CITATION: Council of the Law Society of NSW v Treanor [2009] NSWADT 115 DIVISION: Legal Services Division APPLICANT Council of the Law Society of NSW PARTIES: REPSONDENT Laurence John Treanor FILE NUMBER: 092001 HEARING DATES: 27 April 2009 SUBMISSIONS CLOSED: 27 April 2009 DATE OF DECISION: 20 May 2009 BEFORE: Haylen W - J (Deputy President); Barnes M - Judicial Member; Bennett C - Non-Judicial Member CATCHWORDS: Legal Profession Act 2004 - s 660 - failure of practitioner to comply with terms of notices issued pursuant to s 660 - no appearance before Tribunal by practitioner - evidence establishes failure to comply with notices - no reasonable excuse evident - failure to comply with notices constitutes professional misconduct - previous record of non-compliance with notices issued by an investigator - fine imposed - practitioner not to be issued with a practising certificate until compliance with notices - costs LEGISLATION CITED : Legal Profession Act 2004 Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 750 Laurence John Treanor (1998) NSWLST 7 CASES CITED: Law Society of New South Wales v Knudsen (No 2) [2006] NSWADT 245 Law Society of New South Wales v Knudsen [2006] NSWADT 49 Law Society of New South Wales v Treanor (2005) NSWADT 285 APPLICANT L Pierotti, Solicitor REPRESENTATION: RESPONDENT No appearance (a)Laurence John Treanor is found guilty of professional misconduct in relation to his failure to comply with notices issued under s 660 of the Legal Profession Act 2004 ORDERS: (b)Laurence John Treanor shall not be issued with a practising certificate until such time as there is compliance with the s 660 notices particularised in Matter ADT No 092001 (c)Laurence John Treanor is fined the sum of $6.000 to be paid within a period of sixty (60) days from the date of this Decision (d)Laurence John Treanor is to pay the costs of the applicant in the sum of $2,000.00. REASONS FOR DECISION 1 On 19 January 2009 the Council of the Law Society of New South Wales applied for an original decision under the Legal Profession Act 2004. In that application the orders sought were that the respondent practitioner, Laurence John Treanor, not be issued with a practising certificate until such time as Notices issued under s 660 of the Legal Profession Act 2004 were complied with; that a fine be imposed; and, that the respondent practitioner pay the costs of the proceedings. The application arose in relation to three separate matters where an investigator had required the respondent practitioner to provide certain information and documents under s 660 of the Legal Profession Act and the respondent practitioner, without reasonable excuse, had failed to comply with that requirement in each matter and had failed to assist the investigator in the investigation of a complaint. The Council alleged that the respondent practitioner was thereby guilty of professional misconduct. 2 The grounds and particulars accompany the application were in the following terms: Particulars of Grounds of Complaint A Bassal Complaint 1. By letter dated 30 November 2007 the Legal Services Commissioner referred to the Law Society of New South Wales ["the Society"] for investigation of a complaint by Mr Abdullah Bassal against Laurence John Treanor ["the Solicitor"] ["the Bassal complaint"]. 2. After initial enquiries by the Society, the Bassal complaint was referred to the Solicitor by letter dated 13 February 2008 from the Society. 3. By letter from the Society to the Solicitor dated 6 March 2008 it was noted that there had been no response from him and that a Notice pursuant to Section 660 of the Legal Profession Act 2004 would be issued. 4. On 18 march 2008 Mary Agnes Young ["Mrs Young"], who had conduct of the investigation of the Bassal complaint and in the exercise of the powers given to her by Section 660 of the Legal Profession Act, 2004 issued a Notice to the Solicitor ["the first Notice"] which required the Solicitor to provide to her, verified by Statutory Declaration, certain information and to produce to her certain documents. 5. The first Notice provided, in part: If you LAURENCE JOHN TREANOR are unable to comply with the preceding requirement, you must provide a statutory declaration to me on or before twenty-one days after service of this notice stating the reasons for your inability to so comply". 6. The first Notice was personally served on the Solicitor on 22 March 2008. 7. The requirements of the first Notice were required to be complied with "on or before the twenty-first day" after service of the Notice. 8. The Solicitor has failed to comply with the requirements of the First Notice. 9. The Solicitor has failed to provide any Statutory Declaration or other response stating any reason(s) for his inability to comply with the first Notice. B Law Society Complaint 10. On 2 August 2007 a complaint was made against the Solicitor ["the Law Society complaint"]. 11. The law Society complaint was referred to the Solicitor by the Society's letter dated 8 August 2007. 12. By letter dated 27 August 2007 the Solicitor acknowledged receipt that day of the Society's letter of 8 August 2007 and requested a period of 14 days in which to respond. 13. By letter from the Society dated 30 August 2007 the Solicitor's request for further time in which to respond was acceded to. 14. By letter from the Society dated 8 November 2007 the Solicitor was written to and therein it was noted that no response had been received from him to the Law Society complaint. 15. On 20 November 2007 the Solicitor, by telephone conversation, advised that he had not received the letters from the Society of 30 August 2007 and 8 November 2007. The Solicitor was given until 5 December 2007 by which to respond to the Law Society complaint. 16. By letter from the Society to the Solicitor dated 21 November 2007, sent by registered post, the further extension granted to the Solicitor was confirmed. 17. By letter dated 4 December 2007 the Solicitor, in essence, admitted to the breach and advised that he was seeking assistance with respect to the requirements which had been placed upon him by a Trust Account Inspector. 18. By letter from the Society to the Solicitor dated 6 December 2007 receipt of the Solicitor's letter of 4 December 2007 was acknowledged. 19. The Solicitor did not, as he had indicated in his letter of 4 December 2007 that he would do, telephone Mrs Young to further discuss the matter. 20. By letter dated 8 January 2008 the Solicitor was written to and, in part, it was recorded that he had not telephoned Mrs Young as he had indicated he would do. 21. By letter from the Society to the Solicitor dated 9 January 2008 the Solicitor was written to and further information was requested of him. 22. By letter from the Society dated 30 April 2008 the Solicitor was written to and therein it was noted that as a result of his failure to provide the requested information, a Notice pursuant to Section 660 of the Legal Profession Act, 2004 would be issued. 23. On 13 May 2008 Mrs Young, in the exercise of the powers given to her by Section 660 of the Legal Profession Act, 2004 issued a Notice to the Solicitor ["the second Notice"] which required the Solicitor to provide to her, verified by Statutory Declaration, certain information and to produce to her certain documents. 24. The second Notice provided, in part: If you LAURENCE JOHN TREANOR are unable to comply with the preceding requirement, you must provide a statutory declaration to me on or before twenty-one days after service of this notice stating the reasons for your inability to so comply". 25. The second Notice was personally served on the Solicitor on 20 Mary 2008. 26. The requirements of the second Notice were required to be complied with 'on or before the twenty-first day' after service of the Notice. 27. The Solicitor has failed to comply with the requirements of the second Notice. 28. The Solicitor had failed to provide any Statutory Declaration or other response stating any reason(s) for his inability to comply with the second Notice. C Stavrinou Complaint 29. By letter dated 27 April 2007 the Legal Services Commissioner referred to the Society for investigation a complaint made by Mr C (Harry) Stavrinou. 30. The complaint was raised with the Solicitor by telephone conversation on 4 May 2007. 31. By letter dated 7 May 2007 the complaint was informally referred to the Solicitor. It was referred to the Solicitor on a formal basis under cover of letter dated 14 August 2007. 32. By letter dated 14 January 2008 to the Solicitor it was noted that there had not been a response to the complaint and a request was made for a response within 14 days. 33. By letter dated 30 April 2008 to the Solicitor it was, in part, again noted that there had not been a response from him to the complaint. 34. On 19 May 2008 Mrs Young, in the exercise of the powers given to her by Section 660 of the Legal Profession Act, 2004 issued a Notice to the Solicitor '"the third Notice"] which required the Solicitor to provide to her, verified by Statutory Declaration, certain information and to produce to her certain documents. 35. The second Notice provided , in part: If you LAURENCE JOHN TREANOR are unable to comply with the preceding requirement, you must provide a statutory declaration to me on or before twenty-one days after service of this notice stating the reasons for your inability to so comply. 36. The third Notice was personally served on the Solicitor on 27 May 2008. 37. The requirements of the Third Notice were required to be complied with 'on or before the twenty-first day' after service of the Notice. 38. The Solicitor has failed to comply with the requirements of the third Notice. 39. The Solicitor has failed to provide any Statutory Declaration or other response stating any reason(s) for his inability to comply with the third Notice. 3 The application by the Council was listed by the Tribunal for Directions on 4 March and 1 April 2009 but on each occasion the respondent practitioner did not appear. The respondent practitioner did not file a reply. At the hearing the respondent practitioner again did not appear but apparently had a telephone conversation with the Council's representative on the morning of the hearing. At the time of hearing no reply had been filed and the Tribunal had no information from the respondent practitioner regarding the alleged conduct or any reason why there had been a failure to comply with the notices. 4 Having regard to the failure of the respondent practitioner to appear before the Tribunal it was concluded that the available evidence before the Tribunal established that: (a) the respondent practitioner was served with a copy of the application and the supporting affidavit of Raymond John Collins sworn on 12 January 2009 (together with numerous annexures); (b) the respondent practitioner was notified of the Directions hearings held on 4 March 2009 and 1 April 2009 and had been notified of the hearing to take place on 27 April 2009; (c) the respondent practitioner had been served with each of the notices under s 660 of the 2004 Act and had been required to provide information, produce information and to otherwise assist and co-operate with the investigation of the complaints identified; (d) That Mrs Young had been appointed by the Council of the Law Society of New South Wales as an investigator at the relevant time in relation to each notice issued. Having been satisfied of these matters, the Tribunal was of the view that it was proper and appropriate to proceed ex parte with the final hearing of the matter. 5 As can be seen from the particulars, the three complaints were raised in April, August and November 2007. The complaint concerning Bassal involved the following alleged conduct: a failure to carry out the complainant's instructions to attend to recovery of costs awarded and for which a certificate under the Costs and Criminal Cases Act 1967 had been given in July 2005; a refusal to issue receipts for funds paid or to acknowledge receipts of funds; lying to the complainant concerning actions taken on his behalf in relation to his claim for the recovery of costs from the Attorney General's Department; and, improperly requesting that funds be paid into an account in his wife's name for the purpose of taxation evasion. The Council's investigator requested a response to these allegations be forwarded together will all the files in relation to the matters referred to and to do so within fourteen days of the date of the request. Having received no response a notice was issued pursuant to s 660 of the Legal Profession Act. There was no further response to the notice. 6 The August complaint raised by the Council of the Law Society arose in respect of the respondent practitioner's failure to respond to correspondence received from an investigator. The complaint was the failure to comply with a requirement under s 659 of the Legal Profession Act 2004. In relation to this matter there was some response from the respondent practitioner who said he was experiencing difficulties with mail delivered to his post office box. He requested and was granted additional time to respond to the complaint but still no response was received. In late November 2007, in a telephone conversation with a representative of the Council, the respondent practitioner advised that he was still having difficulty with his post office box and he had other court engagements and he needed further time to respond - he was given further time. On 4 December 2007 the respondent practitioner wrote to the Law Society of New South Wales Professional Standards Department admitting a failure to respond to the correspondence from the investigator and the respondent practitioner offered an explanation of how certain cheques came to be dealt with and admitted that, in one matter, he had not rendered a memorandum of fees. During a routine investigation he realised that he had erred in not rendering an account and admitted that he gave a false explanation for the two transactions which was obviously wrong. He was seeking assistance in an attempt to deal with his communication problems and he undertook to contact the investigator within a few days. No such response was forthcoming and on 9 January 2008 a request was made for certain information and by 30 April 2008 there had been no response. At that time the respondent practitioner was issued with a further notice pursuant to s 660 of the Act. By November 2008 the Law Society of New South Wales had issued three notices pursuant to s 660 of the Act to which the respondent practitioner had failed to comply. 7 The Stavrinou complaint involved a cash payment in the amount of $360 which was alleged had not been accounted for by the respondent practitioner. There were unsuccessful attempts by the Society to informally resolve the matter. The respondent practitioner was then advised that there was a complaint that he had failed to account for the sum of $360 to the complainant and had charged the complainant fees in excess of those agreed. It was alleged that the agreement was for total fees in the sum of $900. In May 2008 a notice under s 660 of the Act was served on the respondent practitioner. No responses were received by the Society. 8 On the issue as to compliance with each notice, the evidence before the Tribunal establishes: (a) That the respondent practitioner was notified of the terms of the complaints and the issues raised in those complaints; (b) that the respondent practitioner was given an opportunity to respond to those complaints and ultimately notices pursuant to s 660 of the Act were served in furtherance of the investigation of the complaints; (c) that the terms of the notices served under s 660 were sufficiently clear to indicate the matters that were to be produced or the information to be provided; (d) that there was a general request for the respondent practitioner to assist or co-operate with the investigation of the complaint; (e) that the requirements imposed by the notices served on the practitioner under s 660 were in writing directed to the respondent practitioner and specified a reasonable time for compliance having regard to the nature of the matters referred to in those notices; (f) the respondent practitioner had, at no time, complied with the requirements of each such notice. 9 It is to be noted that s 660(1) of the Act authorises the requirement to provide information to an investigator for the purpose of carrying out a complaint investigation. Under s 660(3) persons subject to a requirement, in this case under sub-section 1, must comply with that requirement and a penalty may be imposed for breach of that provision. It can be seen that s 660 plays an important role in the proper investigation of complaints against members of the legal profession. The evidence before the Tribunal establishes those matters alleged in the particulars of the application filed by the Council of the Law Society of New South Wales . Having regard to the purpose of s 660 and notices issued pursuant to that provision and the failure of the respondent practitioner to supply the information requested or co-operate in the investigation of these three separate complaints, the Tribunal is comfortably satisfied that those failures amount to professional misconduct. 10 At the conclusion of the submissions for the Council regarding the evidence in support of the application, the Tribunal announced that it was satisfied that in each of the three matters there had been a breach of s 660 by the failure of the respondent practitioner to provide specified information and documents and also a failure to co-operate in the investigation of each complaint and that such conduct amounted to professional misconduct. Submissions were then received on penalty. It was drawn to the Tribunal's attention that the respondent practitioner had previously been called before the Tribunal and predecessor Tribunal (the Legal Services Tribunal). In Laurence John Treanor (1998) NSWADT 7 it was noted that, in the solicitor's "frank admissions in his oral evidence", he had stated that there was no rational excuse for his failures to respond to a notice issued by the Law Society. The only explanation offered was that, at the relevant time, he was experiencing financial and other difficulties in the conduct of his practice which caused him to adopt an admittedly "head in the sand" attitude to correspondence from the Law Society. He admitted that he had received many letters from the Society and had simply put them aside and that correspondence had extended over many months. The Tribunal was then dealing with similar provisions applying under s 152 of the 1987 Act where sub-section 4 provided that a legal practitioner who, without reasonable excuse, failed to comply with the requirements of a notice was guilty of professional misconduct. In that matter the solicitor was reprimanded and was ordered to pay the Society's costs in the agreed sum of approximately $8,500. 11 In the Law Society of New South Wales v Treanor (2005) NSWADT 285 there were a number of allegations including a failure, without reasonable excuse, to comply with notices issued in July 2001 and January 2003 under s 152 of the 1987 Act. In that case the respondent practitioner admitted the failure to comply with the s 152 notices and offered as an excuse the fact that he no longer had the relevant instruction files. This was regarded as a belated attempt to explain the failures to comply with the notices but the Tribunal pointed out that, even without the files, he was able to respond by providing such information that he was able to recall to assist the investigation. There was evidence of a medical condition suffered by the respondent practitioner and how it had affected his capacity to undertake tasks associated with his practice and how that condition had since been medically addressed such that he was fit to continue in practice. In relation to the failure to respond to the notices served upon him the Tribunal stated at [18]: This Tribunal has previously stated its view that the Legislature intended solicitors to fully and speedily respond to requests for information in the complaint investigation process, and underscored the seriousness of the failure to do that by creating the statutory offence. Legal Services Commissioner v Browne [2004] NSW ADT 63 and Law Society v Kekatos [2005] NSW ADT 79. 12 It was also noted at [23] that the notices remained unanswered in late 2005 even though they were dated July 2001 and January 2003. It was further noted that the respondent practitioner had previously appeared before the Tribunal in respect of a failure to comply with a statutory notice. The respondent practitioner's failures were regarded as "very serious" and had it not been for the excuse of his acknowledged ill health, the Tribunal would have classified the failures as "extremely serious". 13 There were other serious breaches found by the Tribunal, some considered more serious than the breach of s 152 and the Tribunal further noted that, had it not been for the respondent practitioner's ill health it would have been inclined to more strongly indicate its disapproval of his inaction. The Tribunal ordered that the respondent practitioner be publicly reprimanded, that he pay a fine of $7,000, that the Council of the Law Society be at liberty to then suspend any practising certificate held by the respondent practitioner if the fine was not paid on time and that the respondent practitioner pay the Society's costs. These orders covered two significant matters raised against the practitioner and were not limited to the failure to respond to the s 152 notices. The Tribunal noted that the solicitor's conduct in breaching undertakings was "even more serious" than his failure to comply with s 152 Notices. 14 It is significant that this is the third time that the respondent practitioner has been brought to the Tribunal for failure to comply with notices issued by investigators in relation to their investigation of a complaint. In the present matter the conduct of the respondent practitioner is aggravated by his failure to file a reply to the application and his failure to appear before the Tribunal to assist the Tribunal in determining the context in which these breaches occurred. The present proceedings indicate a continuing attitude of the respondent practitioner to ignore his obligations under the Act and to impede the proper investigation of complaints. Regardless of the particulars of the individual matters, such as the failure to properly account for $360, these relevantly minor issues cannot be allowed to cloud the fact that the failure to comply with s 660 notices is a very serious breach of a practitioner's obligations under the Act 15 In dealing with these issues the Tribunal's attention was drawn to the decision of the Law Society of New South Wales v Knudsen (No 2) [2006] NSWADT 245. In that case the practitioner was found guilty of professional misconduct for failing to comply with s 152 notices issued under the 1987 Act. At paragraph [25] and [26] of the decision, the Tribunal referred to the role of s 152 and its importance in the investigative process, stating: [25] Mr Pierotti relied on the explanation of s 152 given by the Tribunal in NSW Bar Association v Howen [2003] NSWADT 117 at [26]. This was to the effect that the chief purpose of the section was to protect the public by ensuring that disciplinary measures were as effective as possible, thereby maintaining 'the highest achievable standards of professional conduct'. He referred also to the Tribunal's statement, at [40], that a legal practitioner ought to know that the purpose of Part 10 of the LP Act (in which s 152 is to be found) is 'to benefit the legal profession as well as the public'. The Tribunal then added:- Although s 152 contains a sanction to encourage compliance, its primary purpose is not to create the circumstances in which legal practitioners may be found guilty of professional misconduct, but to facilitate investigations. [26] In a passage in NSW Bar Association v Howen (No 2) [2003] NSWADT 235 on which Mr Pierotti also relied, the Tribunal said, at [23]:- Notwithstanding mitigating factors, failure to comply with a notice under section 152 of the Act is professional misconduct. A section 152 Notice is an important device for assisting the Councils and the Commissioner to investigate and resolve complaints against practitioners. Failure to comply with a notice may frustrate an investigation or make the investigation more difficult, time consuming and costly. We cannot deal with failure to comply with a section 152 notice as (if) the failure were a trivial matter. Those observations as to the purpose of such notices and the seriousness of a failure to comply with such notices applies directly to the same process conducted under s 660 of the 2004 Act. 16 Having concluded on the material before the Tribunal that there was no reasonable excuse for failing to comply with the s 660 notices, the provisions of ss 676(3) and (4) are applicable. Under these provisions an Australian lawyer who is subject to a requirement under s 660 must not, without reasonable excuse, fail to comply with the requirement and an Australian lawyer who contravenes sub-section 3 is, by sub-section 4, guilty of professional misconduct. It follows from the Tribunal's findings that the respondent practitioner is therefore guilty of professional misconduct. It might be added that, having regard to the repeated breaches of this type of provision, the Tribunal would also be satisfied that the respondent practitioner was guilty of misconduct at common law as described in the case law commencing with Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 750. This finding is open notwithstanding the interesting analysis conducted in Law Society of New South Wales v Knudsen [2006] NSWADT 49 at paragraph [57] to paragraph [67]. 17 In relation to the orders sought by the Council of the Law Society, having regard to the nature of the breaches and the fact that the respondent practitioner is not currently the holder of a practising certificate, it appears that there is a protective nature to be discerned about the first order sought, namely, that the respondent practitioner not be issued with a practising certificate until such time as the notices are complied with. That order appears to be completely justified in the circumstances of the case. In relation to the application for a fine to be imposed, the Tribunal acknowledges the force of the discussion that is sometimes warranted about the utility of a fine but in the present case, in view of the respondent practitioner's record and repeated failure to comply with notices and his record of being fined in relation to a combination of other matters and a failure to comply with notices, it appears to the Tribunal that a further fine is warranted in the circumstances of this case. That fine should operate as a warning signal to the legal profession regarding compliance with s 660 notices and the need to co-operate with investigators no matter how apparently minor the matter under investigation. Every failure to comply with a notice without reasonable excuse is deemed by the Act to be professional misconduct. It is to be noted that the previous fine of $7,000 involved two categories of professional misconduct with the failure to comply with s 152 notices under the 1987 Act being regarded at the lesser offence. In that case a mitigating factor was the respondent practitioner's state of health but at the hearing the Tribunal was satisfied that he was fit to continue practice. In the present matter the Tribunal has no mitigating evidence or any evidence at all from the respondent practitioner. Having regard to all those matters, a fine of $6,000 should be imposed. In relation to costs, the applicant has informed the Tribunal that those costs can be properly accommodated by an order for the payment of $2,000. In the absence of any indication of the existence of exceptional circumstances or any indication to the contrary, the applicant is entitled to the costs of the proceedings and a costs order in the sum of $2,000 appears to be a reasonable assessment. Orders 18 Having regard to the above considerations, the Tribunal makes the following orders: (a) Laurence John Treanor is found guilty of professional misconduct in relation to his failure to comply with notices issued under s 660 of the Legal Profession Act 2004 (b) Laurence John Treanor shall not be issued with a practising certificate until such time as there is compliance with the s 660 notices particularised in Matter ADT No 092001 (c) Laurence John Treanor is fined the sum of $6.000 to be paid within a period of sixty (60) days from the date of this Decision (d) Laurence John Treanor is to pay the costs of the applicant in the sum of $2,000.00. 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.