Morris-Corkill v The Law Society of New South Wales [2009] NSWADT 43

CITATION: Morris-Corkill v The Law Society of New South Wales [2009] NSWADT 43

DIVISION: Legal Services Division

APPLICANT Maxine Morris-Corkill PARTIES: RESPONDENT The Law Society of New South Wales

FILE NUMBER: 082003

HEARING DATES: 4 September 2008, 19 December 2008

SUBMISSIONS CLOSED: 19 December 2008

DATE OF DECISION: 27 February 2009

BEFORE: McGuire J - ADCJ (Deputy President); Currie J - Judicial Member; Bubniuk L - Non-Judicial Member

CATCHWORDS: Review – decision to reprimand (section 540)

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004

APPLICANT In person REPRESENTATION: RESPONDENT C Webster, barrister

1 Having considered the material and submissions placed before it the Tribunal finds that the Appellant was in clear breach of Rule 31.1 of the Law Society of NSW Practice and Professional Conduct Rules. ORDERS: 2 It further finds that the Applicant is under no obligation to undertake an ethics course as recommended by the P.C.C 3 Having reviewed the decision to the P.C.C to reprimand the applicant, the Tribunal confirms such reprimand. The Applicant stands reprimanded.

REASONS FOR DECISION 1 At all material times Paul Dixon (Dixon) solicitor acted for Chris Finnegan (Finnegan) in Family Law proceedings arising out of the custody and retention of his two infant children. Maxine Morris Corkhill, solicitor, (the applicant) acted for Debbie Weatherly (Weatherly), Finnegan's defacto wife, the mother of the said children. 2 Suffice it to say that Dixon and the applicant were seeking, on behalf of their respective clients' orders, relating to custody and access to the children. 3 On 21/10/2005 the applicant had a telephone conversation with Finnegan in which he informed her that he filed his own application. He further informed her that he was represented by a lawyer, Paul Dixon or Mr Dixon. She claims that Finnegan refused to provide her with contact details for his solicitor. 4 Finnegan's application was returnable at WYONG Local Court on 8/12/2005. 5 On 7/12/2005 the applicant filed an application seeking final orders. This was listed as an urgent application at GOSFORD Local Court on 9/12/2005. 6 A process server instructed by the applicant made an unsuccessful attempt to serve Finnegan with the application. 7 The applicant became aware that Finnegan's WYONG Local Court application was listed on 8/12/05. On the morning of 8/12/2005 she attended WYONG Local Court and attempted to make contact with Dixon. It's her claim that she had him paged from the main office and made enquiries about him from the court staff. 8 Apparently Dixon had left the court after mentioning the matter, which was adjourned until a date in February 2006. 9 At that point there had been no contact or communication between the applicant and Dixon. 10 It's plain that the applicant knew that Dixon was acting for Finnegan as far back as 21/11/05. She was well aware of his contact details as at 8/12/2005 as on that day she had prepared and endeavoured to forward him the following facsimile: Facsimile Transmission Our ref: MC:MC:0088 Your ref: PD To: Stephen Marks Solicitors Attn: Paul Dixon Fax No: 43925846 From: Morris Corkhill Solicitors Date: 8 December 2005 No of pages: 20 Re: Weatherly & Finnigan Please seek your client's instructions to accept service on his behalf in relation to Friday listing at Gosford Court. If your client does not attend that hearing we will seek orders that the matter be heard in his absence. I have spoken to your client and he is fully aware that the matter is listed for tomorrow and I will be putting on an affidavit as to the telephone conversation I had with him whereupon he refused to give me either his address or his solicitors contact details, in an attempt to avoid Service for Court documents. Please find by way of service, documents for tomorrow's hearing. We are advised by Gosford Court that a matter concerning a Recovery Order can be dealt with at Gosford tomorrow together with the Filing of Subpoena to the New South Wales Police Department returnable on Friday 18" December 2005. Please bear in mind that the Court will be told that the mother has not seen her babies for 5 weeks, that is the equivalent of half the age of the youngest child….… Our client has evidence to support this assertion. Many thanks Maxine Morris-Corkhill MORRIS CORKHILL SOLICITORS 11 In fact that facsimile was not transmitted on 8/12/2005 as a result of the applicant's clerk failing to obey her instructions. It was not forwarded until 9/12/2005. 12 The applicant telephoned Dixon early in the afternoon of 8/12/2005. In the course of their conversation she informed Dixon that she acted for Weatherly and he confirmed that he acted for Finnegan. A somewhat acrimonious discussion ensued, however of importance is the fact that the applicant did not raise with Dixon the question of whether he would accept service on behalf of his client. It must have been obvious that Dixon had not received the facsimile, as there was apparently no exchange regarding service. 13 At about 2.45pm on 8/12/2005 Weatherly attended on the applicant and informed her of Finnegan's current whereabouts. 14 Then the applicant with her clerk and Weatherly attended the Finnegan's residence where Weatherly identified Finnegan to the applicant. 15 On the applicant's account she placed a copy of the orders sought, which had been filed at GOSFORD Local Court on 7 December 2005 returnable on the 9 December 2005, on the ground near Finnegan. 16 She spoke to him stating, "you are being served", and then said "you have been served". Additionally she addressed Finnegan saying "you might need to read the documents as they contain evidence". 17 On the version of the applicant and her clerk it appears that Finnegan endeavoured to force documents into her hand and then attempted to place them under the windscreen wipers of her car, thereby damaging them. Finnegan was described as acting in a threatening manner by photographing the applicant and then jumping on the hood of her vehicle. Finnegan's actions could well have caused the applicant to feel alarmed and threatened. 18 Upset and frightened she returned to her office and reported the incident to Robert Corkhill, her husband, who also served as her office manager. 19 She accompanied Corkhill who proceeded to Finnegan's home, to remonstrate with him. Words were exchanged and some form of scuffle ensued. This was reported to the police by Corkhill. However, neither he nor Finnegan sought to press charges. 20 Clearly the service of documents effected on Finnegan occurred subsequent to her telephone conversation with Dixon earlier that day. Not only did she fail to raise the question of service in the course of her discussion with him, she made no effort to contact Dixon after she ascertained Finnegan's address and had determined to effect service herself. 21 Dixon made a complaint to the Law Society alleging numerous improprieties on the part of the applicant including her alleged breach of Rule 31.1 of the Law Society of NSW Practice and Professional Conduct Rules [Rule 31.1]. 22 The matter was referred to the Professional Conduct Committee (the P.C.C.) pursuant to s699 (3) of the Legal Profession Act 2004 (the Act), which relevantly provides: (3) The Law Society Council may delegate to any of its• committees, to an officer of the Law Society Council or to an employee of the Law Society the exercise of any of the Law Society Council's functions under this Act, other than this power of delegation..."