The Legal Services Tribunal of New South Wales CITATION : Anthony William Oliver [1993] NSWLST 18 PARTIES : ANTHONY WILLIAM OLIVER FILE NUMBER(S) : of 1992 CORAM: Mr C. Robison (Presiding Member) - Mrs J. Bartos - Mr P. Boesenberg Professional Misconduct - breach of s. 61 of the Legal Profession Act - Unsatisfactory Professional Conduct - mislead Law Society/Bar Association/LSC :- wilfully contravened Section 61 of the Act breached his personal undertaking CATCHWORDS: and engaged in misleading conduct Section 163 of the Act LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 10/22/1993 Mr D. Hipsley (Instructed by Mr Martin Watts, Solicitor) appeared on behalf of the Council of the Law Society of New South Wales. LEGAL REPRESENTATIVES: Mr David De Carvalho, solicitor, of Carroll & O'Dea, appeared on behalf of Mr Oliver. JUDGMENT: By a letter dated 17 September 1992 addressed to the President of the Law Society of New South Wales, Mrs Carmel Therese Seymour of Tamworth lodged a complaint against Mr Anthony William Oliver (the Solicitor"). In that letter (which was not received by the Solicitor until 7 October or by the Law Society until 9 October 1992) Mrs Seymour was critical of certain payments allegedly made by the Solicitor from an investment account number 020 261 101 with the St George Building Society (as it then was) in the joint names of Mrs Carmel Therese Seymour and her husband Mr Paul Seymour ("the Account"). It was common ground that the Solicitor acted for Mr Seymour and that the Account constituted "controlled money" for the purposes of Section 61(8) of the Legal Profession Act 1987 ("the Act"). On or about 6 November 1992, the Professional Standards Department of the Law Society referred Mrs Seymour's complaint to the Trust Account Inspection Department. Mr Warren Gillett of that department then inspected a number of the Solicitor's files and conducted several interviews before providing a six page report to the Chief Trust Account Inspector on the 23 November 1992. (This report appears as Annexure "A" to the Statutory Declaration of Frederick John Smith declared on 23 June 1993). Earlier that month (on 12 November) the Solicitor had written to the Law Society conceding that he was in breach of Section 61 of the Act. At a meeting of the Council of the Law Society of New South Wales ("the Complainant") held on the 25 March 1993, the Complainant formed the view that the solicitor might be guilty of professional misconduct and resolved to make a complaint to this Tribunal under Section 135 of the Act. On the 23 June 1993 the Complainant filed and then served a complaint ("the Complaint") seeking an order that the solicitor be reprimanded with no monetary penalty on the basis that the solicitor had: [] wilfully contravened Section 61 of the Act, [] breached his personal undertaking, and [] engaged in misleading conduct. The Complaint first came before Acting Registrar Gould on the 27 July 1993, and again on the 13 September 1993. On the latter occasion, Mr Watts and Mr de Carvalho foreshadowed the filing of a Notice of Agreement under Rule 13 of the Disciplinary Tribunal Rules 1990 ("Rule 13"). On or about 14 September 1993, Mr Watts and Mr de Carvalho filed a Notice of Agreement under Rule 13 giving notice of their agreement to settle the Complaint on four agreed terms, but significantly the Complaint was not withdrawn. Those terms were:"1. The Solicitor acknowledges the truth of the Particulars and the Further Particulars to the Complaint filed herein.2. Other than in respect of the matters referred to in the complaint, the Complainant does not dispute the Solicitor's good character, integrity, competence and devotion to duty.3. The Solicitor accepts a reprimand from the Complainant for the reasons set out in the Particulars to the Complaint filed herein.4. The Solicitor pay the Complainant's costs agreed at $500.00 within three months." The Complaint came before the Tribunal for hearing on Wednesday, 13 October 1993, and at that time we had a clear duty to hear it because of the mandatory provisions of Section 157(1) of the Act. In discharging that duty, the Tribunal had a threshold difficulty to overcome. The Notice of Agreement filed in the Tribunal on the 14 September 1993 signed on behalf of the parties contained an express acknowledgment and acceptance by the Solicitor of the particulars and the further particulars contained in the Complaint. Those particulars recited wilful contravention of Section 61 of the Act. These unqualified admissions by the Solicitor triggered the provisions of Section 61(7) of the Act which provides:"A wilful contravention of subsection (1) is professional misconduct" Now, Section 163(1) of the Act provides (relevantly) that: "If after it has completed a hearing into a complaint against legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct, the Tribunal may (a) order that the legal practitioner's practising certificate be cancelled; (b) order that a practising certificate not be issued to the legal practitioner until the expiration of such period as it may specify in the order; (b1) if the legal practitioner is a solicitor, order that the practising certificate of any associated solicitor corporation be cancelled or that a practising certificate not be issued to any associated solicitor corporation until the expiration of such period as it may specify in the order; (c) order that the name of the legal practitioner be removed from the roll of barristers or the roll of solicitors, as the case may be; or (d) order that the legal practitioner pay a fine of such amount (not exceeding $25,000) as it may specify in the order, or may do any combination of those things." The Tribunal is therefore substantially constrained in dealing with the Complaint. Once the Complaint came on for hearing, with admissions of professional misconduct by the Solicitor, the Tribunal could only resort to the powers set out in Section 163(1) of the Act. Significantly, those powers do not include a power to issue a reprimand. In our opinion, Rule 13 cannot possibly operate to allow the Complainant and the Solicitor to pre-empt the express provisions of Section 163 of the Act. Rule 13 cannot possibly empower this Tribunal to authorise or sanction some consensual reprimand between the Complainant and the Solicitor. Even though it was not seriously argued before us, we do not believe that the provisions of Section 163(6)(a) of the Act overcome the problem. That subsection provides (relevantly) that once the Tribunal has made a finding of professional misconduct it may additionally make "ancillary orders". Issuing a reprimand would not in our opinion be an ancillary order for the purposes of that sub-section. After a short adjournment, Mr Hipsley submitted that unsatisfactory professional conduct may properly be subsumed by professional misconduct and invited us to fall back onto the category of unsatisfactory professional conduct and issue a reprimand. Mr Hipsely conceded that he was not aware of any authority supporting this proposition, and we did not accept it. Mr de Carvalho then tendered some 16 statutory declarations, commenting on the antecedents and character of the Solicitor. Significantly, each of the 16 declarations contained as an annexure a copy of the Complaint such that each declarant was fully aware of the gravity of the allegations made concerning the Solicitors' conduct. Ten of those declarations were from solicitors living and carrying on practice in Tamworth, and four were from solicitors living and carrying on practice in other large rural towns. One declaration was from a member of the Bar and the other was a combined reference and medical report from Dr Alex Levendel, consultant physician and cardiologist. These declarations were uniformly commendatory of the Solicitor's character. There was a common thread of deep respect for, and admiration of, Mr Oliver as a legal practitioner and as a person. Again significantly, several declarants made it plain that they would accept undertakings from Mr Oliver, without qualification, in the future. Mr Hipsley accepted these declarations on behalf of the Complainant, and elected not to cross-examine. The essence of the Complaint comes down to this:In December 1991, the Solicitor released approximately $833 to each of his client Mr Seymour and to Mrs Seymour as a 50/50 division of interest accrued on the Account. On 7 January 1992, when acknowledging receipt of her share of the interest through her solicitors, Mrs Seymour specified that there were to be no further payments from the Account without her consent until the family law proceedings between Mr and Mrs Seymour had been concluded. These specific directions from Mrs Seymour were repeated in another letter from her solicitors on 2 March 1992. Notwithstanding those directions, the Solicitor made four payments from the Account of approximately $273 each. These payments were made to Tamworth City Council and represented payment of one year's local government rates and charges on a property at Yarmouth Parade owned by Mr and Mrs Seymour. Neither Mrs Seymour nor the Complainant made much in relation to those four payments. Of much greater significance was a payment from the Account of $2,508.46 made to Mr Seymour on or about 10 April 1992, and another payment from the Account of $10,500 made on or about 31 August 1992 to Ian Eveleigh Motors to conclude the purchase of motor vehicle by Mr Seymour. Apparently, the $2,508.46 was applied to the purchase of a washing machine, refrigerator and electrical appliances for the use of Mr Seymour in his new accommodation. Neither of the payments of $2,508.46 and $10,500 was approved unconditionally by Mrs Seymour before payment. There was evidence before us that Mrs Seymour gave a conditional agreement to the release of $10,500 from the Account to complete the purchase of the motor vehicle provided that $7,424 was simultaneously paid from the Account to Mrs Seymour. The $7,424.00 was not in fact paid at that time. As a related issue, the Solicitor allegedly gave either one or two undertakings to Mrs Seymour and her legal advisors that monies would not be paid from the Account without her prior knowledge and consent. The Complainant relied upon the Notice of Agreement and therefore did not at the hearing seek to establish the precise terms of this undertaking or undertakings, to whom they were given and in what form. However, in one of several material concessions made by the Solicitor, he conceded through Mr de Carvalho that an undertaking was given in the December 1991/January 1992 period, and again in August 1992 to the general effect that no money would be disbursed from the Account without the consent of both parties. The evidence shows, and the Solicitor concedes, that these undertakings were not honoured and that the Solicitor misled Ms Annette Watson (Mrs Seymour's then solicitor) in a telephone conversation on or about 2 September 1993. In these circumstances, the Tribunal will accept paragraphs 1, 2 and 4 of the Notice of Agreement filed on 14 September this year. In considering a penalty, we have been mindful of the strong character evidence marshalled by the Solicitor and by the telling submissions made by Mr de Carvalho. This is a sad case of a senior practitioner, with a distinguished history of legal practice and community involvement, who had his judgment overborne in the course of what he himself describes as a "spiteful and distasteful" divorce dispute. He neither sought, nor received, any personal gain. Neither Mr Seymour nor Mrs Seymour was in any way ultimately disadvantaged. Indeed, the payment of $10,500 was to permit Mr Seymour to obtain a motor vehicle so that he could travel to a course of TAFE education. Mr de Carvalho submitted, and we accept, that the $10,500 and the $2,508.46 were monies to which Mr Seymour was demonstrably entitled. Mr Oliver approached the Law Society of his own initiative immediately he became aware of the criticisms expressed by Mrs Seymour and did not wait for the Law Society to initiate contact with him. It would appear that he was open and honest, and co-operated constructively, with trust account inspector Gillett and with Mr Watts. The Solicitor made a number of important concessions which spared the Complainant time and money and which shortened the time which this Tribunal was required to devote to a resolution of the Complaint. Mr Oliver conducted himself professionally and with dignity. In short, we accept the submission of Mr de Carvalho that the conduct on the part of Mr Oliver was a "one-off" from which he derived no benefit and which resulted in no loss to any other person. Nonetheless, it was conduct amounting to professional misconduct, and the Solicitor should be fined. Finally, we formally record our frustration with Section 163 of the Act in its present form. It is, in our view, long overdue for legislative amendment. Specifically, it should permit this Tribunal to issue a reprimand to a legal practitioner as a specific order once a finding of professional misconduct has been made. The Tribunal therefore orders that:1. The Solicitor pay a fine of $500 within three months of the date of this order; and 2. The Solicitor pay $500 to the Complainant or to its solicitor Frederick John Smith on account of the Complainant's costs within three months of the date of this order. 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.