries claim in the Supreme Court of New South Wales. It was alleged that the Solicitor: 10(A) Delayed unreasonably in prosecuting the client's claim. 10(B) Failed unreasonably to attend Court hearings. 10(C) Delayed unreasonably in transferring the file to other solicitors then instructed by the client. Findings on Ground 10 10(A) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground, although in some explanation he said that the client was emotional, a difficult client, and extravagant with her complaints . Nevertheless the evidence showed that there were long delays in the rudimentary steps necessary to prosecute the client's claim. Perhaps the most serious delay related to the Solicitor's failure to file part 33 particulars. That delay continued from 1984 until the Solicitor parted with the file in April 1988. The delay generally was of such a nature that a Judge of the Supreme Court took what might be regarded as a very unusual step in writing to the Solicitor about it. On 18 September 1986 Mr Justice Hunt wrote to the Solicitor enclosing a copy of a letter which His Honour had sent to the client in response to a letter from the client. His Honour's letter informed the Solicitor that the Solicitor would have to explain his failure to appear on behalf of the client on a number of occasions and said: "the case is obviously one to which special attention should be given in the circumstances." Despite that very significant caution, which one would have expected the Solicitor to take most seriously, it was not until three months later that he wrote to the client asking her to call upon him. The gravity of the matter was illustrated in cross examination (T116): "I want to suggest to you that the failure to do those things was not attributable to anything which Miss Sorensen either did or didn't do to assist in preparation of her case? - Apart from the question of her economic loss, yes, I'd accept that." "In that particular matter you did have the benefit of a letter addressed to you - page 320 - by a judge of the Supreme Court dated 18 September 1986, didn't you? - Yes, I did." "And you recall the concluding words which appear there, "the case is obviously one to which special attention should be given in the circumstances"? - Yes, I do." "That, might I suggest, would have sounded a warning to you in relation to the matter that you needed to look to preparing somewhat more diligently than appeared to have been the case up to that point? - I accept what you say." "But in fact it wasn't until three months later that you wrote to the client asking her to arrange to call upon you, was it? - That's correct." "If we take it to a narrower period, from the time of the letter that Mr Justice Hunt wrote you on 18 September 86 to April 1988 that was a totally unreasonable delay in filing the particulars, wasn't it? - It was unreasonable. Yes, it was unreasonable." "In fact, I think the conduct - looking back on it, the conduct of this piece of litigation with hindsight, you would admit, fell far short of the standard you would have expected of a solicitor handling a case of this kind? - Yes." In view of the admissions made by the Solicitor, and the evidence adduced, the Tribunal has no difficulty in finding that this part of the ground has been established. 10(B) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground, taking the same points in explanation as he did in relation to ground 10(A). The particulars accompanying the ground alleged that the Solicitor unreasonably failed to attend five listings hearings on 4 June, 1 August, 8 October, 12 December 1985 and 27 February 1986. In his declaration (exhibit "1") the Solicitor admitted that he did not attend the hearings on 4 June, 1 August and 8 October. He said that he thought the defendant's solicitor may have mentioned the matter for him on 27 February 1986, that there was no hearing on 12 December, 1985, and that he was in some doubt whether he had notification of "all those Directions Hearing dates". The Tribunal refers again to those matters covered, and those parts of the evidence quoted in relation to ground 10(A), and has no difficulty in finding that this part of the ground has been established. 10(C) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground, taking the same points in explanation as he did in relation to ground 10(A). However, he went further to deny that his delay in handing over the file was unreasonable, maintaining that the client contributed to that delay. The evidence showed that on 7 April 1987 solicitors then instructed by the client wrote to the Solicitor requesting the delivery of the file. On 1 June 1987 the solicitors again wrote to the Solicitor enclosing a further authority for delivery of the file. There were further communications between the solicitors and the Solicitor, and between the Complainant and the Solicitor, about the delivery of the file, but it was not until 18 April 1988 that the Solicitor handed over the file. The Solicitor said that in the course of his conduct of the matter he had, in accordance with the client's instructions, given to a bank an irrevocable undertaking to pay certain funds to the bank out of any verdict moneys received on behalf of the client. He claimed that his delay in handing over the file was caused by the failure of the client to give him a release from that undertaking. However, it is clear that he did not require a release from the undertaking because it was dependent upon verdict moneys coming into his hands, and as he no longer had the conduct of the matter that situation could not arise. It would have been sufficient, and quite simple, for the Solicitor to have notified the bank that his instructions had been withdrawn. Having regard to all the evidence as to the ground generally, the Tribunal has no difficulty in finding that this part of the ground has been established. Ground 11 Between 1979 and 1987 the Solicitor acted for Mr William Wild (the client) in a claim in the Supreme Court of New South Wales, subsequently in the New South Wales Court of Appeal, and further in a new trial in the Supreme Court of New South Wales. It was alleged that the Solicitor: 11(A) Unreasonably failed to claim on behalf of the client for the client's costs and disbursements of the first hearing, notwithstanding that the client was in receipt of a grant of legal aid, as a result of which the client paid the Solicitor's profit costs of $15,000 and the disbursements, including $4,260.50 in excess of the amount which had been paid either by the client prior to the grant of legal aid or by the Legal Aid Commission subsequent to the grant of such legal aid. 11(B) Unreasonably failed to seek legal aid on the hearing in the Court of Appeal. 11(C) Unreasonably, and in breach of Sections 41 and 46 of the Legal Services Commission Act 1979, rendered and accepted payment of solicitor and client costs and disbursements in respect of the trial before the Master without the approval of the Legal Aid Commission. 11(D) Unreasonably failed to communicate with the Legal Aid Commission between September 1982 and August 1988 and subsequent to that date. 11(E) Failed, in breach of his obligations to the Legal Aid Commission, to account to the Legal Aid Commission in respect of costs and disbursements of the trial before the Master and to seek from the Legal Aid Commission payment in respect of the work which had been done and the disbursements incurred in respect of the hearing before the Master. Findings on Ground 11 11(A) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. However, he disputed the inferences drawn by the Complainant from those facts and explained the matter in evidence. The evidence showed that there was a trial before the Master which resulted in a verdict for the client for $290,000. Prior to that hearing the Solicitor had applied for and received a grant of legal aid for the client. After the hearing the defendant appealed on the issue of damages only. There was a stay of proceedings, and it was a condition of the stay that the defendant pay to the client or the Solicitor the sum of $100,000. After the verdict the Solicitor informed the Legal Aid Commission of the result of the hearing, of the appeal and of the stay, and of the condition of the stay. He sought the permission of the Commission to invest the conditional payment for the benefit of the client pending the hearing of the appeal. The Commission agreed to that proposal. The Defendant sent to the Solicitor the sum of $83,164.54 after having made deductions from the sum of $100,000 to cover outstanding hospital, ambulance, and other out of pocket expenses. The Solicitor invested $80,000 on behalf of the client and retained the balance. At all times the Solicitor discussed the question of costs with the client for whom he also acted in a number of other matters involving complex conveyancing and money-lender transactions. Thereafter in relation to the appeal the Solicitor made a conscious decision that it was not necessary, or even appropriate, to apply for further legal aid. From his experience the client would not have been eligible for legal aid in view of the money then in hand, and also in view of the fact that the appeal was limited to the issue of damages. These aspects of costs, and the effect on the client, were explored fully with the client in conference with Senior Counsel and the Solicitor. The Court of Appeal ordered a new trial limited to damages. However, the new trial did not proceed because the claim was settled for $275,000 inclusive of costs. All party and party costs, including the proceedings back to the original hearing, were included in that ultimate settlement. Having considered all the evidence, and particularly the evidence provided by the Solicitor subsequent to the initiation of the complaint, the Tribunal is not satisfied that this part of the ground has been established. 11(B) This part of the ground falls within the ambit of the Tribunal's consideration of part 11(A) above, and the Tribunal makes the same finding, namely that it is not satisfied that this part of the ground has been established. 11(C) As the evidence unfolded, this part of the ground resolved itself into an allegation that the Solicitor unreasonably paid fees to junior counsel in breach of the Legal Services Commission Act 1979. Any such breach of the Act is, of course, a very serious matter, and the penalty provided is severe. However, in considering the matter it is necessary to have regard to the circumstances disclosed in evidence. The evidence showed that the Solicitor received a memo of fees from counsel. At the time the Solicitor was unaware that counsel had already sent a memo of fees to the Legal Aid Commission and had been paid in accordance with the legal aid scale. The memo of fees sent to the Solicitor by counsel sought payment from the Solicitor of the difference between the legal aid scale and counsel's normal full fees, a payment to which counsel was clearly not entitled having regard to the legal aid grant. The Solicitor, carelessly it would seem, and apparently in the rush of work, overlooked the significance of the matter and authorised his staff to pay the amount sought by counsel. The Solicitor has since reimbursed the Commission for the money which it paid out for Counsel's fees, plus the additional 10 per cent of the allowed charges. He has made that payment out of his own funds. As at the date of the hearing he had not sought a refund from counsel, but he is clearly entitled to such a refund. Having considered the evidence the Tribunal is satisfied that this part of the ground has been established technically. However, in the circumstances described, the Tribunal does not consider that the breach is one in respect of which it is prepared to make an adverse finding against the Solicitor. 11(D) In his declaration (exhibit "1") and in evidence the Solicitor admitted the facts alleged in this part of the ground. Although the evidence showed that the Solicitor did have some communication with the Legal Aid Commission, it is clear that his failure to communicate with the Commission, to use his own words taken from his declaration (exhibit "1" at page 82), "was unjustified". The Tribunal has already indicated its view on the failure to reply to correspondence. That view applies also in this instance. Having considered the evidence the Tribunal is satisfied that this part of the ground has been established. 11(E) This part of the ground falls within the ambit of the Tribunal's consideration of part 11(A) above, and the Tribunal makes the same finding, namely that it is not satisfied that this part of the ground has been established. Background of the Solicitor and of the complaint and hearing Before proceeding to its final findings, the Tribunal will deal with matters of background which it considers relevant: The Solicitor is 44 years of age. He was admitted as a Solicitor of the Supreme Court of New South Wales on 3 June 1977. From shortly before admission until December 1978 he was employed by a city law firm. On 3 January 1979 he commenced practice at Crows Nest as a sole practitioner. He soon established a very busy suburban practice. In January 1985 he moved his practice to Chatswood, and in June 1988 he moved again to his current premises also in Chatswood. His practice has continued to flourish and he carries a heavy work load. He has been assisted from time to time by employed qualified staff. The Solicitor was married in October 1974. There are two children of the marriage. In 1983 the Solicitor and his wife commenced building a new home on property at Northbridge. Problems relating to the building project placed considerable strain on the family. In May 1985, shortly after moving into their new home, the Solicitor's wife terminated the marriage relationship in circumstances which were very distressing to the Solicitor. The matrimonial problems placed the Solicitor under severe stress and created disruption and distraction which flowed into the conduct by him of his law practice. Eleven character declarations and one character letter supported the Solicitor's honesty, integrity, good character, and normally faithful pursuit of the best interests of his clients. Peter Richard Garling, Barrister, who had provided one of the declarations, also attended to give evidence. Among other things, Mr Garling said (declaration part of exhibit "5"): "I have also observed that during the period of his matrimonial problems, that the Solicitor suffered significantly in a personal sense from the failure of his marriage and the circumstances in which it occurred, and the consequent need to adjust his lifestyle to accommodate being separated from his family. This had a clearly detrimental effect on the Solicitor's ability to attend to his practice. This period of personal disruption is now behind him. "In my opinion the honesty and integrity of the Solicitor is beyond question. He is a man who enjoys a good reputation amongst his peers, and is a man who attends to his clients generally with what I believe to be diligence and competence. "The occurrences which bring him before the Tribunal are matters, to my observation, which can properly be regarded as out of the ordinary and are certainly contrary to the character of the Solicitor whom I know." It has already been established that the Solicitor, as a sole practitioner, conducted a very busy suburban practice which carried with it a heavy work load. In the course of the Complainant's investigation of the Solicitor, the investigator inspected about 110 files. The complaint relied upon 11 matters and the major part of one of those matters was withdrawn at the beginning of the hearing. Of those of the 11 grounds found by the Tribunal to have been established, the Tribunal considers four to be quite serious, namely those arising out of grounds 5 (McCurtayne), 6 (Downey), 7 (Davie), and 10 (Sorensen). Two of those (grounds 6 and 7) arose out of the same circumstances. The Tribunal considers the remaining established grounds to be not so serious. The manner in which the Solicitor gave his evidence was remarkably and refreshingly open and frank. He was remorseful in relation to his past conduct. Two extracts from his evidence (T91 and T92) serve to illustrate his attitude: "Clearly there have been some failings by me in the past in dealing with my clients and former clients which I clearly regret that this has got to this stage. I don't think anyone would like to be in my position at the moment, but it's happened and I can't say any more than, you know, I'm very upset that it's got to this stage. I clearly have not done as much as I could in respecting my clients' entitlement from me as a solicitor. "...clearly this has been a salutory lesson to me. I know that it does not happen now in the conduct of my business. I believe that I had some, perhaps, emotional family problems which detracted me from completing matters in a proper manner over a period perhaps from approximately 1985. Those problems, hopefully, are behind me. I wish to continue as a solicitor. I think I have something to offer to my clients, and hopefully these sorts of incidents will not occur again. I deeply regret that they have, and I deeply regret having to be here and I am going to suffer some financial penalties if not other penalties." The Solicitor went on to describe some of the procedures he has put in place to overcome the problems which he had experienced in the past. The Tribunal was impressed by the Solicitor's attitude at the hearing, but it wishes to reinforce a point which was made by Counsel for the Complainant: It was not until the Solicitor's declaration (exhibit "1") that he made a full and detailed explanation of the circumstances, on his part, surrounding the matters in respect of which the three reports of the investigator raised complaints against him. The declaration was dated 12 March 1991, only a short time before the hearing, whereas the first report of the investigator was made on 6 October 1988. Had the Solicitor been as open and frank with the Complainant, as he was in his declaration and with this Tribunal, at a much earlier date, he could well have saved himself and others a great deal of trouble and expense. The Tribunal notes that the Complainant - the Law Society - exists, among other things, to assist and guide solicitors with their problems. It has procedures and staff in place to counsel solicitors in difficulties. Unfortunately there is a tendency for the profession to overlook this role and facility, and at times to adopt an adversary attitude towards the Society which is quite unjustified. The example provided in this matter should serve as a lesson to the profession at large. While the Tribunal is of the view that many of the above matters go more to the matter of penalty rather than to a consideration of the substantive issues, nevertheless it is also of the view that it is necessary to deal with its final findings in the light of that background. Final findings It was submitted on behalf of the Complainant that all grounds, with the exception of those withdrawn on the first day, had been established, and that whether taken individually or collectively they were sufficient to justify a finding of professional misconduct against the Solicitor. On the other hand, it was submitted on behalf of the Solicitor that to the extent to which any of the grounds had been established, whether taken individually or collectively, there was no justification for a finding of either professional misconduct or unsatisfactory professional conduct. The Tribunal does not accept either of those propositions. In considering the submissions as to professional misconduct and unsatisfactory professional conduct the Tribunal appreciates the assistance given by both Counsel. Dealing firstly with professional misconduct, it is hardly necessary to make the point that this was not a case of dishonesty, nor did it involve deceit. Counsel for the Complainant fairly conceded those two points. It certainly involved delay, and it certainly involved negligence. On the aspect of negligence, the Tribunal considered the question whether or not the conduct of the Solicitor constituted gross negligence amounting to professional misconduct. Again on behalf of the Complainant it was submitted fairly that the Solicitor was not designated to that category, and the Tribunal agrees. The Complainant relied more on a proposition that the evidence displayed a pattern of conduct which amounted to a wanton disregard of the clients' interests. However the Tribunal is not comfortably satisfied that the evidence did display such a pattern or such an attitude. The Tribunal is also not comfortably satisfied that, having regard to all the evidence, and the limited adverse findings which it has made, the Solicitor's conduct would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency. Consequently the Tribunal is not comfortably satisfied that the Solicitor is guilty of professional misconduct. However, the Tribunal notes the remarks it has already made in relation to the seriousness of four of the established grounds, and it makes the point that it regards the conduct of the Solicitor as borderline between unsatisfactory professional conduct and professional misconduct. Tribunal is comfortably satisfied that the Solicitor is guilty of unsatisfactory professional conduct. Having regard to all of the evidence, the Tribunal has no difficulty in finding that the conduct of the Solicitor fell far short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. In turning to the question of penalty the Tribunal has taken into account all the circumstances surrounding the established grounds as well as all of the matters already covered by the Tribunal in the above background. It is clear from the evidence that the conduct of the Solicitor which is the subject of the complaint was out of the ordinary and inconsistent with his normal character. To use an expression which was resorted to on a number of occasions during the hearing, during a period of great personal stress and pressure he "put his head in the sand". This, of course, does not excuse the conduct, and the Tribunal has already referred to the principle that personal misfortune is not an excuse for misconduct by a legal practitioner. However, on the question of penalty it can serve to mitigate in favour of the Solicitor. It is equally clear that the Solicitor has determined genuinely to mend his ways, and that there is unlikely to be any repetition of his unsatisfactory conduct. Having considered all relevant factors, and the particular circumstances of this case, the Tribunal is of the view that the Solicitor should be dealt with by way of reprimand. This brings the Tribunal to the question of costs. During the course of submissions, Counsel for the Solicitor referred to the wide powers now available to the Tribunal on the question of costs. He made~ passing reference to the costs of the investigation and submitted that the Solicitor should not be ordered by the Tribunal to pay such costs. Counsel for the Complainant did not make a specific submission in relation to the costs of the investigation. In the circumstances of this case the Tribunal has determined not to express a view, one way or the other, as to the costs of the investigation. The Tribunal considers that the costs of the investigation are suitably covered by section 55 of the Legal Profession Act 1987 and that the Law Society Council is adequately equipped to make that determination . As to the costs of these proceedings, the Tribunal accepts the submissions made by Counsel for the Complainant. When the Tribunal makes an adverse finding against a Solicitor, whether that adverse finding be in relation to one per cent or one hundred per cent of the grounds alleged against the Solicitor, it will be a rare case indeed in which the Solicitor is not ordered to pay the costs of the Complainant. If the conduct of a Solicitor provides reasonable cause for the Complainant to proceed against him, it is equally reasonable that the Solicitor should pay the costs of the proceedings. To provide otherwise would be to transfer the costs generated by the Solicitor's conduct from the Solicitor to the profession at large which is required to provide the financial support for the operations of the Complainant. However, in the circumstances of this particular case the Tribunal has determined to vary the usual order for costs for a special reason. That reason has been recorded at the beginning of this determination. It relates to the Complainant's unfortunate lapse in the presentation of material for consideration in evidence before this Tribunal. That lapse caused inconvenience and delay to all concerned in these proceedings, including the Solicitor, and served to prolong the proceedings longer than should have been the case. The order for costs which the Tribunal proposes to make will serve to reflect its view on the matter. The Tribunal therefore orders 1. That the Solicitor Patrick Joseph Daly be reprimanded. 2. That the Solicitor pay ninety per cent of the costs of the Complainant of these proceedings, such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court of New South Wales. If agreement cannot be reached between the Solicitor and the Complainant on the amount of costs, either party to have liberty to apply. Dated 8 May 1991. 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.