The Legal Services Tribunal of New South Wales CITATION : Laurence John Treanor [1998] NSWLST 7 PARTIES : Laurence John Treanor FILE NUMBER(S) : of 1997 CORAM: Mr F Riley (Chairman) - Ms H Reed - Ms E Hayes CATCHWORDS: Professional Misconduct - fail to comply with s. 152 Notice :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: 31 August 1998 DATE OF JUDGMENT: 08/31/1998 LEGAL REPRESENTATIVES: Mr I Wales Mr DKL Raphael JUDGMENT: Chairman The Tribunal, at the commencement of our hearing this morning, agreed, with the consent of counsel for the solicitor/respondent, to hear the complaints of professional misconduct and unsatisfactory professional conduct referred to in the amended Information filed on 28 August. The grounds of the relevant conduct in the amended Information were expressed in the same terms as those in the original Information filed on 27 February 1998 and the particulars contained in that latter Information were the same as the original but the orders sought in the third schedule were the subject of some amendment. The Law Society sought to further amend the Information by deleting paragraphs four and five of schedule one relating to what I will describe shortly as, the Geaney complaint. While Mr Raphael, for the solicitor, said that he had understood the Informant did not intend to pursue ground two of the complaint, he agreed that the Tribunal should deal with the allegation contained in it. It transpired, however, that following some argument in relation to the admissibility of paragraphs 16 and 17 of the affidavit of 24 February 1998 of Raymond John Collins and the relevant annexures to those paragraphs, which dealt with the Geaney complaint, that those paragraphs were not read by counsel for the Informant and the Society subsequently indicated that it would withdraw ground two of the Information. That left the issue for determination by the Tribunal as that expressed in ground one of the Information. As amplified by the particulars in the Information, that ground alleged that the solicitor had, without reasonable excuse, failed to comply with the requirements of the Law Society Council, notified to the solicitor in letters of 12 March 1996 and 24 October 1996. The first of those letters referred to a complaint by a Mr G Foster, barrister, about which the Society had first written to the solicitor on 1 August 1995. The second referred to a complaint by a Mrs J Geaney, of which the solicitor was first advised in a letter from the Society of 24 April 1996, and that letter had been written after earlier letters had been misdirected. While the affidavit of Raymond John Collins contained material relating to both complaints the Tribunal's hearing is limited to determining the issue whether section 152 (4) applies to the solicitor's failure to comply with the requirements of the Law Society Council as they were conveyed to him in the letters of 12 March 1996 and 24 October 1996. The Tribunal has not engaged in any consideration of the substance of the complaints. The Tribunal is required to determine, for the purposes of a finding under section 152 (4), that the Council for the Law Society, for the purpose of investigating a complaint, has, by notice in writing served on the practitioner, required him to provide information by a date specified in the notice. The time for that compliance must be reasonable and the Tribunal must also find that the practitioner failed, without reasonable excuse, to comply. After clarifying some uncertainty in the particulars in the Information it was apparent that the notices on which the Law Society relied were those of 12 March 1996 and 24 October 1996, previously mentioned. The Tribunal accepts that the Law Society's letter to the solicitor of 5 December 1996 could not have vitiated or suspended the operation of the prior notice of 24 October 1996 and should be regarded only as a notice to the solicitor informing him of the consequences of his previous default. It is unfortunate that the annexures to Mr Collins' affidavit did not include a copy of the notice of 24 October 1996 and it was separately tendered and admitted into evidence. Mr Raphael remarked that much of the material included in Mr Collins' affidavit was hearsay. Indeed, it was made substantially on the basis of his information and belief. Despite that counsel for the solicitor has admitted, on behalf of the solicitor, and the latter in his oral evidence before the Tribunal has conceded, that he had received the Law Society's letters and that the time allowed in them for compliance was reasonable. Mr Raphael submitted that the Tribunal might still find that the explanation of the solicitor constituted a reasonable excuse for his failure to comply with the Law Society's requirements. That submission cannot be accepted by the Tribunal in view of the solicitor's frank admissions in his oral evidence that there was no "rational" excuse for his failures to respond to the Law Society. His only explanation was that at the relevant time he was experiencing financial and other difficulties in the conduct of his practice which caused him to adopt an admittedly "head in the sand" attitude to the Law Society's letters. He admitted that he had received many letters from the Law Society and he just put them aside. The correspondence from the Society extended over many months. The Tribunal, therefore, finds that the solicitor failed, without reasonable excuse, to comply with the requirements of the Law Society Council under section 152 of the Legal Profession Act, communicated to the solicitor in the Society's letters of 12 March 1996 and 24 October 1996. It follows, by reason of the operation of section 152 (4) of the Act, that the solicitor is, by reason of his default, found to be guilty of professional misconduct. The Tribunal, in view of the Law Society's advice that it wishes to withdraw ground two in the Information, makes no finding in respect of that ground. The Tribunal makes the following orders: 1. The solicitor is reprimanded. 2. The solicitor pay the Law Society's costs assessed and agreed at $8,472.20 of which half is to be paid within 30 days of the date of these orders and the balance within three months of this date. The Tribunal has given consideration to the Law Society's submissions in respect of the orders sought in paragraph 3(i) of the amended Information. It believes that the circumstances in relation to both complaints may have changed materially since the initial notices under section 152 were issued and, therefore, the Law Society Council may now be in a better position to make more specific requirements of the solicitor with less uncertainty than perhaps has been exhibited in the particulars furnished in the Information now before us. It also should be noted that at least part of the Geaney complaint has been dismissed by the Law Society as appears from the letter Mr Raphael tendered previously. It might be noted that an order of the kind sought may be questionable as an ancillary or supplementary order to the substantive orders that have, in fact, been made or that might have been appropriate in these circumstances. It remains perhaps only for me to comment that these failures by a practitioner to comply with the requirements of a professional body exercising a statutory power under the Legal Profession Act are most unfortunate as they lead to consequences such as we are presently faced with where the whole paraphernalia of an adversarial hearing before this Tribunal is necessary to resolve what are basically very simple issues that should never have been allowed to get so far. That fact, I believe, has been conceded by the solicitor's counsel but it, nonetheless, is worth remarking upon. I should also say that the Tribunal, as it was apparent I think from the beginning, had some difficulty in finding its way through the particulars that were pleaded with the Information and some of the correspondence. Mr Wales did make the concession earlier that annexures that had been copied into Mr Collins' affidavit were unnecessarily photocopied in triplicate. It may be that some earlier means of interception of these matters might be worth the consideration of the Law Society so that it is unnecessary to pursue some of these remedies to the full extent. Bearing in mind that the Act itself does allow the Society to take quite significant action in the suspension or cancellation of a practising certificate, where a solicitor is failing to make a proper response to enquiries in relation to a complaint, perhaps those matters might be given some consideration in the future. Having in mind some of those matters the Tribunal was minded to reconsider the order for costs but in view of the fact that the parties have agreed on those costs the Tribunal is prepared to make the order in the terms in which it has but it did take account of the costs order in determining that it would not impose a fine, in addition to the costs order, on the solicitor. 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