The Legal Services Tribunal of New South Wales CITATION : Brian Arthur Phillips [1995] NSWLST 11 PARTIES : Brian Arthur Phillips FILE NUMBER(S) : of 1994 CORAM: Mr C. Robison (Presiding Member) - Ms S. Hale - Mr D. Hughes Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to keep accounts - Unsatisfactory Professional Conduct - delay :- S.135 of the Legal Profession Act 1987 CATCHWORDS: failing to provide accounts in respect of fees for services provided by the Solicitor LEGISLATION CITED: Legal Profession Act 1987 Re Hodgekiss (1962) 62SR (NSW) ; CASES CITED: W F M Motors Pty Ltd v Maidwell (unreported 10 February 1994) ; Re Vickerv (1931) 1CH 572 DATES OF HEARING: Hearing dates: 18 October, 31 October and 1 November 1994; Dated this 25 day of January 1995. Darel Hughes 24 January 1995. EX TEMPORE 01/25/1995 JUDGMENT DATE : LEGAL REPRESENTATIVES: Mr N Nicholls instructed by Mr G J Still for the Law Society of New South Wales Mr J Webster instructed by Mr J Goold appeared for the Solicitor. JUDGMENT: Brian Arthur Phillips was found guilty of unsatisfactory professional conduct by the Legal Services Tribunal, for delaying and failing to provide accounts in respect of fees for services provided by the Solicitor. The Tribunal also determined the Solicitor was guilty of professional misconduct for breach of S61(3)(b) and Regulation 8 of the Legal Profession Act 1987, in transferring funds from trust without the client's authority. The Solicitor was fined. Complaint This Complaint was referred to the Legal Profession Disciplinary Tribunal as it then was by the Council of the Law Society of New South Wales ("the Society") pursuant to S.135 of the Legal Profession Act 1987 ("the Act"). In essence, the amended Particulars of the Complaint were as follows: (2) The Solicitor acted for the Client (Michael Coombs) in relation to the following matters: (3) (a) Coombs v Syer, a District Court action for motor vehicle property damage (b) (c) Coombs v Cameron a District Court action for assault and (d) (e) A claim for criminal injuries compensation arising out of the facts and circumstances the subject of the proceedings referred to in (b) above. (f) (4) In breach of S.61(3)(b) of the Act and Regulation 8(3)(a) of the Regulations the Solicitor wilfully withdrew trust money in satisfaction of costs due to the Solicitor without; (5) (a) having first obtained the authority of the Client on whose behalf the trust money was held, and (b) (c) having delivered to the Client on whose behalf the trust money was held an outline bill. (d) The following constituted particulars of paragraph (2) above as amended at the hearing: The Solicitor withdrew the following trust moneys in payment of costs and disbursements: From Trust Account 2536 Coombs M G District Court claim re Cameron 13/12/89 $326.00 4/7/90 $1,500.00 10/8/90 $988.12 23/1/91 $670.00 8/3/91 $250.00 11/3/91 $375.00 26/4/91 $255.00 From Trust Account 2405 Coombs/Syer 9/1/89 $90.00 5/7/89 $726.00 10/11/89 $1,000.00 9/1/90 $4,151.00 3/7/90 $165.16 From Trust Account 2560 Coombs application for Victims Compensation 3/7/90 $500.00 From Trust Account 2419 Coombs M G – assault re Cameron 1/7/88 $79.00 (3) The Solicitor delayed in providing the Client with an account in respect of fees for services provided by the Solicitor following upon the transfer of trust funds particularised in paragraph (2) above. (4) The Solicitor failed to provide the Client with an account for costs and disbursements in such form and containing such information as would enable the Client to understand the nature of professional work and services performed by the Solicitor and the amount of costs and other disbursements incurred and whether such costs and disbursements were reasonable. Particulars to paragraphs (3) and (4) It was alleged that the Solicitor delayed in rendering proper and adequate accounts in each of the matters in which he was retained to act referred to in paragraph (1) above. Order sought by Society: The Society requested an order in the nature of a fine as the Tribunal sought fit. Background to complaint There was no dispute that the Solicitor acted for the Client in the matters alleged although the Solicitor has disputed the allegation that he wilfully withdrew trust money in satisfaction of costs in breach of S.61(3)(b) of the Act and Regulation 8(3)(a) of the Regulations. The Solicitor has maintained, consistently, that he had authority from his Client to apply the moneys he received from Mr Coombs in satisfaction of his costs and disbursements. Furthermore, he maintained that at the time he believed that Clause 8 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 "was a guideline to solicitors in the handling of their trust funds and not a mandatory requirement". In order to properly understand the nature of the complaint against the Solicitor and the Solicitor's response, it is necessary to go into some detail concerning each of the matters with which the Solicitor was instructed. Accordingly, the matter can be conveniently dealt with under three headings. Claim for Property Damage – Proposed legal proceedings against G & M A Syer trading as "Graham Syer Smash Repairs" ("the Syer matter") The Solicitor received instructions to act for the Client to pursue a claim for damages against car repairers as a result of damage caused to his car arising from a fire which broke out in the car repairer's workshop. It appears that the claim was pursued by the Solicitor with some diligence which resulted in an award for damages in favour of the Client in the District Court Muswellbrook, following the hearing of the matter on 6 November 1989. In his Statutory Declaration declared on 24 August 1994 the Client alleged inter alia that he was unable to follow the accounts rendered by the Solicitor reciting confusion as to some of the amounts stated and that he did not know nor authorised certain transfers made by the Solicitor from his trust account to his office account at various stages in the transaction. The Client also alleged that he raised matters of concern with the Solicitor, in particular that he wished to receive an account which set out each item "and a price on it". The accounts the Client stated he received in this particular matter were referred to in his Statutory Declaration made 30 May 1994. Copies of these accounts are attached hereto. As to the account dated 25 August 1988, the Client stated that it was not clear to him upon reading it what moneys were paid by him to the Solicitor were used for the payment of the Solicitor's costs and for other disbursements and what moneys, if any, were owing by him to the Solicitor. He also said that the transfer purported to have been made on 19 February 1987 for $254.00 had not been authorised by him and he had not been aware up to the time of receiving the account that any such sum had been transferred. He understood that if an account was to be issued in that matter then he would pay it upon receipt. The Client expressed confusion about the sum of $286.00 and stated that the total of $846.00 was "meaningless" save that it appeared that the credit column balanced against the debit column in the account. The Client alleged that after receiving this account he telephoned the Solicitor, stated that he found the account confusing and apparently incomplete and requested that it be itemised. According to the Client, the Solicitor replied, "This is the proper way to do it". The Client, according to his evidence then did not press the matter further but requested a normal bill in the future setting out the costs for each item of work and how much he had paid in. The Client then referred to Annexure "E" in his Statutory Declaration, this being an account dated 18 December 1989. In his Statutory Declaration, the Client observed that both columns of the account "did not balance" and stated that he did not know that the Solicitor had made the transfers of the 19 February, 5 March and 13 May 1987. The Client alleged that he telephoned the Solicitor and said that he thought that he should be receiving the $8.000.00 which was awarded to him less any amount outstanding that he had not already paid to the barrister and that he should be receiving the whole of the verdict, less any moneys still owing to the Solicitor after allowing for costs which the defendant was ordered to pay. The Client alleged that the Solicitor stated that that is what he had done and that he had taken all of his fees from the Client's verdict and that the Client would receive all of the costs from the other side "once they are paid". The Client then allegedly said, "Look, I've seen the ledger cards in your office. This is what I want. I want a fresh account which goes through all the payments and what I owe you in the same way as they are recorded on ledger cards". The Solicitor allegedly replied, "I can't do it. This is the account". The Client also expressed confusion as to the balance of costs and disbursements due and how they were to be paid. He stated that he had not authorised the deduction of any fees. The next account to which the Client referred was Annexure "F' in his Statutory Declaration dated 30 May 1994. This account is dated 9 July 1990. The Client, inter alia stated that he did not authorise the deduction of $500.00 costs nor the transfer of $1,500.00 to the other matter on 4 July. The Client alleged that he did not understand what the account was for or how the moneys referred to therein were appropriated. The Client then received an account dated 9 July 1990 being Annexure "G" in his Statutory Declaration. After referring to various transfers, the Client stated that he did not authorise any such transfer. The Client received a further account from the Solicitor dated 20 August 1990 being Annexure "H" to his Statutory Declaration. According to the Client, he had the following conversation with the Solicitor, The Solicitor: "The $7,000.00 should be transferred on account of the costs in your assault case". The Client: "No, I need some of the money to pay some other bills". The Client stated that he agreed with the Solicitor that the Solicitor may transfer an amount of approximately $3,500.00 towards the assault case referred to therein. In the Solicitor's Reply he has, with some considerable vigour, put a number of issues in dispute and added further details about the nature of his instructions from the Client. He referred to his letter of 23 July 1986 addressed to the Client asking for a sum of $500.00 "for initial legal costs and disbursements". A copy of this letter was annexed to the Solicitor's Statutory Declaration of 27 September 1994, the penultimate paragraph reciting: "When you write, would you please enclose cheque for $500.00 on account of initial legal costs and disbursements involved". According to the Solicitor, eight days later he received from the Client a cheque for $500.00 drawn on his parents' company account together with a covering letter from the Client referring to the enclosed cheque "for initial legal costs and disbursements". This letter (Exhibit "9") refers to the cheque for such costs and disbursements in its opening paragraph and, with the middle paragraph giving details of various matters concerning the proposed claim for damages, the last paragraph read, "Would you please give me an estimate of the legal costs involved and when they would occur. I am not well financed and wouldn't want you to furnish an unexpected bill more than I could pay immediately". This cheque was then deposited into the Solicitor's trust account and he issued a receipt. The receipt (part of Exhibit "6") referred to the sum of $500.00 as being receipted on account of the legal costs and disbursements referred to. The Solicitor stated that some two years later when he received final instructions to commence proceedings that he explained to the Client that "legal costs are your responsibility until they are recovered from the proposed defendant (Syer)". The Solicitor alleged that he stated to the Client that the funds already paid had been mainly disbursed and that he would need another $60.00 for the filing fee and that more money would be needed for costs and disbursements as the matter progressed. The Solicitor stated, "It was my intention at the time and still is that Coombs, by his acceptance of the position, was authorising me to pay all expenses including my fees as and when they fell due". The Solicitor referred to the account of 21 July 1987 forwarded to the Client showing the expenditure of funds and a copy of this account is attached hereto. The Solicitor, in his Statutory Declaration and during the course of the proceedings, has always maintained that all of the transfers that he made in all of the matters in which he was instructed, were made with the Client's express authority. The Solicitor referred to his Statement of Account of 25 August 1988 and stated that it was the result of costing the file to that date. . He referred to a letter dated 19 December 1988 he forwarded to his Client, the relevant paragraph reading, "In the meantime would you please send cheque for $750.00 to cover costs (including the fee involved in a court appearance to move the court for summary judgment)". His final paragraph read: "Please make the cheque payable to 'Brian Phillips"'. He referred to the receipt of $1,030.00 on account on 23 December 1988 and indicated that the amount received represented payment of the sum of $750.00 and the sum of $286.00 balance due to him as per his statement dated 25 August 1988. The Solicitor took the view that the payment of the sum of $286.00 was confirmation that the Client had accepted the account without complaint and that his charge of $235.00 costs due to 25 August 1988 was accordingly paid. On 9 January 1989 the Solicitor transferred $90.00 "on account of costs due". He took the view that this sum was included in the sum of $286.00 previously referred to and was, "therefore authorised by Coombs". He referred to the account dated 31 May 1989 and stated that the transfer of $726.00 was the balance remaining of the Client's payment on account of costs and disbursements of $1,036.00 in December 1988. He stated, "the transfer was made pursuant to authority". The Solicitor alleged that by telephone on 25 October 1989 he requested the Client to make a payment of $3,000.00 and stated words to the following effect, "This payment represents $2,000.00 Counsel's fees due and $1,000.00 on account of my costs". The Solicitor attached a file note of the telephone conversation being Annexure 'I" to his Statutory Declaration of 27 September 1994. On 10 November 1989 (four days after the hearing) the Solicitor transferred $1,000.00 of the $3,000.00 paid to his office account with the remaining $2,000.00 being paid to Counsel. On 13 December 1989 the Solicitor received payment from the Defendant insurer of $8,596.00 damages awarded to the Client and by letter of 18 December 1989 he wrote to the Client enclosing "an Interim Statement of Account which incorporated an outline bill" and in which the Solicitor "accounted to him for his payments on account and for the damages referred to of $8,596.00". The third paragraph of his letter of 18 December 1989 stated, "As is the usual procedure in cases such as yours, we would be pleased to account to you (i.e. forward a final cheque) when we have recovered our assessed costs and disbursements from the Defendant's insurance company.". The Solicitor wrote to the Client again on 20 December 1989 with a progress report and in his Statutory Declaration he said: "As I did not hear from Coombs (i.e. there was no complaint or objection to the contents of my letter and statement of account to him of 18 December 1989), I transferred $4,151.00 on 9 January 1990". The Solicitor thereafter referred to subsequent taxation of party/party costs on 12 June 1990 and he sent a copy of the taxed bill of costs to the Client with a letter dated 29 January 1991. On 3 July 1990 he transferred a further $165.16 on account of his costs from the "damages collected for Coombs in keeping with" his "Interim Statement of Account of 18 December 1989 to him". The Solicitor maintained in his Statutory Declaration and during the course of the proceedings that at no time during the course of the matter did the Client raise with him any complaint as to his accounts nor the payment of his disbursements. The Solicitor is also denying the alleged conversation with the Client following receipt of the account of 18 December 1989. Cameron – Claim for Damages for Assault ("the Cameron matter") This was a matter in which the Solicitor acted for the Client in a claim for common law damages arising from an alleged assault at a hotel at Darlinghurst in October 1986. In his Statutory Declaration of 24 August 1994 the Client referred to Annexure 'I" of his earlier Statutory Declaration made on 30 May 1994. Annexure "I" being an account dated 31 May 1989 is attached hereto. The Client apparently thought that the account was incomplete and did not understand the nature of the transfer of the sum of $79.00. He again stated that he had not authorised transfer of any moneys and that he had not received any interim bill for professional costs incurred prior to receiving this account. After receiving this account the Client alleged that he telephoned the Solicitor with a request for other doctor's fees which may have been paid out on his account and that he wished to receive a bill which had each item on it and each payment made by him to the Solicitor. The Solicitor then allegedly agreed. The Solicitor has denied that this conversation ever took place. The Client stated that he did not receive any further account from the Solicitor in the Cameron matter until 1991. In March of that year he executed an authority directing the Solicitor to forward his files to Messrs. Sorensen & Brown, Solicitors. The Client alleged that he was not aware at that time of other payments which were being made following the transfer of $3,688.91 from the Syer matter to the Cameron matter and was under the impression that "that those fees had been paid from previous funds held by Mr Phillips in trust". The Client referred to the document described as "final cash account" dated 24 April 1991 which was marked as Annexure "A" to his Declaration of 24 August 1994 a copy of which is attached hereto. He expressed difficulties in following the accounting in that document for the following reasons: (a) "The initial entries for the years 1987, 1989 and 1990 appeared to have represented moneys received by Mr Phillips by me or on my behalf except for the transfer on 10 August 1990 of $3,523.91 (b) (c) There were no sub-totals. (d) (e) There then followed what appeared to be for the same period that is for the years 1987, 1989 and 1990 and 1991 amounts which had been paid on my behalf in respect of costs and disbursements. I had not previously received any account in respect of those fees paid for those years. (f) (g) I could not reconcile the Interim Statement of Account dated 31 May 1989 being Annexure "I" to my first Statutory Declaration with the final cash account dated 24 April 1991. For example, there was no reference made in the final cash account to be transferred to Mr Phillips of $79.00 recorded as having been made on 1 July 1988 in Annexure 'I". (h) (i) In addition I understood that the document headed "Final Cash Account" dated 24 April 1991 suggested that I owed Mr Phillips an additional $1,882.52 after allowing for the costs of $6,496.43 shown totalling $9,743.43. However the itemised bill of costs forming part of Annexure "A" indicated a total outstanding of $10,176.43. * (j) The Solicitor has gone to great pains to explain the various transfers and movements in respect to the payment of costs and disbursements in relation to this particular matter. He maintained, as he still does, that all of the transfers were made pursuant to the Client's authority and referred to correspondence to the Client requesting "payment on account". In particular, he maintained that he had authority to apply the taxed costs in the Syer matter ($7,688.91) towards the costs and disbursements involved in the preparation for hearing of the Cameron matter. In his letter of 1 August 1990 the Solicitor stated, 'With your authority we propose to retain the taxed costs to be recovered for the Muswellbrook hearing i.e. $7,688.91 and apply these funds towards our costs and disbursements involved in the preparation for hearing of your claim for damages for assault. Please advise whether you are agreeable". The Solicitor stated that by telephone on 7 August 1990 the Client gave him authority to retain the sum of $3,688.91 of these taxed costs and he attached a copy of his file note of that conversation. He also referred to the confirmation of this authority on 10 August 1990. Application to Victims Compensation Tribunal – Assault on 3 October 1986 ("the Victims Compensation matter") Here the Client stated that he was able to understand the professional fees and disbursements charged but was confused by the transfer of $500.00 on 1 July 1990. Consistent with his previous allegations, the Client stated that he did not authorise the transfer of such an amount. The Solicitor's response to this was that he was unaware that only statutory costs were payable in matters of this nature and that he was unaware that he was unable to claim such costs from his Client. After becoming aware of this, he "subsequently credited back to Coombs" the relevant amount. A Synopsis of the Solicitor's Response to Each of the Above Matters In his Statutory Declaration of 27 September 1994 as amended by his supplementary reply by Statutory Declaration dated 6 October 1994, the Solicitor referred to the relevant transfers made in relation to all of the matters at various times and took the view that the Client throughout accepted the situation as it was without complaint. He denied any 'phone call in which his account of 25 August 1988 was discussed as well as other conversations which allegedly took place between him and the Client. He believed that he was entitled to transfer the sum of $4,151.00 referred to in the account of 28 December 1989 and repeatedly stressed that he always had authority from the Client to do what he did. The Solicitor's final reply contained in his Statutory Declaration of 27 September 1994 is, in the Tribunal's view, illustrative of the Solicitor's attitude to the matter generally: "By way of final reply to the Statement of Complaint filed in these proceedings I say that when I acted for Coombs in relation to his litigation matters I believe that Clause 8 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 was a guideline to solicitors and the handling of their trust accounts and not a mandatory requirement. Accordingly I submit to the Tribunal that I never wilfully breached the requirements of the said Clause 8". We will return to the Solicitor's final reply later. Mr Webster, for the Solicitor tendered a chronology of the Statement of Account the Solicitor sent to the Client on various occasions (Exhibit 'Z') and, the Tribunal cannot help but feel that the Client's complaints as to the lack of information as would enable him to understand the nature of the work and services performed by the Solicitor are in fact, justified. Indeed, the Tribunal itself has had difficulty in coursing through the accounts so as to gather some form of understanding of their total effect. We can well understand the Client's concern in this regard. Although there is some duplication, the Tribunal feels that it is important to publish Exhibit 7 as a whole and this is attached to this Determination. It should also be recorded that a considerable amount of the Tribunal's time during the hearing was taken up with submissions and explanations as to various items in the accounts. Accordingly, the Tribunal has considered it necessary to embark on its own analysis of the accounts and transfers made by the Solicitor to his office account over the relevant period of time. Although the Tribunal appreciates that the allegations of wilful failure to comply with the provisions of the Act and Regulation relate to periods after the commencement of the Regulation on 1 April 1988 it has been necessary to delve into the relationship between the Solicitor and his Client beforehand and thereafter. The Tribunal's analysis of the accounts The relevant moneys were received during the period commencing 31 July 1986 to 10 August 1990 and trust account receipts were issued with endorsements endorsed thereon. Set out below is a summary of such receipts together with a summary of when the moneys were dealt with by the Solicitor and when accounting took place. Receipt No 4944 31.7.1986 From Romicro Investments Pty Ltd Re Coombs MG re District Court Proceedings on account of legal costs & disbursements $500 Trust Ledger Sheet dealings 19.12.1987 transfer to a/c No 2416 $254 5.3.1987 transfer to a/c No 2416 $22 13.5.1987 Jnl transfer to 2419 $132 1.7.1987 To BAP Gen a/c c/d $50 13.7.1987 To BAP Gen a/c c/d $42 $500 Accounting to Client: Interim Cash Account dated 25 August 1988 (annexure "C" to the Client's Statutory Declaration made 30 May 1994) shows transfers of the first two amounts set out above i.e. $254 and $22 but does not show the last three items. The Interim Cash Account dated 18 December 1989 shows a sum of $132.00 as a debit entry (see Annexure "E" to the Client's Statutory Declaration made 3 0 May 1994). The Tribunal can find no reference to the remaining two items either individually or added together in any of the accounts rendered to the Client. Receipt No 4983 31/3/1987 From Romicro Investments Pty Ltd re Coombs MG re District Court action on account of legal costs & disbursements $700 Trust Ledger Sheet Dealings 3.4.1987 Transfer to BAP Gen a/c $150 14.4.1987 Paid Eric Goulston – report $120 14.4.1987 Paid Bruce Taylor – fee $140 14.4.1987 Paid George Reid – fee $ 38 14.4.1987 Paid Paul Tandy – fee $ 35 27.4.1987 Paid St Vincents Hospital $ 36 4.5.1987 Paid District Court, Sydney $ 63 5.5.1987 Paid K Bledsal – med fee $118 $700 Accounting to Client: All but the first and last items appear in Final Cash Account dated 24 April 1991 and this appears to be the first time the Client received an account relating to these particular items. This account forms part of Annexure "A" of the Client's Statutory Declaration made 24 August 1994. The Tribunal cannot locate in any of the accounts forwarded to the Client the transfer of $150 from the trust account to the Solicitor's general account nor can we find any reference in any account sent to the Client of the lastmentioned sum, i.e. $118 although the Solicitor's Statutory Declaration of 28 October 1994 refers to this as being a trust account cheque returned to his office unpresented and redeposited to the credit of the account in that matter. Receipt No 4995 13.5.1987 Romicro Investments Pty Ltd Re Coombs MG v Cameron on account of initial legal costs and disbursements $500 Trust Ledger Sheet Dealings: It would appear that this amount was disbursed as to: 20.5.1987 To Lesley Wong – Counsel $240 26.5.1987 _To Investigating Services $ 23 1.7.1987 To BAP General a/c$355 $355 $618 The above totals take into account the unpresented cheque referred to above. Accounting to Client: The first two items appear in the final cash account dated 24 April 1991 and the Tribunal cannot find any reference in any of the accounts rendered to the Client the debit of $355. Receipt No 4996 15.5.1987 From M G Coombs re Coombs M G ats Fleming on account of legal costs and disbursements $654 Trust Ledger Sheet dealings 18.5.1987 Paid to Cotter Roberson & Webb $186 1.7.1987 Transfer to BAP Gen a/c c/d $468 $654 Accounting to Client: The Tribunal cannot find in any of the accounts sent to the Client references to these particular debits however there is a reference to a disbursement in the sum of $186 in Account dated 21 July 1987 which may or may not be the same. Receipt No 5040 31.8.1987 From Romicro Investments Pty Ltd re Coombs MG re (1) you ats I:leming $567 and (2) you v Cameron $1000 being (1) balance costs due as noted and (2) on a/c costs & disbursements $1,567 (NB) This amount has been posted from the receipts as separate items, namely $567 into Coombs 2416 (Exhibit 'T) and $1,000 into Coombs re Assault (Annexure "N" of Mr F Smith's Declaration of 19 April 1994) Trust Ledger Sheet Dealings: 2.9.1987 Transfer to BAP gen a/c c/d $ 567 2.9.1987 Transfer to BAP gen a/c c/d $ 123 14.9.1987 Transfer to BAP gen a/c c/d $ 100 17.9.1987 Paid LG Wong – counsel $ 420 18.9.1987 Transfer BAP gen a/c c/d $ 100 14.10.1987 Transfer BAP gen a/c c/d $ 50 23.10.1987 Paid District Court $78 23.10.1987 Transfer BAP gen a/c $50 1.7.1988 To BAP gen a/c c/d $79 $1,567 Accounting to Client: The fees paid to L G Wong and the District Court are set out in the Final Cash Account dated 24 April 1991. The fee paid to the Solicitor in the sum of $79 is set out in Interim Statement of Account dated 31 May 1989. The fee paid to the District Court in the sum of $78 is set out in itemised Final Cash Account dated 24 April 1991. As to the balance of the debits the Tribunal is unable to locate any of these in the accounts sent to the Client. Receipt No 5125 29.4.1988 From MG Coombs re Coombs, MG v Cameron fee payable to Dr F Bors $100 Trust Ledger Sheet Dealings 2.5.1988 Paid to F Bors – med. Fee $100 Accounting to Client: This fee appears in Interim Statement of Account dated 31 May 1989 which is Annexure "D" to the Client's Statutory Declaration dated 30 May 1994. Receipt No 5179 8.8.1988 From St George Building Society re Coombs MG v Cameron on a/c costs & disbursements $105 Trust Ledger Sheet Dealings 11.8.1988 Paid to Local Court $105 $105 Accounting to Client. This amount appears in Interim Statement of Account dated 31 May 1989 which is Annexure "D" to the Client's Statutory Declaration dated 30 May 1994. Receipt No 5180 8.8.1988 From MG Coombs re Coombs MG v Graham Syer Small Repairs being on a/c court filing fees ($10.00 balance to pay) $60 Trust Ledger Sheet Dealings 12.8.1988 Paid to BAP – transfer to gen a/c$60 $60 Accounting to Client: This amount appears in Interim Statement of Account dated 31 May 1989 being Annexure "D" to the Statutory Declaration of the Client dated 30 May 1994. Receipt No 5237 23.12.88 From MG Coombs by St George B/S cheque re Coombs MG v Syer being on a/c costs & disbursements $1036 Trust Ledger Sheet Dealings 9.1.1989 BAP transfer to gen a/c c/d $90 Lesley Wong – counsel fees $220 Journal – c/d to gen a/c $726 $1036 Accounting to Client The first two items appear on Interim Statement of Account dated 31 May 1989 being Annexure "D" to the Client's Statutory Declaration dated 30 May 1994. The Tribunal cannot find the other item anywhere in the accounts sent to the Client. Receipt No 5328 15.8.1989 From Romicro Investments Pty Ltd re Coombs MG v Cameron (District Court Action) on a/c disbursements payable $ 850 Trust Ledger Sheet Dealings 22.8.1989 Norton Business Centre $524 13.12.89 BA Phillips $326 $850 Accounting to Client The first item appears in Final Cash Account dated 24 April 1991 being Annexure "A" to the Client's Statutory Declaration dated 24 August 1994. The Tribunal cannot locate any reference to the other debit in any of the accounts sent to him Receipt No 5353 3.11.1989 From St George Building Society re Coombs MG v Syer on a/c costs & disbursements $3000 Trust Ledger Sheet Dealings: 10.11.1989 BA Phillips $1000 22.11.1989 LG Wong $2000 $3000 Accounting to Client. The fee to L G Wong appears in the Interim Cash Account dated 18 December 1989 which is Annexure "E" to the Client's Statutory Declaration dated 24 August 1994. The Tribunal cannot locate any reference to the other debit in any of the accounts sent to the Client. Receipt No 5414 10.8.1990 From St George Building Society Let re Coombs MG v Cameron on a/c Counsel's fees $ 450 Trust Ledger Sheet Dealings: The Tribunal is unable to identify this amount as a debit in the relevant trust ledger. Accounting to Client The Tribunal is unable to identify this amount in any of the accounts set to the Client. The Tribunal is at a total loss for the most part to understand the Solicitor's method of accounting to his Client. It is conceded that while most of the disbursements appear in the accounts, the majority of amounts transferred by way of costs are not revealed in any clear manner so as to enable any person to understand the nature of the account on at least his or her first reading. It follows that the Client would have had a problem in identifying the moneys transferred by the Solicitor for his costs and indeed, as recited above, many of the transfers were not disclosed at all. In his evidence, the Solicitor agreed as a general proposition that a Memorandum of Fees should indicate the work actually performed by a solicitor at least in an outline form. He disagreed, however, that it was desirable practice to fully disclose in accounting to a Client transfers effected by a solicitor from his trust account to his general account in payment of fees. He was asked, '1 put it to you that in 1986 during the course of your retainer with Mr. Coombs it was incumbent upon you to disclose to Mr Coombs in accounts or trust statements the nature of transfers made from trust to your general account in payment of fees?" Answer – "I don't agree". Later, when this question was put to the Solicitor again but limited to what is considered to be desirable practice, the Solicitor's response was, "It may have been desirable but it was not something which I felt was necessary." The Solicitor also conceded that he was aware of "a Regulation which requires certain particulars to be stated in accounts". From the Solicitor's evidence, the Tribunal considers that he may have had some knowledge of the requirements of the Trust Account Regulations effective 1 April 1988. This is reinforced by the following extract from his evidence, "Q. With the passing of Regulation 7 and 8 in April 1988 you were aware then, weren't you, that the way in which you would account to your Clients in your practice changed. You would have to comply with those Regulations. You knew that then, didn't you? A. I always regarded Clauses 7 and 8 – in fact the whole Regulation – is a guideline more than a mandatory requirement. Q. I am not asking whether you regarded Regulation 7 and 8 as a guideline or mandatory requirement. The question I put to you is; you knew, with the passing of Regulation 7 and 8, your accounting procedures to your Clients had to change? A. Well I was aware that an outline bill had to be sent and an authority obtained from the Client, speaking generally, before transfers were made. Q. You knew that. Well let me put it this way; you knew you needed an authority from the Client before transfers could be made from you trust account to your office account in payment of your fees? A. Well, as I said I regarded the Clauses as guidelines not mandatory requirements." It seems that the Solicitor never appreciated that the effect of both Clauses 7 and 8 of the Regulation was mandatory and we are somewhat surprised by this assertion having regard to the fact that the Solicitor is a practitioner of many years' standing and ought to know the effect of regulations of this nature. It is possible that the Solicitor may have misunderstood the effect of the Regulations at least in the early years of their passing and it seems that the Solicitor did not come to grips with what was required of him by Statute and Regulation when he should have. The Solicitor maintains that he was not wilfully in breach but as submitted by the Society, the fact was that he received moneys which according to a decision of Young J. in W F M Motors Pty Ltd v Maidwell (unreported 10 February 1994) such moneys are in fact trust funds within the meaning of S.61 of the Act. The Society submitted that once the funds provided by the Client were paid into the trust account they automatically became trust funds to be held pursuant to the statutory trust. The Solicitor asserted that he placed such funds received from his Client into his trust account as a matter "of convenience" and it was not until he ceased to act for the Client that he realised the legal implications of the Regulations which came into force on 1 April 1988. Indeed, in his letter to the Society of 10 June 1993 he stated that he did not appreciate the requirements of Regulation 8 and that he now understood his responsibilities thereunder. He regretted his "failure to observe the requirements in Regulation 8 and any consequential breach of S.61 of the Legal Profession Act 198T'. He added, "I undertake to the Society to properly observe the Trust Account Regulations and provisions of the Legal Profession Act in the conduct of my practice". The Solicitor had previously made some rather emotional statements about the Complaint generally which he retracted in this correspondence. As submitted by Mr. Nicholls for the Society, there are two issues for determination in this matter; the first is whether or not the accounts were in a sufficient form,, containing sufficient particulars and issued in a timely way so as to keep the Client informed of the nature and extent of professional fees being charged. The fact that so much time was taken up during the hearing with submissions as to various items in the account and the need for this Tribunal to embark on a course which was virtually an audit of the Solicitor's accounting procedures, leads us to the inevitable conclusion that the accounts were certainly not in such a form and did not contain the appropriate particulars to render themselves liable to be understood by a person such as Mr Coombs or any other person for that matter. The transactions involving the transfers and the timing of each of the accounts has created what should have been a very straightforward matter of accounting into a monstrous exercise of confusion, uncertainty and at times, complete failure to account for some of the transfers. The Client was put in an impossible position as a result. The Client asserts and the Solicitor denies that he endeavoured to have clarification of the accounts during the course of the Solicitor's retainer. The Tribunal does not feel it is necessary to resolve that issue as the paper work is self evident of the deficiencies found above. Unsatisfactory conduct The Tribunal does not feel that it needs to determine what can be constituted as a delay in providing such accounts. Each case must depend on its own circumstances and no hard and fast rule can be set. In these particular circumstances, any delay must be considered in the context of the confusion which is self-evident from the paper work produced by the Solicitor and, in the circumstances, there is sufficient delay to find that Particular 3 together with Particular 4 of the Complaint have been made out. Accordingly, the Tribunal has no hesitation in finding that the conduct of the Solicitor in the rendering of the "accounts" and the timing thereof constitutes conduct which, in the circumstances "falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner" and the Solicitor is therefore guilty of unsatisfactory conduct within the meaning of S.123 of the Act. It now remains necessary to consider whether the Solicitor breached S.61(3)(b) of the Act and Regulation 8(3)(a) of the Regulations. Authority The Tribunal, having considered all of the evidence, has formed the firm view that the Solicitor indeed had authority to apply all funds received from his Client towards costs and disbursements. It is not necessary for such authority to be in writing, it may be verbal or confirmed from the circumstances of the Solicitor's instructions. We have taken into account that the Solicitor's requests for costs and disbursements were made at regular stages during the course of each of the matters. The Client's own letter to the Solicitor enclosing a cheque for "Initial legal costs and disbursements" of 30 July 1986 (attached) and the Trust Account receipts themselves confirm this fact. There is no doubt that the Solicitor had authority to apply such funds to both costs and disbursements. It is the apparent failure to completely comply with Regulation 8 which remains to be determined. The Regulation is dearly mandatory in its terms. It is worth reproducing below. "(8)(1) A solicitor shall comply with this Clause in respect of all money to which S.61(3)(b) of the Act applies. (2) A solicitor shall on receipt or as soon as practicable after receipt, of money from which the solider is authorised to received costs and disbursements, deliver to the Client an outline bill unless a bill or account of the costs or disbursements has been delivered to the client before receipt of the money by the solicitor. (3) (4) A solicitor shall not withdraw trust money or controlled money in satisfaction of any costs or disbursements unless (5) (a) the person for whom the money is held has authorised the withdrawal and the solicitor has delivered to the person an outline bill; (b) (c) the solicitor has delivered to the person an outline bill together with written notice that, unless the person objects, the solicitor intends to withdraw the money and apply it towards payment of the bill at the expiration of 1 month and the month has expired without any objection being made, or (d) (e) the solicitor, having received from the person an objection to an outline bill delivered under paragraph (b) has served on the person a bill of costs, or an account, in a form which would enable it to be taxed under the provisions of an applicable Act, rule or regulation and the person has not, within the time limited by the provisions, applied for taxation of the bill or account. (f) The Tribunal considers that the first limb of Regulation 8 has been complied with, that is, the Solicitor did in fact have authority to apply the funds he received from his Client towards costs and disbursements. The need to provide outline bills What the Solicitor has failed to do in a timely fashion was to deliver to the Client an outline bill setting out those costs and disbursements. By choosing to place such funds in his trust account, the Solicitor was automatically required to comply with the Regulation. He chose not to do so and thought, at the relevant time that the Regulation was a mere guideline without it being mandatory in effect. For the Solicitor to be found guilty of professional misconduct arising from a breach of Clause 8, such a failure must be found to be "wilful", otherwise the Solicitor is not in breach. Mere technical failure of the Regulation does not constitute wilfulness and, for the Society to succeed in this regard, it must convince the Tribunal that it should be comfortably satisfied that the Solicitor's conduct contained all of the ingredients to amount to such wilfulness. The Tribunal has given considerable thought to this aspect and has given very careful consideration to the submissions given on behalf of the Society and on behalf of the Solicitor. We have already found that the funds received into trust are trust funds within the meaning of S.61 so therefore the manner with which the Solicitor dealt with those funds is critical. The question of wilfulness was considered by the Tribunal in the matter of Phillip John Pollack (1993) 4LPDR. In that case the solicitor admitted breaches of S.61 but submitted that the breaches were not wilful. The Tribunal found that the breaches were wilful and referred to the principles relating to wilful failure in the matter of re Hodgekiss (1962) 62SR (NSW) 340. Hardy J. in that case referred to a decision of re Vickerv (1931) 1CH 572 where it was stated: "A person is not guilty of wilful neglect or default unless he is conscious that in doing the act which is complained of or in omitting to do the act which it is said he ought to have done, he is committing a breach of his duty, or is recklessly careless whether it is a breach of his duty or not.". Hardy, J. in re Hodgekiss said: "Applying those principles, I am of the opinion that the Section deals with personal breaches of the Statutory Provisions in question on occasions when the solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. It is thus essential in an enquiry as to whether or not there has been wilful breaches by a solicitor of the provisions of Sections 41 and 42 to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the material times". His Honour applied this principle to the statutory equivalent of S.61 of the Legal Profession Act. The solicitor's state of mind In deciding whether the Solicitor is guilty of a wilful failure in accordance with S.61 all of the relevant facts at the time of the alleged wilful failure must be carefully taken into account and in particular, the Solicitor's "state of mind, knowledge and intention at the material times" must be examined. The Tribunal has had some difficulty in ascertaining the state of mind of the Solicitor at the time having regard to his evidence. There is certainly, at least, a technical breach of Regulation 8 in that the Client did not receive a proper outline bill although the Solicitor did have, as we have previously found, authority to apply the funds received from his Client towards costs and disbursements. The Solicitor effected numerous transfers without rendering an outline bill and it seems that in order for the provision to be fully complied with an outline bill must be delivered to the Client before such transfers are effected. The authority was clearly "first obtained" and the first limb of the requirement of regulation has been satisfied. The second limb, however, that is the requirement to deliver "to the Client on whose behalf the trust money was held on outline bill" was not satisfied and it appears that the Solicitor endeavoured to belatedly comply with the Regulation after the transfers were made and in any event the outline bills did not, at the end of the day, truly represent an accurate record of such transfers as previously observed. The state of mind of the Solicitor at all of the material times appears to indicate that he may have been aware that some procedure effecting outline bills and the like was required and he viewed the provisions of Regulation 8 as a guideline only and not mandatory. According to the Solicitor, it was not until some time later that he realised the full effect of Regulation 8 and, it could well be that he had not fully come to grips with his obligations as required by that Regulation when he should have. There is some evidence that the Solicitor knew or at least had a suspicion that he was obliged to do certain things under Regulation 8. For example in an account he forwarded to the Client dated 31 May 1989 he made reference to "Legal Profession Act 1987, Legal Profession (Trust Accounts and Controlled Money) Regulation 1988". In the accompanying letter to the Client ( Exhibit "H") he referred to the "Solicitors' Trust Account Regulations" being "recently amended" and the requirement to send "clients a Statement of Account in respect to trust funds" in certain specified circumstances. It is therefore clear, that at least at that time the Solicitor appeared to become aware of his requirements but at the same time he still did not seem to fully appreciate of his statutory obligations. He referred to the account being prepared by his bookkeeper and "felt it was the right thing to do to send off this account". He added in his evidence that the "legal implications to (sic) the new Causes were not, of course, widely known at that time". The bookkeeper was not called to give evidence by the Society or the Solicitor. He also stated that after 1 April 1988 he was not fully aware of his obligations but was aware of them "in a general way". The Solicitor denied the suggestion that he knew that the requirements were mandatory. The following emerges from the transcript in relation to a letter the Solicitor forwarded to the Society regarding the original Complaint on 24 December 1992 wherein he referred to Clauses 7 and 8 of the Regulations as "simply technicalities and niceties": "Q. You considered at the time you wrote this letter to the Law Society on 24 December 1992 that the requirements of Clauses 7 and 8 were simply technicalities and niceties? A. At that time I believed that the Clauses were technicalities which Solicitors should observe. Q. Which Solicitors should observe? . A. Should observe. Q. You had that belief in December of 1992. A. Yes that is right. Q. What I am putting to you is that you had that very same belief on and from after April 1988 when Regulation 7 and 8 came into force? A. No, it was not until after I ceased to act for this Client that I realised the legal implications of the Regulations that came into force on 1 April 1988". This evidence does not rest comfortably with the Solicitor's later evidence that he had requested authority in writing from the Client on 1st August 1990 to transfer funds from the Syre matter to the Cameron matter. He was asked why he requested that authority in writing from the Client on 1 August 1990 and his answer was that he did not request the authority in order to comply with Regulation 8 but simply thought it was prudent to request the authority for that transfer. Wilfulness not established There are strong suggestions that the Solicitor knew or ought to have known that he was required to strictly comply with Clause 8 of the Regulation at least some time after the 1st April 1988 but it is difficult to judge this time with any degree of real accuracy. It seems that the Solicitor relied considerably on his bookkeeper and did not address his mind, as he should have, to his requirements. The evidence suggests that he had a general knowledge of some form of guideline which he apparently thought was flexible enough not to be complied with in a strict sense. This has been a difficult matter to determine with precision and in the circumstances we feel that the question of wilfulness is borderline and the Tribunal needs to be comfortably satisfied that he was guilty of a wilful breach in accordance with the principles of Hodgekiss. A finding of professional misconduct cannot be made lightly without complete satisfaction of a practitioner's guilty mind in these circumstances. Although it is with some hesitation, the Tribunal is not, with the exception of one particular transfer, prepared to make a finding of professional misconduct against the Solicitor in these circumstances. In saying this, the Solicitor is dearly in technical breach of the second limb of Clause 8 but a technical breach does not amount to wilfulness in accordance with the principles we have previously referred to. Transfer without authority We now turn to the matter in which we propose to make an adverse finding against the Solicitor and that is the transfer of $4,151.00 on 9 January 1990 from trust account 2405 Coombs/Syer. The Solicitor's letter dated 18 December 1989 addressed to the Client advised receipt of the verdict money on 13 November, enclosed an interim cash account indicating $582.84 part payment due to the Client and a trust account cheque for $584.84 in his favour. There was nothing in that letter to indicate that the Solicitor was about to transfer the sum of $4,151.00 and, according to the Solicitor's evidence, he transferred that sum on 9 January 1990. In the Solicitor's Statutory Declaration of 27 September 1994 he refers to an interview with the Client on 8 August 1988 stating that the Client had been aware that his party/party costs would be recovered from the defendants and that he would be given "credit for such recoverable costs against" the Solicitor's "costs of acting for him". He said that he wrote to the Client on 20 December 1989 with a progress report about the recovery of his "party and party" costs and stated that as he did not hear from the Client "i.e. there was no complaint or objection to the contents of my letter and statement of account to him of 18 December 1989", the Solicitor transferred $4,151.00 on 9 January 1990. The letter was tantamount to seeking authority. It was not given. The Solicitor had no authority whatsoever to transfer these funds and accordingly the Tribunal finds that he is guilty of professional misconduct in respect to this particular transaction as he has breached S.61(3)(b) of the Act and Regulation 8. Summary of findings The Solicitor has therefore been found guilty of unsatisfactory conduct as to Particulars 3 and 4 of the Complaint and professional misconduct in relation to one matter involved in Particular 2. The solicitor's professional background The Solicitor was born on 10 July 1937 and was admitted as a Solicitor of the Supreme Court of New South Wales on 23 August 1963. After a short time of employment he established his own practice at Chatswood as a sole practitioner on 1 September 1964 and continues to so practise. He was Vice President of the North Metropolitan Law Society between 1969 and 1973 and was President of that Society from October 1977 to October 1980. He has an association with the College of Law in that he wrote a Practice Paper on the Sale and Purchase of Businesses and has undertaken an annual review of the Practice Paper since 1981 and continues to do so. An impressive array of character references by way of Statutory Declarations were tendered on the Solicitor's behalf. Eric John Shields QC, one of the declarants, gave verbal evidence on the Solicitor's behalf. It is clear from the character evidence that the Solicitor is a person of integrity and is a person of good fame and character beyond reproach. It is also clear that the matters with which he was instructed by Mr Coombs were handled competently and satisfactorily for the Client and all of these factors have been taken into account in considering the penalty to be imposed. As to costs, the Tribunal proposes to order costs in favour of the Society save that the Society should pay the Solicitor's costs, including Counsel's fees following the amendments to the Statement of Complaint regarding alleged breaches of Regulation 8 before the Regulation came into effect on 1 April 1988. It has been submitted on behalf of the Solicitor that the Solicitor incurred costs in preparing detailed instructions in relation to the pre-Regulation 8 transfers together with Counsel's fees. An order for costs has been sought by the Solicitor in respect of his costs and Counsel's fees relating to letters of 1 September 1994 and 26 September 1994 which sought further and better particulars of the Society. Although the Society submits otherwise, it was submitted on behalf of the Solicitor that it was not dear whether the Society would be seeking an amendment to its Complaint by the deletion of the transfers made prior to 1 April 1988 until Counsel for the Society sought the amendment at the commencement of the hearing. In any event, the Tribunal feels that the circumstances warrant the making of an order in favour of the Solicitor in this regard. Orders The Tribunal makes the following orders that: 1. In relation to the findings that the Solicitor is guilty of professional misconduct and unsatisfactory professional conduct the Solicitor pay a fine of One thousand dollars ($1,000.00) in total within a period of thirty days from the date of this Order. 2. 3. The Solicitor be suspended from practice at the expiration of the said period of thirty days if the said fine shall not have been paid until it has been paid. 4. 5. The Solicitor pay the costs of the Law Society of New South Wales as agreed or is determined by the Tribunal pursuant to S.171E of the Legal Profession Reform Act 1993 with the exception of the costs of the Solicitor relating to letters from his Solicitor to the Society of 1 September 1994 and 26 September 1994 which are to be paid by the Society to the Solicitor or as determined by the Tribunal pursuant to S.171E of the Legal Profession Reform Act 1993. 6. If agreement cannot be reached, either party have liberty to apply for determination of the quantum of such costs. Dated this 25 day of January 1995. Legal Services Tribunal In the matter of Brian Arthur Phillips Determination I have read the Determination of The Presiding Member and Miss S Hale in this matter and I agree with that determination with the exception of the section dealing with Authority. The matter of authority arises from Regulation 8(3)(a) of the Regulations to the Act as under: "8(3) A solicitor shall not withdraw trust money or controlled money in satisfaction of any costs or disbursements unless (a) the person for whom the money is held has authorised the withdrawal and the solicitor has delivered to the person an outline bill. The regulation therefore requires both authorisation and the delivery of an outline bill. I agree with the finding of fact of the Presiding Member and Miss Hale regarding solicitors failure to deliver outline bills, however I disagree with the finding of fact that the solicitor "did in fact have authority to apply the funds he received from his client towards costs and disbursements." The Presiding Member and Miss Hale have found that the payment of monies to the solicitor in the circumstances of this matter together with the conduct of the client in acceding to such requests for funds "on account of legal costs and disbursements" over a period of time constituted sufficient authority to make the transfers in respect to professional fees. I respectfully disagree with the Presiding Member and Miss Hale. The matter of authority to apply the funds a solicitor receives and paid into trust rests, in case of professional fees, on the client being advised of the quantum of that fee. In the present case the solicitor made a number of requests to the client for monies to be forwarded to the solicitor "on account of fees and disbursements". Those requests included a letter from the solicitor requesting $500 "for initial legal costs and disbursements" on 23 July 1986. It was followed by a letter from the client dated 30 July 1986 enclosing a cheque "for initial legal costs and disbursements". Subsequently other requests were made for similar payments of funds which were applied to the solicitors trust account, including a number which were made in the period following application of Regulation 8. In my opinion that request and subsequent payment does not constitute an authority upon which the solicitor can rely to transfer funds from trust because, after taking into account the fact that disbursements may be made from trust (providing they are relevant to the proceedings), the quantum of professional fees is not determined at the time of the request. The fact that the client acceded to a number of such requests from the solicitor without complaint, makes no difference, in my opinion. The nature of the payment is, in the absence of any other evidence, placing the solicitor in a position of controlling the funds belonging to the client, until such time as a specific authority for a transfer is made. Such an authority can only be given when the quantum is determined, normally by the issuing of a bill. There is no evidence in this matter that some other form of authorisation was sought by the solicitor in the case of those transfers where no outline bill was delivered. I am therefore of the opinion that the solicitor did make transfers from trust to his general account on account of professional fees without authority. It therefore becomes necessary to consider the matter of "Wilfulness" in relation to this technical breach of the regulation. The solicitor gave evidence that he relied on the requests made and subsequent payments by his client as well as the manner in which the account was conducted for the authority to make transfers from trust. I accept that the solicitor believed that he had the necessary authority and I also believe that he was conscious of the need to have authority to make the transfers from trust. I am therefore of the opinion that, in the absence of the breach being wilful, the solicitor is not guilty of Professional Misconduct, in relation to the authority to make transfers from his Trust Account. In all other respects I agree with the determination and orders, including penalty, as set out in the Determination of the Presiding Member and Miss Hale. Darel Hughes 24 January 1995. 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.