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..." 23 After investigation, most of Dixon's complaints were dismissed by the P.C.C. and it is unnecessary to detail the various acts of misconduct alleged and the reasons for their dismissal. Suffice it to say that lengthy correspondence passed between the Law Society, the applicant and the complainant which had to be considered and dealt with. 24 On 17/05/2007 the P.C.C. formed a preliminary view and raised this with the applicant and sought her submissions. She responded on 18/06/2007. 25 The complaint was further considered on 22/11/2007 and a finding was made of unsatisfactory professional conduct. 26 By letter of 6/12/2007 the Professional Standard's Department of the Law Society of NSW advised the applicant that in relation to the remaining complaints the Committee resolved that it was the satisfied that there is a reasonable likelihood that you would be found by the Tribunal to have engaged in unsatisfactory, professional conduct. The Committee's reasons are set out herewith: Unsatisfactory Professional Conduct The Solicitor: 27 On the afternoon of 8 December 2005, attended the home of the complainant's client to serve documents on him in circumstances where it was inappropriate for her to do so, as she was aware that the complainant was acting. The solicitor acted improperly when the complainant's client refused service, forcing his door open and throwing documents at him. These actions breach Rule 31 and were otherwise improper. 28 While the Committee cannot rely on the account given by Mr Finnegan of what occurred when the solicitor attended on his home to attempt to serve documents, the solicitor should not have made this attempt as she was aware that Mr Finnegan was represented and further she had already instructed a process server to attempt service. The solicitor has given no explanation as to why in the circumstances she did not ask the complainant if he had instructions to accept service or give further instructions to her process worker. The solicitor asserts that her action in serving Mr Finnegan as she did was dictated by necessity. As the solicitor had spoken to the complainant earlier during the day, there is no justification for her to attempt any communication with Mr Finnegan, much less attempt to serve him. The Committee is satisfied that the solicitor breached Rule 31 in relation to her direct dealings with Mr Finnegan on the afternoon of 8 December 2005. 29 The Committee further resolved to defer consideration of the ISSUES OF PENALTY [the Tribunal's emphasis] pending further communication with you regarding your willingness to attend a course in ethics. It is anticipated that the question of penalty will be considered when the Committee next meets on Thursday 13 December 2007. You are requested to telephone me about this matter as soon as possible. 30 The applicant responded to this letter on 11/12/2007 stating, "further to your letter of the 6 December 2007 I am willing to undertake to attend a course in ethics although I make no further admissions than I have in previous correspondence". 31 The Professional Standards Committee informed the applicant: Dear Ms Morris-Corkhill Re: Outstanding complaint by Paul Dixon On 13 December 2007 the Professional Conduct Committee of the Society considered your letter and undertaking dated 11 December 2007 as discussed in our telephone conversation of 10 December 2007. Having previously found that it was satisfied that there is a reasonable likelihood that you would be found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct as set out in my letter of 6 December 2007, the Committee noted that finding and your undertaking and resolved as follows: "RESOLVED that the Committee hereby reprimands the legal practitioner (Section 540(1) and (2)(b) of the Legal Profession Act, 2004. The Committee recommends to the Manager that such Ethics course be undertaken by personal attendance rather than online, that it be completed within 6 months of the date of the letter notifying the practitioner of this resolution and that she achieve a mark of 75 % or better." 32 Section 496 of the (the Act) provides: For the purposes of this Act: Unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 33 The P.C.C. acted pursuant to section 540 of the Act, which provides: (1) This section applies if: (a) either: (i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or (ii) the report of an independent investigator is given to the. Commissioner, and (b) the Commissioner or Council (as the case requires): is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and is satisfied that the practitioner is generally competent and diligent, and is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner. (2) The Commissioner or Council may do any or all of the following: caution the practitioner, reprimand the practitioner, make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, determine that a specified condition be imposed on the practitioner's practising certificate. (3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct. (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for a review of the decision. Note: reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729 A modifies the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal. (6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner. Rule 31 of the revised Professional Conduct and Practice Rules (the Rules) provides 31 — Communicating with another practitioner's client 31.1 A practitioner who is acting on behalf of a party in any proceedings or transaction must not communicate directly with any other party for whom, to the practitioner's knowledge, another practitioner is currently acting, unless — 31.1.1 notice of the practitioner's intention to communicate with the other party, in default of a reply from the other practitioner, has been given to that practitioner, who has failed, after a reasonable time, to reply; 31.1.2 the communication is made for the sole purpose of informing, the other party that the practitioner has been unable to obtain a reply from that party's practitioner, and requests that party to contact the practitioner; and 31.1.3 the practitioner, thereafter, notifies the other practitioner of the communication; Returning to the resolution of the P.C.C. it is to be noted that the Professional Conduct Committee "resolved to defer the consideration of the issue of PENALTY pending..." 34 The question of "penalty" was further referred to in ground 5 of the applicant's application for a review. 35 The references to Penalty were entirely inappropriate as neither the P.C.C. nor this Tribunal is concerned with the question of penalty. The function of the P.C.C. and this Tribunal is to ensure that appropriate orders are made which are designed to protect the public and to ensure that practitioners act with propriety and integrity. Members of the public are entitled to see that bodies with disciplinary functions act responsibly and make orders, which are designed to protect their interests and to ensure that members of the legal profession adhere to appropriate standards of conduct, which reflect honourable and ethical dealings. 36 Those enjoying the privileged and elevated status conferred on legal practitioners must faithfully comply with rules and standards of practice designed to protect the interests of the community and to engage in ethical conduct as would be expected of them by right thinking members of the profession. 37 Upon receipt of the Applicant's submission the complaint was again considered by the Committee on 22 November 2007. The Committee determined that it was satisfied that the Applicant would be found by the tribunal to have engaged in unsatisfactory professional conduct in respect of two matters raised in the complaint: 1)On the afternoon of 8 December 2005, attended the home of the complainant's client to serve document on him in circumstances where it was inappropriate for her to do so, as she was aware that the complainant was acting. The solicitor acted improperly when the complainant's client refused service, forcing his door open and throwing documents at him. These actions breach Rule 31 and were otherwise improper. 2)Subsequently caused her husband to attend at the complainant's client's home again in circumstances where to do so was improper. An unpleasant incident ensued, to which police were called. The solicitor was a witness to this incident which meant she was required pursuant to Rule 19 to cease acting for her client. She did not do so. 38 The Committee determined to defer further action in respect of the above allegation pending communication with the Applicant as to her "willingness to attend a course in ethics". 39 Pursuant to Section 540(5) the Applicant exercised her rights to apply to this Tribunal for a review of the decision to reprimand her. In considering the application for review the Tribunal must have regard to the provisions of s63 of the ADT Act, which provides: 63 Determination of review by Tribunal: (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: any relevant factual material, any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: to affirm the reviewable decision, or to vary the reviewable decision, or to set aside the reviewable decision and make a decision in substitution of the reviewable decision it set aside, or to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations to the Tribunal. The applicant's application was in the following form: GROUNDS FOR APPLICATION 40 The reasons I am seeking a review of the decision are: 41 Whether within the meaning of Rule 31 personal service of initiating process constitutes communication with the person being served. 42 Whether within the meaning of Rule 31 the practitioner breached Rule 31given the respondent's solicitor had declined to accept service and given the practitioner communicated with the respondent's solicitor within approximately 30 minutes of serving the respondent. 43 Whether the Council erred in finding that the practitioner was guilty of unsatisfactory professional conduct on the basis that it was inappropriate for the practitioner to serve the complainant's client personally in light of Rule 7.03 Family Law Rule 2004 (C'th) which requires special service of an Application for Final Orders and in the other circumstances of this case. 44 Whether the Council erred in finding that the practitioner was required pursuant to Rule 19 to cease acting for her client because her husband had spoken to the Police about the complainant's client in the circumstances that neither the practitioner nor the practitioner' s husband had pursued a complaint against the complainant's client. 45 Whether the Council's discretion miscarried. 46 With the leave of the Tribunal, whether in the circumstances of the case the practitioner breached Rule 31. 47 With the leave of the Tribunal, whether the penalty imposed is in proportion to the breach found. 48 With the leave of the Tribunal, whether the complaint should have been dismissed given the length of time which elapsed from the date of the alleged breach. 49 With the leave of the Tribunal whether Council erred in finding "an unpleasant incident ensued to which the Police were called" in the light of Mr Robert Corkhill's sworn evidence that he had rung the Police and spoken to them after returning to his office but that no complaint was made and there was no evidence before the Council that Police had attended at the scene of the incident. 50 Initially in this hearing before this tribunal the applicant was represented by counsel. She subsequently wrote advising that she had dispensed with the services of her counsel and would be representing herself. 51 Since that time she has inundated the registry and the Tribunal with letters containing further submissions, many of which were repetitive and which were not raised before in the hearing. 52 There is force in the respondent's submission that the series of questions raised in the application for the review does not constitute such an application. 53 Doing the best it can to understand the applicant's position, it appears to the Tribunal that she is seeking a review of the Decision that there was a reasonable likelihood that she would be found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct by reason of her breach of Rule 31 of the Rules, 54 She argued that she had not breached Rule 31 of the Rules, 55 She maintains that she should not have been reprimanded as per the resolution of the P.C.C. of 13/12/2007 and that some lesser order should have been made, 56 That she should not be required to undertake the ethics course recommended by the P.C.C. 57 It was further submitted that the Law Society had not adhered to the provision of Section 592 of the Act 2004 which states: 592 Duty to deal with complaints efficiently and expeditiously "It is the duty of Commissioner and Councils to deal with complaints (including any investigations) as efficiently and expeditiously as is practicable". 3 years is not sufficient or expeditious. This complaint was first made on the 14th of December 2005. Not on 14th of December 2006 as submitted by the Law Society. 58 Her proposition with regard to delay was inaccurate as it was not a three-year delay as she suggested. 59 This bare proposition was not supported by argument, evidence or submission. 60 It is to be remembered that the numerous complaints raised by Dixon were investigated and all but one were dismissed. 61 This tribunal does not consider it appropriate for it, to have to delve through the voluminous material tendered and formulate an argument on behalf of the applicant and then adjourn the matter further to seek a response from the respondent as to the matters so raised. 62 The principle argument advanced by the applicant was that she had not breached Rule 31 in that she had not "communicated" with another solicitor's client. 63 The Tribunal has resorted to various dictionaries to determine a definition of communicate as there is no such definition within the Rules. Collins English Dictionary defines communicate as to impart " knowledge" or exchange "thoughts, feelings, or ideas" by speech, writing, gestures etc. The Macquarie Dictionary defines communicate as: To give to another as a partaker; impart; transmit. To impart knowledge of make known. The New Shorter Oxford English Dictionary defines communicate as "impart", "transmit". The meaning of communication includes "the action of communicating … the transmission or exchange of information, news." 64 It was submitted that the mere service of documents does not amount to communication within the meaning to the rules. 65 It was further submitted that even if service of documents was such a communication that the rules provided that a practitioner must not deal directly with the opponent's client unless the practitioner believes on reasonable grounds that: (i) The circumstances are so urgent as to require the Practitioner to do so, and, (ii) The dealing would not be unfair to the opponent's client. 66 The applicant maintained that the relevant Family Law Rules required that Finnegan be served in person. There is no substance in this proposition. 67 There was no valid reason requiring the applicant to serve Finnegan by hand. Under such rules a person may be served by the delivery of a document by hand, however the rules further provide for service by post or electronic communication or, service upon that person's lawyer if he/she has undertaken in writing to accept service of the document. 68 The Tribunal does not accept the submission that the circumstances were so urgent as to require the applicant to personally deal with Dixon's client, Finnegan. She was aware that Finnegan's application had been adjourned and it is difficult to imagine that her application filed on 7 December 2005 was so urgent that it would have been dealt with on the 9th December 2005, it having been served on Finnegan on the afternoon of the 8th December 2005. 69 The Tribunal considers that the actions of the applicant in approaching Finnegan, serving him with documents and at the same time stating him "you are being served" and subsequently "you have been served" and then adding the advice "you might need to read the documents as they contain evidence" constituted a communication within the meaning of Rule 31. 70 The Tribunal has no doubt that the applicant, in full knowledge that Finnegan was represented by Dixon, deliberately and directly approached him to serve documents on him and then engaged in the dialogue referred to. 71 This was not the case of a solicitor having refused to accept service. It is the Tribunal's view that the applicant surreptitiously approached Finnegan well knowing that Dixon was in complete ignorance of her intentions. 72 She had every opportunity to request Dixon to accept service but for reasons not disclosed to this Tribunal, she elected not to do so and in effect, kept him in the dark as to her intentions. 73 She was well aware that Finnegan was not accepting service and she foisted the documents upon him. 74 Had the applicant approached Dixon in a conventional and appropriate manner and requested him to accept service or to seek instructions in this regard it may well be that Dixon would have complied with such a request. 75 If the applicant held some genuine belief in the urgency of the matter, then all the more reason for her to have approached Dixon in an appropriate fashion, with regards to him accepting service. 76 The applicant effected service on Finnegan at his home. As to why a process server could not have been further engaged to serve him, has not been explained. 77 The applicant has not satisfied the Tribunal that she believed on reasonable grounds that the circumstances were so urgent as to require her to communicate with Finnegan, as she did. 78 The Tribunal considers that the P.C.C. was correct, in its finding that there was a reasonable likelihood that the applicant would he found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct and that its resolution to reprimand the applicant was correct and appropriate. 79 However, with regard to the committee's recommendation, attached to the resolution to reprimand, "… The Committee recommends to the Manager that such Ethics course be undertaken by personal attendance rather than online, that it be completed within 6 months of the date of the letter notifying the practitioner of this resolution and that she achieve a mark of 75% or better..." 80 The Tribunal does not consider that there is any statutory warrant for such recommendation. 81 The powers of the council as represented by the P.C.C. are as contained in s540(2) of the Act: (2) The Commissioner or Council may do any or all of the following: a)Caution the practitioner, Reprimand the practitioner, Make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, Determine that a specified condition be imposed on the practitioner's practising certificate. 82 True it is that the applicant undertook to complete an ethics course, however, she was under no obligation to do so. Presumably she gave an undertaking under the implied threat that a "Penalty" was being considered. THE TRIBUNAL'S FINDINGS AND DECISION. 83 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. 84 It further finds that the Applicant is under no obligation to undertake an ethics course as recommended by the P.C.C. 85 Having reviewed the decision to the P.C.C to reprimand the applicant, the Tribunal confirms such reprimand. The Applicant stands reprimanded. 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.