The Legal Services Tribunal of New South Wales CITATION : Jeffrey Stuart Dunn [1995] NSWLST 7 PARTIES : Jeffrey Stuart Dunn FILE NUMBER(S) : of 1994 CORAM: Mr A. Martin (Presiding Member) - Mr W. Macquarie - Vice Admiral I Knox Professional Misconduct - gross negligence and delay/gross delay/delay :- Competence and diligence CATCHWORDS: Delay Failure to communicate properly with the solicitor's client s.135 Legal Profession Act 1987 LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 09/21/1995 Mr. I. Wales instructed by Mr. G.J. Still for the Law Society of New South Wales. Mr.B. Collins qc with Mr.M. Campbell instructed by Timmins & Partners for the solicitor. LEGAL REPRESENTATIVES: Mr. J. Darvall, instructed by Photios Vouroudis & Co. for the complainant in respect of compensation (3rd day only) JUDGMENT: Allegations of gross negligence, delay and failure to communicate properly with the client over the solicitor's 7 1/2 year carriage of the civil matter. It was the Society's view that the combination of circumstances in the case tipped the scale in favour of professional misconduct. The Tribunal's opinion was that the totality of the solicitor's conduct did not amount to professional misconduct. The solicitor's conduct before 1 January 1988 could not be said to be disgraceful or dishonourable and his conduct after that date did not fall within the definition of s 127 of the Legal Professional Act 1987. The Tribunal did not find that the solicitor's conduct amounted to unsatisfactory conduct. The Tribunal expressed the view that the solicitor might have done better. Complaint dismissed. No order as to costs. The Council of the Law Society of New South Wales (the Society) filed a Complaint under S.135 Legal Profession Act 1987 against Jeffrey Stuart Dunn (the solicitor) on 30 June 1994. The Complaint was dealt with by this Tribunal under the Savings and Transitional Provisions of the Legal Profession Regulation 1994. The Complaint did not allege professional misconduct or unsatisfactory professional conduct by the solicitor but Mr. Wales, counsel for the Society informed the Tribunal that: "The matters complained of are a combination of matters about which it is perhaps fair to say the view is at least open that no single instance of misconduct is, in itself, professional misconduct. It is really the combination of circumstances in this case which we say tips the scales in favour of professional misconduct as opposed to merely – and I use the word 'merely' loosely – unsatisfactory professional conduct." (P7(20-27) of transcript) The particulars of the complaint are - 1. Gross negligence 2. A substantial and consistent failure to reach reasonable standards of competence and diligence. 3. Delay. 4. Failure to communicate properly with the solicitor's client. Further particulars of the complaint were set out in the complaint document and we will deal with these later. Relevant facts 20th September 1983 Mr. Haralambos Theoharopoulos (the client) was apprehended by security officers after he had left a Waltons store in Sydney. The client was accused of stealing a pair of underpants from Waltons Limited (Waltons). After the client produced a receipt which took him some time to find, he was released. The client was detained for 20-30 minutes. The client instructed the solicitor's firm to act for him in connection with what the client claimed to be false arrest and assault. - August 1984 The solicitor took over the conduct of the matter from his partner, Mr. Cooney. - 5 September 1984 A plaint and ordinary summons commencing action against Waltons was filed by the solicitor in the Court of Petty Sessions at Wynyard House, Sydney. - 16 April 1986 The matter came on for hearing. Counsel had been instructed by the solicitor to appear for the client and counsel appeared for Waltons. The magistrate informed the parties that he did not have jurisdiction to hear the matter and at the request of counsel for the client, the plaintiff was non-suited. None of the legal representatives was aware of s19 of the Civil Claims Act that prevented the magistrate dealing with the matter. - 28 August 1986 The client paid $300.00 to the solicitor's firm on account of costs and disbursements in connection with proposed District Court proceedings against Waltons. - 2 September The solicitor, on behalf of the client, filed an ordinary statement of claim against Waltons in the District Court claiming damages for false imprisonment and assault. - October 1986 A defence was filed on behalf of Waltons - 20 February 1987 A praecipe for trial was filed. - By 1 January 1988 The matter was awaiting a call-over date. Answers to the defendant's request for further and better particulars had been given but medical reports had not been served on the defendant and particulars under Part 12 Rule 4A of the District Court Act had not been filed. - 9 March 1990 The solicitor received a notice of call-over listing. - 3 September 1990 At a call-over on this date counsel, instructed by the solicitor appeared and the matter was listed for a pre trial conference on 8 November 1990. - 17 September 1990 The solicitor wrote to the client reporting and requesting the name of the doctor that the client had consulted after the incident at Waltons. There had been some confusion in the solicitor's mind about the identity of the doctor. - 21 September 1990 The solicitor wrote to the doctor for a medical report. - 9 October 1990 The solicitor received a letter from Blake Dawson Waldron (Waltons' solicitors) stating that they had not received medical reports and contending that the matter was not ready for trial and that they would oppose any application by the plaintiff for the fixing of a date for trial. - 12 October 1990 The client's doctor contacted the solicitor's office requesting $60.00 for his report. - 12 October 1990 The solicitor wrote to the client requesting $60.00 to pay the doctor so that the report could be obtained. - 8 November 1990 The pre-trial conference was adjourned to 22 January 1991. Counsel instructed by the solicitor appeared for the client. Waltons' solicitor quite correctly raised the fact that the medical reports had not been served and that Part 12 Rule 4A particulars had not been served and sought costs of the day. On that day a copy of a proposed amended statement of claim was given to Waltons' solicitors. The solicitor had arranged for the client to be present and apparently Mr. Beale of counsel, who had been briefed to attend, was unable to attend and he arranged for Mr. Lee of counsel to attend. Mr. Lee did not meet up with the client. The client and an interpreter waited at the Court until lunchtime. The solicitor did not attend and did not suggest to the client what he should do about meeting counsel on the day. That afternoon the client and his interpreter who accompanied him to the Court went to the solicitor's office where a conversation took place. - 19 November 1990 The solicitor wrote to the client informing the client that the pre-trial conference was to take place on 22 January 1991 and noting that the client would attend at his doctor's surgery to pay the report fee so that the report could be obtained. The solicitor received the medical report on this day. - 10 January 1991 The solicitor served the medical report on Waltons' solicitors. At that time an amended statement of claim was sent to Waltons' solicitor for endorsement of consent to filing. The solicitor wrote to the client requesting details of the names of other medical practitioners who had been referred to in the medical report that the solicitor had received. - 16 January 1991 Waltons' solicitors informed the solicitor that they had arranged for the pre-trial conference listed on 22 January 1991 to be stood over to 14 March 1991. - 20 February 1991 The solicitor wrote to the client about the adjournment of the pre-trial conference to 14 March 1991 and a conference with Mr. Beale on 13 March 1991. - 14 March 1991 The pre-trial conference was adjourned to 1 May 1991 because of settlement negotiations. - 19 March 1991 The solicitor wrote to the Walton's solicitors referring to discussions and confirming that the matter had been adjourned to 1 May 1991 and confirming that instructions were being obtained about a settlement proposal. - 1 May 1991 The pre-trial conference was stood over generally to be restored on 7 days notice. - 27 May 1991 A letter was sent by the solicitor to the client about settlement offer and problems in recovering money from Waltons and informing the client that Mr Beale was considering an offer and might want to have a further conference. - 8 July 1991 The solicitor was requested by letter from the client to forward all papers and documents to Brock Partners. - 30 October 1991 Brock Partners wrote to the solicitor stating that they had written on four occasions without receiving a reply. They indicated that the matter would be referred to the Law Society unless they had received a reply within 7 days. - 11 November 1991 The solicitor wrote to Brock Partners apologising for the delay and informing them that he was waiting on counsel to forward his account. - January 1992 The solicitor received a copy of Mr. Beale's previous account. It seems that Mr. Beale was not seeking any further fees, apart from a memo that he had previously sent. - 16 January 1992 The solicitor wrote to Brock Partners sending the file and an assessment of costs, including counsel's fees. Some of these facts will be referred to later in this determination. The Society provided further particulars upon which it sought to rely to prove each of the four grounds of complaint. We will deal with each of the further particulars. 1. Gross negligence 2. A substantial failure to reach reasonable standards of competence and diligence. The Society relies on the same thirteen further particulars in respect of these two complaints namely – (i) The solicitor commenced and prosecuted proceedings on behalf of the client for false arrest and false imprisonment in the Local Court. The Local Court proceedings were stood over generally on 10 December 1984. The solicitor took no steps to have the matter restored to a call-over list until September 1985. The solicitor caused an ordinary summons to be issued out of the Court of Petty Sessions (as it then was) at Wynyard House on 5 September 1984. The particulars of the summons were - "The Plaintiff claims damages for that the Defendant by its servants or agents did on the 20th September 1983 assault the Plaintiff and imprisoned him whereby the Plaintiff suffered great pain of body and mind and was injured in his credit and circumstances and incurred expenses in obtaining his liberation for the said imprisonment and as a result of his imprisonment." The summons was issued almost 12 months after the solicitor's firm had received instructions to act. No complaint was made about the delay in issuing the summons. The solicitor said in evidence that he took over the matter from his former partner, Mr. Cooney in about August 1984. The summons showed the client's name as Harry Poulos and the address was shown as 33 Bennett Street, Campsie. The address on the summons and on a number of subsequent letters sent to the client was wrong. The client had never lived at 33 Bennett Street, Campsie. At the time of the issue of the summons the client lived at 33 Burns Street, Campsie. He moved to an address at 6/13 Drummond Street, Belmore some time by 1990. The return date for the summons was 22 October 1984. The client seemed to think that the matter should have been heard on the return date. It is well known to this Tribunal that matters of this type are not dealt with on the return date but on that date are adjourned to another date for mention or hearing. The matter was stood over on 22 October 1984 to 10 December 1984. No evidence was given or complaint made about what the solicitor did to prepare the case for possible hearing on 10 December 1984. On 29 November 1984 Waltons' solicitors requested further and better particulars. On 6 December 1984 the solicitor wrote to the client at 33 Bennett Street, Campsie requesting him to make an appointment to call to furnish further particulars. The letter was subsequently returned to sender but it was not known when it was returned to the solicitor as the sender. However the envelope was subsequently found in the solicitor's file. According the solicitor, when the matter was before the Court on 10 December Waltons' solicitors mentioned the matter for both parties. In a letter of 10 December 1984 by Waltons' solicitors to the solicitor's firm, Waltons' solicitors indicated that the Court had stood the matter over generally despite the fact that the two solicitors had agreed earlier that the Court would be requested to stand the matter over until late January or early February 1985, for further mention. At that stage the solicitor had either not heard from the client or had his letter of 6 December 1984 returned unclaimed. The solicitor does not appear to have done anything about tracking down his client until he wrote to the client again on 10 July 1985 requesting the client to make an appointment to call to discuss the matter as Mr. Dennis Cooney was no longer with the firm. The letter of 10 July 1985 was sent to 33 Bennett Street, Campsie but there was no evidence that this letter was returned to the sender. By 23 September 1985 contact had been made between the solicitor and the client because on that date the solicitor sent a letter to the Registrar of the Court requesting that the matter be restored to the list. On 11 November 1985 the solicitor provided Waltons' solicitors with further and better particulars. It seems that the matter was mentioned on 11 November 1985 when a hearing date was set for 16 April 1986. On 12 November 1985 the solicitor wrote to the client, again to the wrong address 33 Bennett Street Campsie, concerning the hearing on 16 April 1986. When the matter came on for hearing on 16 April 1986, the solicitor had briefed counsel to appear and the client and his witnesses were present. Waltons has represented by counsel and although no evidence was given about it, we anticipate that the defendant's witnesses were also present. The presiding magistrate drew the attention of the counsel for each party that under s.16 of the Civil Claims Act he did not have jurisdiction to hear matters of wrongful arrest and false imprisonment and the client, as plaintiff, was non suited at the request of counsel for the client. Mr. Wales, for the Society, said in his opening address - "I do not suggest for a moment that the solicitor's ignorance of that particular provision was itself misconduct or even unsatisfactory professional conduct". (P7(46-49) of the transcript). This part of the complaint is that the solicitor caused delay between 10 December 1984 when the matter was stood over generally until 23 September 1985 when the solicitor requested the Registrar to restore the matter to the list. In the time complained of, which is about 10 months, the solicitor had written 2 letters to the client, albeit to the wrong address and one of them had been returned to sender and Mr. Cooney, the solicitor's partner who had originally taken instructions had left the firm. There is no evidence that it was the solicitor's fault that the letters were sent to the wrong address but on the other hand there was no evidence that the solicitor tried to track down his client when his letter of 6 December 1984, to the client, was returned unclaimed. The client does not appear to have made any attempt to contact the solicitor during the time complained of. The solicitor said in his statutory declaration that he finally received a response from the client in September 1985 after which he requested the Registrar to restore the matter to the list. All of this occurred before 1 January 1988 when the Legal Profession Act 1987 commenced. Accordingly, at the time there was no offence of unsatisfactory professional conduct and we find that under the circumstances the delay did not, amount to professional misconduct. (ii) The solicitor failed until 11 November 1985 to provide particulars sought by the defendant's solicitors by letter of 29 November 1984. The request for further and better particulars is dated 29 November 1984. After receipt of the letter, the solicitor wrote to the client, at the wrong address, on 6 December 1984 requesting the client to call to furnish further particulars. As indicated in our comments about (i) the client did not contact the solicitor until September 1985 and it appears obvious that answers were provided at that time because by letter of 12 November 1985 further and better particulars were provided. Again this occurred before the commencement of the Legal Profession Act 1987 and we find that under the circumstances the solicitor's conduct in not providing further and better particulars until he did, did not amount to professional misconduct. (iii) The solicitor failed until 14 April 1986 to provide particulars sought by the defendant's solicitor by letter of 26 November 1985. By their letter of 26 November 1985 Waltons' solicitors requested details of the client's treatment by Dr. J. Tsiniolis and expenses incurred. Dr. Tsiniolis had been mentioned in clause 13 of further and better particulars provided by the solicitor to Waltons' solicitors by letter dated 11 November 1985. It is clear that the solicitor had not provided Waltons' solicitors with details of the date or dates on which the client received the treatment and confirmation of the expenses incurred by the client, before the hearing date in the Court of Petty Sessions. By letter dated 14 April 1986 the solicitor informed Waltons' solicitors that the treating doctor was Dr. Tsioutis. This was incorrect. The solicitor says in his statutory declaration of 5 October 1994 that this arose as a consequence of a conversation with Mr. Cooney, his former partner. When the solicitor obtained instructions from the client, in September 1985, to provided further and better particulars he appears to have been instructed that the doctor was Dr. J. Tsiniolis. There is no evidence that at that stage a letter was sent to that doctor or any attempt made to get in contact with him. It subsequently turned out that the doctor's name is spelt Tziniolis. The solicitor seems to have overlooked the request by Waltons' solicitors for details about of treatment by Tziniolis and expenses incurred and also appears to have overlooked the need for medical evidence to be provided at the hearing, which was anticipated to take place in the Court of Petty Sessions on 16 April 1986. However as it turned out that omission had no bearing on the outcome. Again this occurred before the commencement of the Legal Profession Act 1987 and we find that under the circumstances the solicitor's conduct in not providing the particulars sought by Walton's solicitors, did not amount to professional misconduct. (iv) The Local Court proceedings having been struck out on 16 April 1986, the solicitor delayed commencing proceedings in the District Court until 2 September 1986. The solicitor says that he asked the client for $300.00 on account of expenses in connection with the District Court proceedings and that this was paid on 27 August 1986. The solicitor produced a trust account receipt for payment of $300.00 on that date and backed it up with a copy of a trust account ledger which showed that the amount of $300.00 had been paid on that date. In clause 4 and 5 of his statutory declaration the client states - 4. "Immediately after the Local Court case concluded on 16 April 1986, I had a discussion with Mr Dunn. In the course of that discussion Mr. Dunn said to me: 'We must make a new application to the other court. This court was not the right court for this case to be heard. To start a new case I need $300.00 for the expenses of the new court case'". "I cannot precisely recall whether the figure he mentioned was exactly $300.00 or some figure starting with $300.00." 5. "I provided the amount asked for immediately or within a day or so. I think it was most probably the day after I was asked for the money." If the solicitor asked for $300.00 on 16 April 1986, as the client thinks he did, the client did not pay it until 27 August 1986. The solicitor did not specifically state when he asked for the money. It was not unreasonable for the solicitor to delay instituting the District Court proceedings until he had received $300.00 on account of costs. We are satisfied that the $300.00 was paid on 27 August 1986 and we are not satisfied that there is any evidence to suggest that the solicitor delayed in requesting payment of the amount. A statement of claim was issued on 2 September 1986. The delay in issuing the statement of claim, after moneys had been received on account could not amount to professional misconduct. Again this occurred before the commencement of the Legal Profession Act 1987 and we find that under the circumstances the solicitor's conduct in not commencing proceedings in the District Court until he did, did not amount to professional misconduct. (v) The solicitor did not brief Counsel to advise in relation to his client's claim until on or about 4 September 1990. The District Court statement of claim was issued on 2 September 1986. A praecipe for trial was filed on 20 February 1987. At that time the case was not ready for trial in that the solicitor had not obtained a doctor's report and had not filed particulars under Rule 12 Part 4A of the District Court Rules. In cross examination Mr. Wales put this question to the solicitor - "Now, would it be fair to say that it has been your experience that the plaintiff's solicitor often file a praecipe and get the medical report sorted out while the matter is waiting in the queue in the general list?" The solicitor's answer to the question was - "And particulars also, yes." (P88 (13-21) of transcript). Mr S.J. O'Halloran, a solicitor of many years experience and who we accept as an expert in personal injury litigation, called to give evidence for the solicitor, was asked this question by Mr. Collins QC, counsel for the solicitor - "And I think you said too that solicitors might commonly file the praecipe before the matter was truly ready?" To which Mr. O'Halloran answered - "Yes." This further question was put to Mr. O'Halloran by Mr. Collins - "Knowing they had some substantial time to get the matter ready before trial in the waiting period?" To which Mr. O'Halloran replied - "That is right." (P51 (8-11) of transcript). After filing of the praecipe for trial everybody waited for the District Court to get around to listing the matter for call-over. Mr. O'Halloran stated in his statutory declaration dated 21 October 1994 that he was aware that at the time of commencement of proceedings there was considerable delay in the District court list generally. Eventually the case was listed for call -over on 3 September 1990 which was 4 years after the statement of claim was issued and about 3½ years after the praecipe for trial had been filed. The solicitor was informed that the matter was listed for call-over by a notice of call-over listing dated 28/2/1990, received by the solicitor on 9 March 1990. By memo dated 7 September 1990 Mr. V.B. Davoren, of Counsel, informed the solicitor - "I confirm by appearance at the Call-Over on Monday 3rd September 1990 in relation to the above matter in which Mr. Beale of these Chambers is briefed. There was no appearance for the Defendant. The Registrar listed the matter for a pre-trial conference on 8 November 1990 at 9.30 a.m., Room 2. I have enclosed my fee note herewith. Thank you for your instructions in this matter." There was no evidence of the date of delivery of a brief to Mr. Beale. The complaint alleges that it was on the day after the call-over and Mr. Beale deposed to having been instructed in 1990. We are of the opinion that the brief would have been delivered some time before the call-over. By 17 October 1990 Mr. Beale had provided the solicitor with a memorandum of advice and a draft of an amended statement of claim. We find that the failure to brief counsel until about the time of the call-over, was not unsatisfactory professional conduct. The fact is that counsel did appear at the call-over and achieved what he was there for, i.e., to have a date for a pre-trial conference set. The date of the pre-trial conference was 8 November 1990. (vi) Notwithstanding that the proceedings were ones to which Part 12 Rule 4A of the District Court Rules applied, the solicitor did not, prior to the first call-over of the proceedings on 3 September 1990 provide the defendant with the particulars required by that Rule. The solicitor contended that he had concluded that because the proceedings were substantially associated with false imprisonment particulars under Part 12 Rule 4A of the District Court Rules were not required. In Mr. O'Halloran's declaration he pointed out that the relevant provisions of Part 12 Rule 4A of the District Court Rules require particulars to be filed in a claim for damages for personal injury. While Mr. O'Halloran considered that it was debatable as to whether particulars should be filed it was his view that in light of the allegations made by the plaintiff particulars should have been filed. The solicitor claims that if particulars did have to be filed then it was an error of judgment on his part and we accept that this was the case and the omission to file the particulars was not unsatisfactory professional conduct. (vii) The solicitor neglected after 3 September 1990 to provide proper particulars under Part 12 Rule 4A causing a number of adjournments of pre-trial conferences in the matter. Following the listing of the matter for pre-trial conference on 8 November 1990 the solicitor informed Waltons' solicitor of the date, by letter of 17 September 1990. On 17 September 1990 the solicitor wrote to the client informing him of the pre-trial conference to be held on 8 November 1990 and requesting him to attend. The solicitor asked the client for the name of his doctor because he could not find a Dr. Tsiniolis in the telephone book. The client must have responded promptly because by 21 September 1990 the solicitor wrote to Dr. J. Tziniolis at 142 Livingstone Road, Marrickville for a report. By a letter received by the solicitor on 9 October 1990, Waltons' solicitors reminded the solicitor that they had not received a copy of the medical report and informed the solicitor that it was obvious that the matter was not ready for trial and that they would oppose any application by the plaintiff to fix a date for trial. On 12 October 1990 Dr. Tziniolis contacted the solicitor's office and requested $60.00 for his report. On 12 October 1990 the solicitor wrote to the client requesting $60.00 to pay for the doctor's report. The doctor's report was received by the solicitor on 19 November 1990. A receipt by Dr. J. Tziniolis dated 9 November 1990 for $60.00 for the report was tendered in evidence. It appears that the client attended at the doctor's surgery, the day after the first pre-trial conference to pay the fee. The report by Dr. Tziniolis was not available at the pre-trial conference on 8 November 1990. The reason why the conference was adjourned was the solicitor's failure to file Part 12 Rule 4A particulars and because the medical report was not available. Mr. Lee of Counsel appeared at the pre-trial conference on 8 November 1990. It appears that settlement was discussed at the conference and a copy of the proposed amended statement of claim was given to whoever appeared for Waltons. the pre-trial conference was adjourned until 22 January 1991. On 19 November 1990 the solicitor wrote to the client reporting the adjournment and noting that the client would attend at Dr. Tziniolis' surgery to pay the report fee so that the medical report could be obtained. As indicated earlier the fee for the doctor's report was paid on 9 November 1990. On 10 January 1991 the solicitor served the medical report on Waltons' solicitors. On the same day, 10 January 1991, the solicitor forwarded copies of letters of 14 November and 5 December 1990 received from Waltons' solicitors, to Mr. Beale, of counsel, together with a copy of the doctor's report and confirmed that a copy of the report had been served and that a pre-trial conference was to take place on 22 January 1991 and noting that Mr. Beale would attend. Although the question of Part 12 Rule 4A particulars had been referred to in the letter of 14 November 1990 from Waltons' solicitors to the solicitor, Mr Beale did not make any comment about the filing of particulars. By letter of 16 January 1991 Waltons' solicitors informed the solicitor that they had arranged for the pre-trial conference due for 22 January 1991 to be stood over to 14 March 1990 so that outstanding matters could be resolved. One of the outstanding matters was the filing of Part 12 rule 4A particulars but there were also other outstanding matters relating to the filing of the amended statement of claim. A conference was held with Mr. Beale on 13 March 1991. The pre-trial conference listed for 14 March 1991 was adjourned to 1 May 1991, following discussions between the solicitor and Waltons' solicitors. On 19 March 1991 the solicitor wrote to Waltons' solicitors referring to the adjournment and confirming that he was obtaining instructions from the client about the settlement proposal that had been put. It could not be said that this adjournment was due to the failure of the solicitor to file Part 12 Rule 4A particulars. The pre-trial conference listed for 1 May 1991 was stood over generally with liberty to restore on 7 days notice. The solicitor declared that at that stage he had little communication with the client. In summary pre-trial conferences were listed for 8 November 1990, 22 January 1991, 14 March 1991 and each of them was adjourned. At the one listed for 1 May 1991 the matter was stood over generally as we have already indicated. The pre-trial conference for 8 November 1990 was adjourned because the medical report had not been received. The solicitor had requested the report on 21 November and on 12 October 1990 had written to the client requesting $60.00 to pay for the report. The client did not pay for the report until the day after this pre-trial conference. The pre-trial conference for 22 January 1991 was adjourned at the request of Waltons' solicitors, apparently without the knowledge of the solicitor because of outstanding matters one of which was the failure to file particulars. The pre-trial conference listed for 14 March 1991 was adjourned so that the solicitor could get instructions about settlement. The solicitor contended that Part 12 Rule 4A particulars were not required but at no time did he make this contention known to Blake Dawson Waldron. That issue might have been argued at the pre-trial conference that was to be held on 22 January 1991. The particulars could not have been provided before the receipt of the doctor's report and after that only one pre-trial conference, i.e., the one listed for 22 January 1991 was adjourned because of outstanding matters including Part 12 rule 4A particulars and that adjournment seems to have been arranged by Waltons' solicitors before the hearing date and without reference to the solicitor. Although the solicitor could have done better by filing particulars or letting Waltons' solicitors know that he did not think they were required, we find that his omission to file particulars did not prejudice the client and we find that his omission to file particulars did not amount to unsatisfactory professional conduct. (viii) The solicitor failed to obtain on good time a report from Dr. Tziniolis, his client's treating doctor. There was some confusion about the identity and address of the doctor. The solicitor said in his statutory declaration of 5 October 1994 that at one time he believed that the doctor was Dr. Tsioutis but that this was an error brought about by a conversation with his partner. He then thought that the doctor was Dr. Tsiniolis but a doctor by that name could not be found in the telephone book by the solicitor's secretary and no serious attempt seems to have been made to ascertain the true identity of the doctor until after the call-over on 3 September 1990. After the matter was mentioned at the call-over on 3 September 1990 and before the pre-trial conference on 8 November 1990 the solicitor set about trying to find out the identity of the doctor. In his statutory declaration the solicitor says that at a conference with Mr. Beale the doctor's business card was produced by the client. This does not appear to be correct because on 17 September 1990 the solicitor wrote to the client requesting advice in relation to the doctor who he had consulted immediately after the incident. In examination in chief the solicitor was asked the question- "Was that a card that Mr. Theoharopoulos gave you when he came into your office some time after you wrote to him on 17 September 1990?" To which the solicitor replied - "Yes." (P60 (11-12) of transcript). The card referred to was the doctor's card found in the solicitor's file. The solicitor wrote to the doctor on 21 September 1990 requesting a report. On 12 October 1990 the doctor left a message for the solicitor that he wanted $60.00 for his report. On 12 October 1990 the solicitor wrote to the client requesting $60.00 for the doctor's report. The client did not provide the money as requested. If he had promptly paid the $60.00 then the medical report could have been available for service on the defendant's solicitors before the pre-trial conference on 8 November 1990. Undoubtedly the solicitor could have sought the medical report much earlier. The solicitor had received a notice of call-over listing on 9 March 1990 and he could have immediately done what was necessary to obtain the medical report and done whatever else he had to so that the matter was ready for trial by the time of the call-over. He did not. The absence of the medical report for service before the call-over on 3 September 1990 did not prevent the Registrar setting the matter down for a pre-trial conference on 8 November 1990, as if the matter was fully ready for trial. The delay in getting the medical report by the first of the pre-trial conferences on 8 November 1990 was a contributing factor to the pre-trial conference being adjourned. Perhaps the solicitor could have done more between 12 October 1990, when he wrote to the client for $60.00 to pay for the doctor's report and 8 November 1990. However the client must accept some blame for not doing what he had been asked to do and for not paying the doctor until 9 November 1990, the day after the first pre-trial conference. The doctor's report was eventually obtained on 19 November 1990 and served on Waltons' solicitors by letter dated 10 January 1991, i.e., before the call-over listed for 22 January 1991. Although the solicitor could have done better in obtaining the doctor's report earlier, we are not satisfied that his failure to do so amounted to unsatisfactory professional conduct. (ix) The solicitor received a report from Dr. Tziniolis on or about 19 November 1990 but did not serve it upon the defendant's solicitors until on or about 10 January 1991. We are not satisfied that the delay in serving the medical report, under the circumstances of this matter amounted to unsatisfactory professional conduct. (x) The solicitor failed to respond to correspondence from Brock Partners, the client's new solicitors. By letter dated 8 July 1991 the client instructed the solicitor to forward all papers and documents held by the client to solicitors Brock Partners. By letter of 16 January 1992 the solicitor sent the file to Brock Partners, together with an assessment of costs and disbursements. The solicitor did not require payment of costs and disbursements before making the file available but did request Brock Partners to protect their interests in relation to costs and disbursements, particularly counsel's fees that had been incurred. The solicitor explained the reason for delay in submitting the file as being brought about by the delay in obtaining a final account from Mr. Beale, for additional work that Mr. Beale had done after 17 October 1990. Eventually Mr. Beale did not charge any more and at the request of the solicitor provided a copy of a previous account for $425.00 as his final account. We accept that Brock Partners wrote a number of letters to the solicitor without reply until 11 November 1991 when an explanation was given. Although the solicitor did not promptly reply to letters from Brock Partners we find that this did not amount to unsatisfactory professional conduct. (xi) The solicitor failed to inform the client that Counsel, and not the solicitor would attend at the pre-trial conference on 8 November 1990, with the result that the client appeared at the Court on that date, with an interpreter and formed the belief that no-one had appeared on his behalf. On 17 September 1990 the solicitor wrote to the client informing him that the pre-trial conference was to be held before the Registrar at 9.30 a.m. at the District Court offices 225 Macquarie Street, Sydney. Apparently Mr. Beale, of counsel, had been briefed to attend. Mr Beale was unable to attend and Mr Robert Lee, of counsel, did attend. The matter was adjourned to 22 January 1991. The solicitor did not attend and we find this unexceptional. Unfortunately Mr. Lee appears to have made no attempt to have the client called or to otherwise make contact with him. Equally unfortunately the solicitor did not inform the client that he would not be at the pre-trial conference and to make contact with Mr. Beale. It would have been better if he had. Mr. Lee should have had the client called. Unfortunately the end result was that the client and an interpreter waited at the Court until lunch time. The client claims that he informed the belief that no-one had appeared for him. While the client might have formed this belief, his belief was wrong. The client and his interpreter went to the solicitors office and saw the solicitor that afternoon at about 5.30 p.m. The client said in his statutory declaration of 5 August 1994 that the solicitor was rude and said to him "Go away, I will send you a letter making an appointment with a barrister, Phillip Beale. he is opposite our office." We do not consider that anything hangs on what was said that afternoon. We are satisfied that on that day there was an unfortunate misunderstanding that resulted in Mr. Lee and the client not meeting at the Court. This should not have happened, but it did. The solicitor and Mr. Lee must share the blame but whatever the solicitor might have omitted to do was not unsatisfactory professional conduct. (xii) The solicitor failed to respond to correspondence from Brock Partners, the client's solicitors. This is a repeat of item (x). (xiii) The solicitor, although instructed in July 1991 to transfer the file to the client's new solicitors, did not do so until January 1992. We have already indicated in our determination concerning item (x) that what the solicitor did was not unsatisfactory professional conduct. 3. Delay (i) The complainant repeats the matters set out in paragraph 1(i)-(ix) and 1(xiii) above. We refer to our comments about items (i)-(ix) and (xiii) in respect of the complaints of "gross negligence" and "a substantial and consistent failure to reach reasonable standards of competence and diligence". 4. Failure to communicate properly with the solicitor's client (i) Throughout the period of seven years nine months (October 1983 to July 1991) that the client instructed the solicitor the client telephoned the solicitors office every 3 months approximately enquire about progress. (ii) On many occasions the client would leave a message with the solicitor's staff for the solicitor to telephone the client. It was very unusual for the solicitor to do so. We observe that Mr. Theoharopoulos made no reference to this aspect of the complaint in his statutory declaration of 19 August 1994. He did not make any reference to this aspect of the complaint in his complaint form that he signed on 25 August 1992 and gave to the Society. We observe a series of questions and answers in cross examination of Mr. Theoharopoulos in these terms - "Q. Did you ever make telephone calls to Mr. Dunn? A. Every second week. Q. And you would call in to Mr. Dunn's office from time to time just to ask him how the case was going, wouldn't you? A. Yes (in English). Q. And you would call in without making an appointment first? A. On occasions, sometimes I would make an appointment and sometimes, because I had another case with a solicitor in the same building, I would just drop in. Q. You dropped in on quite a number of occasions, didn't you? A. Yes. Q. And your relative, whose nickname is Tass, used to ring Mr. Dunn on your behalf as well, didn't he? A. Yes Q. And so by Tass ringing from time to time and by you dropping in from time to time ---? A. Yes.(in English). Q. You were always able to ask Mr. Dunn what was happening and how the case was going? A. On three different occasions he gave me three definite final dates by which my case would be finalised and on all these three occasions nothing happened. Q. I understand that. My question was a different one: You dropped in from time to time without making appointments and you got your relative, Tass to ask Mr. Dunn, whenever you wished him to, how the case was going didn't you? A. Yes." (P26 (41-53) and P27 (1-24) of transcript). (iii) The solicitor corresponded with the client on only four occasions between 6 December 1984 and 17 September 1990, that is on those two dates and on 5 September 1986 and 11 April 1988. The evidence before the tribunal indicates that between August 1984, when the solicitor took over the conduct of the matter from Mr. Cooney until 8 July 1991 when Mr Theoharopoulos wrote to the solicitor instructing him to forward papers and documents to Brock Partners the solicitor wrote 14 letters to the client. The letters were – 6 December 1984 to Mr. H. Poulos 33 Bennett Street,Campsie requesting the client to make an appointment to furnish further particulars. Note: This letter was returned to sender. 10 July 1984 to Mr. H. Poulos 33 Bennett Street, Campsie requesting the client to make an appointment to discuss the matter because Mr. Cooney was no longer with the firm. 12 November 1985 to Mr. H. Theoharopoulos 33 Bennett Street, Campsie concerning the Lower Court hearing. 5 September 1986 to Mr. H. Theoharopoulos 33 Bennett Street, Campsie concerning issuing of District Court statement of claim and about the discontinuance of the Lower Court proceedings and requesting payment of $316.60 to pay Waltons legal costs. Note: This letter was also returned to sender. 2 March 1987 to Mr. H. Theoharopoulos (sic) 33 Bennett Street, Campsie referring to conference and advising of the filing of the documents in the District Court and requesting reimbursement of filing fees. 4 June 1987 to Mr. H. Theoharopoulos 33 B 33 Bennett Street, Enfield referring to conference with Mr. Dunn and Mr. Cooney about extreme delays in the District Court and informing the client that they would let the client know when a mention date was given. 11 April 1988 to Mr. H. Poulos 33 Burns Street, Campsie referring to recent enquiry about progress and confirming that they were still waiting for notice from the District Court about a mention date and expressing the view that the notice should be received within the next 2-3 months and requesting payment of barrister's fees in respect of the Local Court matter. 16 March 1990 to Mr. H. Theoharopoulos 6/13 Drummond Street, Belmore reporting notification of call-over on 3 September 1990 explaining what happens at call-over and informing the client that there was no need for him to attend. 17 September 1990 to Mr. H. Theoharopoulos 6/13 Drummond Street, Belmore about attendance at call-over on 3 September 1990 and pre-trial conference on 8 November 1990 and the need for the client to attend on that date and enquiring about identity of doctor. 12 October 1990 to Mr. H. Theoharopoulos 6/13 Drummond Street, Belmore about writing to the doctor for medical report and requesting payment of $60.00 to pay for it. 19 November 1990 to Mr. H. Theoharopoulos 6/13 Drummond Street, Belmore referring to conference and confirming pre-trial settlement conference on 22 January 1991 and informing the client that his attendance on that day was required and noting that the client would attend to payment of Dr. Tziniolis' account so that his report could be obtained and sent to the insurance company's solicitors. 10 January 1991 to Mr. H. Theoharopoulos 6/13 Drummond Street, Belmore requesting name of the psychiatrist and the other general practitioner referred to in the report received from Dr. Tziniolis. 20 February 1991 to Mr. H. Theoharopoulos 6/13 Drummond Street, Belmore confirming telephone conversation with client's interpreter and informing the client that the pre-trial conference had been adjourned to 14 March 1991 and arranging for the client to attend a conference with Mr Beale on 13 March 1991. 27 May 1991 to Mr. H. Theoharopoulos 6/13 Drummond Street, Belmore confirming telephone conversation and offer of settlement and advising what defendant's solicitor's had told the solicitor about the solvency of Waltons and advising that Mr. Beale had been informed and was considering the offer and that it might be necessary to have another conference with Mr. Beale to discuss the settlement offer. Conclusion Any failure by the solicitor to communicate properly did not amount to unsatisfactory professional conduct. In our opinion there was adequate correspondence between the solicitor and the client. Determination This was an unfortunate matter. It was commenced in a court that had no jurisdiction. The error was not detected by either side but when the matter came on for hearing on 16 April 1986 the magistrate directed the parties attention to the fact that he had no jurisdiction and the client's counsel obtained a non suit. By that time a period of some 21 months had elapsed from the time the solicitor had personally taken over carriage of the matter. It was urged upon us that no blame should be placed on the solicitor for not knowing that the Local Court had no jurisdiction and we accept this. In the opinion of this Tribunal it was not unusual for a contested matter in the Local Court to take as long as it did to come on for hearing. The matter was re-commended in the District Court on 2 September 1986 and a praecipe for trial was filed on 20 February 1987 and the matter was not placed in a call-over list until 3 September 1990, a delay of about 42 months from the date of filing of the praecipe for trial. There were difficulties about getting and serving a doctor's report, amendment of pleadings and filing of Rule 12 Part 4A particulars. We have stated on a number of occasions that aspects of the conduct of the solicitor, complained about that occurred before 1/1/1988 did not of themselves amount to professional misconduct. However these aspects must be looked at collectively and for the purpose of determining the issue of professional misconduct can be looked at in conjunction with aspects of conduct occurring after 1 January 1988. In the opinion of this Tribunal the totality of the solicitor's conduct in handling the matter did not amount to professional misconduct in that his conduct could not be said to be disgraceful or dishonourable and his conduct did not fall into the definition of professional misconduct in s.127 of the Legal Profession Act 1987 in that his conduct was not "such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence;". We have also said on a number of occasions that aspects of the conduct of the solicitor that occurred after 1 January 1988 did not of themselves amount to unsatisfactory professional conduct but we did express the view that the solicitor might have done better. The next question for determination is whether the conduct of the solicitor after 1 January 1988 amounted to unsatisfactory professional conduct. In the opinion of this Tribunal the solicitor's conduct in handling the matter after 1 January 1988 did not amount to unsatisfactory professional conduct in that his conduct did not "fall short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner". Accordingly the Complaint is dismissed. The order of the Tribunal is that - (1) the Complaint be dismissed; and (2) there be no order as to costs. Having determined that the solicitor is not guilty of professional misconduct or unsatisfactory professional conduct we make no order for compensation as claimed by Mr. Theoharopoulos. 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.