The Legal Services Tribunal of New South Wales CITATION : George Traikovitch [1997] NSWLST 7 PARTIES : George Traikovitch FILE NUMBER(S) : of 1996 CORAM: Mr F Riley (President) - Mr R. Fox - Dr B Dyster CATCHWORDS: Professional Misconduct - gross negligence and delay/gross delay/delay :- Legal Profession Act 1987 LEGISLATION CITED: Compensation to Relatives Act Workers Compensation Act CASES CITED: DATES OF HEARING: 5 February 1997. DATE OF JUDGMENT: 02/26/1997 LEGAL REPRESENTATIVES: Mr D. Hipsley Mr I. Wales JUDGMENT: A solicitor practising at Newtown received instructions in 1985 from the widow of a man recently deceased as a result of injuries suffered on his journey home from work. The solicitor was instructed to apply for probate of the deceased's will, and to take actions, on behalf of the widow and the two dependent children under the Workers Compensation Act and the Compensation to Relatives Act. While the solicitor took some action pursuant to his instructions, he had not filed an application for probate nor significantly advanced the actions commenced on behalf of the widow and children, when his instructions were terminated and he handed over his file to other solicitors instructed by the widow in 1995. The solicitor conceded his delay and neglect of his client's interests were inexcusable and sought to explain that he had not previously acted in a Compensation to Relatives Act claim of that kind and he had developed a "mental block", in relation to his client's matters. The Tribunal found that the solicitor's gross delay and neglect of his client's interests constituted professional misconduct. It ordered a fine of $1000.00, a reprimand, and that the solicitor should pay the costs of the Law Society. T he Law Society filed with the Tribunal on 7 August 1996 an Information alleging that the solicitor George Traikovitch was guilty of professional misconduct on the grounds arising from the complaint of Mrs Rezija Zukic which was lodged with the Legal Services Commissioner on 29 August 1994. The complainant Mrs Zukic is the widow of Alija Zukic who died on 28 August 1985 as a result of injuries which he received when he was struck by a motor vehicle on 18 August 1985 shortly after he had commenced his journey home from his place of employment with Austral Bronze Crane Copper Ltd at Alexandria. The deceased's wife and two children, a son Edin ("Eddie") then aged 17 years and a daughter Amelia then aged 10 years were dependant on him at the time of his death. On 28 August 1985 the deceased's son "Eddie" called on the solicitor and informed him of the circumstances of the deceased's death. The solicitor gave some preliminary advice to the son and conferred with the complainant on 30 August 1985. The solicitor has conceded that he accepted instructions from the complainant Mrs Zukic to: (a) obtain on her behalf a grant of probate of her late husband's will and assist her in the administration of his estate; (b) initiate and pursue on behalf of the complainant and her children a claim under the Workers Compensation Act against the deceased's employer; (c) commence and prosecute on behalf of the complainant and her children a claim under the Compensation to Relatives Act against the driver of the car which had inflicted the deceased's fatal injuries. The informant has claimed that the solicitor is guilty of professional misconduct on the following grounds: "1. Gross neglect by the solicitor of the application for probate in the estate of Alija (Alex) Zukic. 2. Gross neglect by the solicitor of the complainant's workers compensation claim. 3. Gross neglect by the solicitor of the complainant's common law/dependant's claim. 4. Failure by the solicitor to deposit estate funds into an interest bearing estate account, particularly given the delays in obtaining probate". The Information also gave notice of a claim for compensation by the complainant who provided particulars of that claim in a statutory declaration filed with the Tribunal and dated 29 August 1996. In his Reply filed on 22 November 1996 the solicitor admitted the grounds of the complaint. In a statutory declaration dated 26 November 1996 and filed with his Reply the solicitor gave a full and frank account of his dealings with the complainant and her son "Eddie" and of his omissions in regard to the carrying out of their instructions. The solicitor gave oral evidence supplementary to his declaration and he was cross-examined by Mr Hipsley, counsel for the Law Society. In his evidence before the Tribunal and in his declaration the solicitor conceded his gross neglect of his client's affairs and admitted he had no rational excuse to offer which would justify his default. He did however claim that his attitude to the work required on behalf of his client was influenced by a concern that she might not succeed in establishing the defendant's liability in the Compensation to Relatives Act claim (although she was insistent that it should proceed) and he also claimed that he had not previously undertaken such an action under the Compensation to Relatives Act. The facts of the matter, which are shortly noted in the following paragraphs, show that had the solicitor more diligently pursued his inquiries into the deceased's fatal accident, specifically as to the coroner's findings, he would have been better informed on the issue of liability. Ultimately, however, the solicitor conceded that his conduct in the circumstances particularised in the Information was inexcusable and at paragraph 99 of his declaration the solicitor stated – "I am very ashamed of my misconduct which was dishonourable and disgraceful and which amounted to professional misconduct". The salient facts relevant to the complaints of professional misconduct which emerge from the evidence before the Tribunal are in summary as follows: Application for probate in the estate of Alija Zukic deceased Despite the fact that the solicitor received instructions in respect of an application for probate of the late Mr Zukic's will shortly after his death on 28 August 1985 the solicitor had not filed an application for probate when in May 1995 he handed over his file to other solicitors instructed by the complainant. The solicitor in July 1987 caused to be published a notice of intention to apply for probate. He did not make enquiry regarding the whereabouts of the title deeds to two properties owned by the deceased and the complainant as joint tenants until July 1989 and, although he had received a copy of the deceased's will (at least prior to July 1987) endorsed with the name of the solicitors who had prepared it, he did not make enquiry of those solicitors in regard to the original will until August 1989. When the solicitors confirmed that they were holding the original will and would make it available upon production of evidence of death of the deceased the solicitor failed to respond to that letter and did not send to them a copy of the deceased's death certificate which he held. The solicitor in December 1985 received from the deceased's former employer a cheque for $17,198.00 representing the deceased's superannuation entitlement. The deceased in his will had provided that the whole of his estate should go to his widow if she survived him for one calendar month. The solicitor in his oral evidence before the Tribunal confirmed the statement made at paragraph 45 of his declaration to the effect that he had upon receipt of the cheque placed it in his trust account to the credit of the estate. He also confirmed (as stated in paragraph 64 of his declaration) that on or about 30 March 1987 he sent to the complainant by registered mail a trust account cheque in her favour for $17,198.00. He said that the envelope containing the cheque was incorrectly addressed but he did not advert to that fact when the letter was returned to him and he assumed that the complainant was overseas. In July 1987 he attended at his bank and opened an estate account to which he deposited the cheque. That account however was a cheque account and the money deposited to it did not bear interest. He took no steps thereafter to alter that position and did not deposit the money to an interest bearing account nor did he send it to the complainant. It was eventually dealt with by the bank as unclaimed monies in December 1994. Claims under the Compensation to Relatives Act and the Workers Compensation Act In October 1985 the solicitor conferred with Mr Menzies of counsel in regard to the prospective claims by the complainant under the Workers Compensation Act and the Compensation to Relatives Act. The solicitor at paragraph 29 of his declaration recounted the advice which he received at the conference which included the advice that the coroner would probably make a determination as to the negligence of the driver whose vehicle had caused the injuries to the deceased. Mr Menzies also advised the solicitor in regard to the entitlement of the complainant and her children under the Workers Compensation Act and advised the solicitor to write to the workers compensation insurer. The solicitor in October 1985 received from Mr Menzies a draft statement of claim under the Compensation to Relatives Act. The solicitor filed the statement of claim in the Supreme Court on 15 November 1985 and served it on the Government Insurance Office, the motor vehicle driver's insurer, on 5 December 1985. On 23 January 1986 the GIO filed a notice of appearance and statement of defence in which it denied negligence by its insured but did not allege contributory negligence. The solicitor, although he had obtained a police report and had caused some enquiries to be made by an investigator of witnesses of the accident in which the deceased had been injured, did not make enquiry to ascertain when the coroner's inquest would be held and arranged no representation for the complainant at that inquest. The solicitor claimed that he had interpreted a note on the deceased's death certificate to indicate that a finding had been made by the coroner that the driver of the vehicle which had struck the deceased was not negligent. The solicitor did not attempt to obtain a transcript of the coroner's inquest. The solicitor received from the GIO in April 1986 a request for particulars of the complainant's claim and, although the solicitor had not been provided by his client with evidence of payment of funeral and tombstone expenses, he failed to provide the other particulars requested and made no reply to the GIO's letter or other requests for particulars which followed over the subsequent years. The solicitor had still not furnished particulars of his client's claim to the Government Insurance Office or taken other action to prosecute his client's action under the Compensation to Relatives Act when he handed over his file to the new solicitors in May 1995. The solicitor had conferred with Mr Andrews of counsel with the complainant in December 1993 but that conference was conducted in the belief that the complainant would still have difficulty in establishing liability. At paragraph 98 of his declaration the solicitor stated that enquiries made by Mr Lloyd solicitor on his behalf disclosed a finding by the coroner that there was evidence "to support a charge of negligent driving". The solicitor in December 1985 gave notice to the employer of the late Mr Zukic of the complainant's claim under the Workers Compensation Act. He thereafter received a letter from the employer's insurers Manufacturers Mutual Insurance Ltd. requesting information and documentation. The solicitor sought advice from Mr Blacket of counsel in regard to that request. Mr Blacket drafted a letter to MMI and the solicitor had an affidavit, requested by the insurer, sworn by the complainant but he did not send to the insurer either the letter or the affidavit. Although he was advised by the Compensation Court that the application for compensation would be mentioned on 14 March 1988 he failed to attend and, as there was no appearance by the parties, the matter was stood out of the list. The solicitor had taken no action to advance the complainant's claim under the Workers Compensation Act when he handed over his file to the other solicitors instructed by the complainant in 1995. In his letter of 14 November 1994 to the Law Society in reply to its enquiry of him concerning the complaint the solicitor made the following statements- "The third party damages proceedings were commenced in the Supreme Court in November 1985 these are still on foot. This matter can be brought on very quickly upon particulars being supplied to the GIO and Part 33 particulars and Notice to Set Down for Trial being filed. The workers compensation proceedings were commenced in Workers Compensation Court Sydney on 7 April 1987 and was stood out of the list generally on 14 March 1988. This matter can be activated either by consent or by notice of motion, or alternatively, a new application may be made. Whichever approach is made, the matter can be brought to hearing quite quickly". Later in the same letter the solicitor claimed that for the purpose of the conduct of the proceedings it was necessary to see whether the children of the complainant and her deceased husband would achieve "higher education at university level". In cross-examination before the Tribunal the solicitor conceded that the explanation offered was not relevant to the conduct of the proceedings. The other explanations offered in the two paragraphs quoted above cannot be satisfactorily reconciled with the solicitor's continuing neglect of the action required to advance the proceedings. His continuing failure to reply to the GIO's request for particulars of his client's claim was a notable feature of that neglect. Findings The solicitor, as noted previously, conceded that his delay and neglect of his client's interests were inexcusable and he sought to explain his conduct by saying, in paragraph 98 of his declaration and in his oral evidence before the Tribunal, that he maintained only one file in respect of all of the matters being handled by him for the complainant and that he "developed a mental block and gave the matter my attention only if the complainant or her son attended my office" (declaration paragraph 98(iii)). The Tribunal makes the following findings: 1. That, in respect of each of the grounds of complaint contained in the Information, the solicitor, by reason of his delay and failure to give proper and diligent attention to the implementation of the instructions which he had accepted from or on behalf of his client Rezija Zukic, grossly neglected the interests of his client. 2. That the solicitor's delay in the handling of his client's affairs and gross neglect of his client's interests would reasonably be regarded by other solicitors of good repute and competency to be disgraceful and dishonourable and that the solicitor is, therefore, guilty of professional misconduct. Orders It was submitted by Mr Wales on behalf of the solicitor that the evidence before the Tribunal showed the solicitor to be in default only in respect of the matters being handled on behalf of the complainant; that there was no evidence that the solicitor's conduct in relation to the complainant's matters was typical of his practice and the solicitor had assured the Tribunal in his oral evidence before it that he had now established in his practice systems intended to allow him to arrange interviews by appointment and organise his work in a more orderly fashion. Mr Wales also referred to the evidence as to the financial circumstances of the solicitor and in relation to the agreement made between him and the complainant to satisfy her claim for compensation. Mr Wales argued that no additional financial penalty ought be imposed upon the solicitor other than that he should pay the costs of the Law Society. Counsel for the Law Society agreed that as there was no evidence of delinquent conduct on the part of the solicitor other than in the matters affecting the complainant the Society did not assert any lack of fitness on the part of the solicitor to remain in practice but it sought orders that the solicitor should be fined and reprimanded and that he should pay the Society's costs. Declarations by a number of solicitors and barristers testifying to the general professional competence and integrity of the solicitor were filed on his behalf and asserted that the conduct the subject of Mrs Zukic's complaint was not typical of the solicitor's professional practice as they had observed it. Mr Traikovitch's declaration of 3 February 1997 disclosed that the solicitors now acting for the complainant had been instructed to accept the solicitor's offer to settle her claim for compensation by payment of the sum of $12,075.00. The solicitor in his oral evidence said that he would be contributing about $3,000.00 to that amount in addition to the funds to be made available by LawCover on his behalf. The Tribunal was informed by counsel that agreement had been reached that the solicitor should pay the Society's costs in the sum of $7153.00 in the instalments noted in the orders which appear below. While the Tribunal has noted the solicitor's very modest earnings, as stated in paragraph 101 of his declaration of 26 November 1996, and has taken account of the submissions made by his counsel in regard to the imposition of a fine the Tribunal is of the opinion that it should, in the exercise of its fundamentally protective jurisdiction, mark its disapproval of the solicitor's misconduct by the imposition of a moderate fine in addition to the administration of a reprimand. The Tribunal has determined that no more substantial sanction is required in the absence of evidence indicating that the solicitor's defaults in the Zukic matters were typical of his practice and having regard to the Law Society submission that it did not question the solicitor's fitness to continue in practice. Accordingly the Tribunal makes the following orders. The Tribunal orders that: 1. The solicitor is fined the sum of $1,000.00. 2. The solicitor is reprimanded. 3. The solicitor must pay the costs of the Law Society in the sum of $7,153.00 by the following instalments namely: i. On or before 5 March 1997 the sum of $2,900.00; ii. On or before 5 June, 1997 the sum of $2,253.00; and iii. On or before 5 September, 1997 the sum of $2,000.00. 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.