The Legal Services Tribunal of New South Wales CITATION : Graham Leonard Berry [1996] NSWLST 2 PARTIES : Graham Leonard Berry FILE NUMBER(S) : of 1995 CORAM: Mr A. Martin (Presiding Member) - Mr W. Macquarie - Dr M. Costigan CATCHWORDS: Professional Misconduct - fail to comply with s. 152 Notice :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: 17 July 1996 DATE OF JUDGMENT: 09/12/1996 LEGAL REPRESENTATIVES: Mr D. Hipsley of counsel, instructed by Gary James Still for the Council of the Law Society of New South Wales Mr J. Conomos QC, for the solicitor JUDGMENT: By an undated information filed in the Tribunal on 16 April 1996, the Council of the Law Society of New South Wales (the Society) complained that Graham Leonard Berry (the Solicitor) was guilty of professional misconduct. The grounds on which the complaint was made are: "the Legal practitioner failed to provide information and verify such information as required by the Council pursuant to Section 152(1) of the Legal Profession Act 1987 ." Particulars of the grounds of complaint were set out in an annexure to the information. They are: 1. Pursuant to Section 142(1) of the Act the Commissioner forwarded a complaint to the Council for investigation under cover of letter dated 9 February 1995. 2. A letter dated 22 February 1995 was forwarded to the legal practitioner by the Council outlining the complaint and requesting a response within 11 days. No response to that letter was received from the legal practitioner. 3. On 14 September 1995 a further letter was forwarded by the Council to the legal practitioner requesting a response within 14 days of the date of the letter. No response to that letter was received from the legal practitioner. 4. On 30 November 1995 the Committee resolved that pursuant to Section 152(1) of the Legal Profession Act 1987 the legal practitioner be required to respond to the Society's letter dated 22 February 1995 within 14 days of the date of the letter notifying him of such resolution and that he verify his response by Statutory Declaration. 5. The Council notified the legal practitioner of this requirement in a letter dated 4 December 1995. No response to that letter was received from the legal practitioner. A further letter was forwarded to the legal practitioner dated 12 January 1996 informing him of the requirement and seeking a response. No response to that letter was received from the legal practitioner. 6. On 25 January 1996 the Committee resolved that the legal practitioner be referred to the Tribunal pursuant to Section 155(2) for failure to respond to the complaint pursuant to its said resolution. 7. By letter dated 30 January 1996 the Council informed the legal practitioner of its resolution of 25 January 1996. No response was received to that letter from the legal practitioner. 8. On 7 February 1996 the Council sent a letter to the legal practitioner by certified mail informing him that the Committee had resolved to file an information in the Tribunal subject to review if the legal practitioner provided a response within a further 14 days. No response to that letter was received from the legal practitioner. 9. On 6 March 1996 the Council sent a letter by registered mail informing the legal practitioner that the Information was being prepared for filing. No response to that letter was received from the legal practitioner. Reply In his Reply dated 17 July 1996, filed in the Tribunal on the same day, which was also the date of hearing, the Solicitor accepted the correctness of paragraph I of the Particulars of Grounds of Complaint and also admitted the truth of the matters set out in paragraphs 2 to 9 inclusive of the Particulars of Grounds of Complaint. Facts The facts of this matter are sufficiently set out in the Particulars of Grounds of Complaint. The Solicitor did not dispute receipt of the letters referred to in paragraphs 2, 3, 5, 7, 8 and 9 of the Particulars. The solicitor's explanation In a statutory declaration dated 17 July 1996, filed in the Tribunal on the same date, the Solicitor gave a brief response to the complaint by Mr P. Handy, a former client of the Solicitor's but did not deal with the substance of the information before this Tribunal. The Solicitor gave evidence and was cross-examined. In summary, the Solicitor's explanation for his failure to respond to the Society's letters of 22 February 1995, 14 September 1995, 4 December 1995, 12 January 1996, 30 January 1996 and 7 March 1996 was 1. He regards the complaint against him by Mr Handy to be without substance. 2. The matter became a mental hazard for him. 3 He became depressed about his failure to respond. 4. He put his head in the sand. 5. He wanted to reply but could not bring himself to do so. 6. He put the matter to one side. The Solicitor acknowledged the seriousness of his failure to reply to the Society and that he knew that the Society would take the matter further and expressed the belief that the Society had been lenient with him. He said that he was bitterly sorry, thoroughly ashamed and was very humiliated by having to appear before this Tribunal. Comments The Society gave the Solicitor every opportunity to reply to its letters but he failed to do so. The Society was very lenient. The Solicitor's explanations indicate that he could and would not live up to his obligation despite knowing the seriousness of his failure to respond to the Society 's letters. In cross-examination the Solicitor acknowledged that in a previous matter before the Tribunal, in 1991 or 1992, his explanation for his failure to respond to phone calls was that the matter had become an absolute mental hazard and a nightmare ie. his explanation was similar to his explanation given in the present matter. In evidence the Solicitor gave his undertaking that he would, within 14 days of 17 July 1996, provide a reply to the Society's initial request, in relation to the complaint. Mr Hipsley, for the Society, stated: "Finally, I would indicated that the Law Society in lieu of the general order for penalty in relation to the matter seeks an order for a public reprimand by the Tribunal together with the cancellation of the Solicitor's practising certificate if he fails to comply with the letter of 22 February 1995 seeking that a response to the complaint within 14 days and seeking leave to apply to the Tribunal if no response if received after that date." This Tribunal, in dealing with the complaint presently before it is not prepared to make an order cancelling the Solicitor's practising certificate if he fails to respond to the complaint by Mr Handy within 14 days. If the Solicitor fails to comply with his undertaking, given to this Tribunal, then he could be the subject of further disciplinary proceedings. This Tribunal is of the opinion that, in view of the Solicitor's record and in view of the seriousness of this matter, a public reprimand is not a sufficient penalty on its own and a fine must also be paid. Determination The Solicitor is guilty of professional misconduct in that without reasonable excuse, he failed to provide information and verify such information as required by the Council of the Law Society of New South Wales, pursuant to s. 152(1) of Legal Profession Act 1987. Orders 1. The Solicitor be publicly reprimanded. 2. The Solicitor must pay a fine of $2,000 within 90 days. 3. The Solicitor must pay to the Law Society of New South Wales an amount of $4,000, as agreed, for costs. 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.