Delphine Dwyer v Law Society of New South Wales [2000] NSWSC 592

New South Wales Supreme Court

CITATION : Delphine Dwyer v Law Society of New South Wales [2000] NSWSC 592 FILE NUMBER(S) : SC 30081/99 HEARING DATE(S) : 27 June 2000 JUDGMENT DATE : 29 June 2000

PARTIES : Delphine Dwyer Law Society of New South Wales JUDGMENT OF : Sully J

COUNSEL : M.B. Evans - Plaintiff B.J. Skinner - Defendant SOLICITORS : Bowen & Gerathy - Plaintiff A. S. Brown - Defendant LEGISLATION CITED : Legal Profession Act 1987 DECISION : Plaintiff allowed a period to and including 12 July 2000 for the making of a claim against the Solicitors' Fidelity Fund; Each party to pay, respectively, her and its own costs.

SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

SULLY J

30 June 2000

30081/99 - Delphine Dwyer v Law Society of New South Wales

JUDGMENT

1 HIS HONOUR: By an amended summons filed on 16 December 1999 Mrs. Delphine Dwyer, as plaintiff, seeks against the Law Society of New South Wales, as defendant, the following relief: "1. An Order pursuant to s 87(4)(b) of the Legal Profession Act 1987 granting the plaintiff an extension of the time within which to lodge a claim on the Fidelity Fund from 15 October 1997 to 15 May 1998.

2. A Declaration that the decision by the Fidelity Fund Management Committee made on 16 September 1999 and communicated to the plaintiff by letter dated 5 October 1999 refusing to allow the plaintiff further time within which to lodge a claim on the Fidelity Fund in respect of a failure to account for moneys placed with the solicitor Jeremy James Cullen constituted a decision disallowing the plaintiff's claim against the Fidelity Fund in the terms of s 90D of the Legal Profession Act 1987 (as amended). 3. An Order pursuant to s 69 Supreme Court Act quashing the decision of the Fidelity Fund Management Committee made on 16 September 1999 and communicated to the plaintiff by a letter dated 5 October 1999 refusing o allow the plaintiff further time within which to lodge a claim on the Fidelity Fund in respect of a failure to account for moneys placed with the solicitor Jeremy James Cullen. 4. An Order pursuant to s 69 Supreme Court Act quashing the decision of the Fidelity Fund Management Committee made on 16 September 1999 and communicated to the plaintiff by a letter dated 5 October 1999 disallowing the plaintiff's claim on the Fidelity Fund in respect of a failure to account for moneys placed with the solicitor Jeremy James Cullen. 5. An Order pursuant to s 90D(4)of the Legal Profession Act 1987 allowing the plaintiff's claim on the Fidelity Fund. 6. Such further or other orders as the Court shall think fit. 7. Costs" 2 The Fidelity Fund to which reference is made in the amended summons is the Solicitors' Fidelity Fund established by Part 7 of the Legal Profession Act 1987. Part 7 makes elaborate provision for the establishment, administration and funding of the Fidelity Fund. Division 3 of Part 7 deals with the topic of claims against the Fidelity Fund. Section 80, which is part of Division 3 defines as follows the essential purpose of the Fidelity Fund: "The Fidelity Fund is held, and is to be applied by the Law Society for the purpose of compensating persons who suffer pecuniary loss because of a failure to account or a dishonest default." 3 The expressions "failure to account" and "dishonest default" are defined, but it is not necessary for present purposes to consider in any detail the statutory definitions. Section 80, in addition to providing the fundamental definition earlier quoted, makes extensive provision for the mechanics of the making of a claim against the Fidelity Fund. Sub-section (3) is relevant for present purposes. It provides: "If a claim is made against the Fidelity Fund, the Law Society Council must: (a) investigate the claim, and (b) determine the claim by wholly or partly allowing, compromising, settling or disallowing it." 4 When, in any particular case, it is intended to make a claim based upon an alleged failure to account, section 87 of the Act makes provision for the fixing of a final date for the making of such a claim. Section 87 provides, relevantly: "(1) If the Law Society Council considers that there has been, or may have been, a failure to account by a solicitor, it may publish a notice in the form approved by the Attorney General that fixes a final date on or before which claims relating to the failure to account must be made. (2) The final date fixed by the notice for making a claim must be a date that is at least 3 months later than the first or only publication of the notice. (3) The notice must be published: (a) in a newspaper published and circulating in the district in which the solicitor is, or was, practising or carrying on business, and (b) in a newspaper published and circulating in Sydney. (4) A claim arising from a failure to account and made after the final date fixed by the notice is barred unless: (a) the Law Society Council allows further time, or (b) the Supreme Court allows further time, if the Law Society Council refuses to do so. ………………………………………………………………………………………….." 5 In the present particular case, the prayer for relief in paragraph 1 of the amended summons prays in aid the power conferred upon this Court by section 87(4)(b). It is not disputed that the defendant did in fact publish a notice complying with the requirements of section 87(1), (2) and (3); and that the plaintiff did not make a formal claim against the Fidelity Fund until well after the expiration of the period fixed by the defendant's notice. 6 In those circumstances it seems to me to be clear that the claims for relief made in paragraphs 2, 4 and 5 of the amended summons cannot succeed. Relief of that kind might be appropriately sought were it the case that the defendant had in fact considered on its merits the plaintiff's claim against the Fidelity Fund, and had then disallowed it as contemplated by section 80(3) earlier herein referred to. In the present case no such point has yet been reached. The position is, rather, that the plaintiff has made a claim out of time; has been unsuccessful in a request to the defendant for an extension of time; and is, therefore, barred from proceeding further with the claim unless this Court grants, pursuant to section 87(4)(b), further time for the making of the application. 7 The only question for present decision by this Court being the question whether the plaintiff should have an extension of time pursuant to section 87(4)(b) of the Act, the essential principles by reference to which that question is to be decided are not, in my opinion, in doubt. The plaintiff must prove to the satisfaction of this Court, and on the balance of probabilities: