Legal Services Commissioner v Thurairajah [2011] NSWADT 287

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Thurairajah [2011] NSWADT 287 Hearing dates: 1 August 2011 Decision date: 07 December 2011 Jurisdiction: Legal Services Division Before: G Mullane - Judicial Member, S Hale - Judicial Member C Bennett - Non-judicial Member. Decision: 1.The respondent is guilty of professional misconduct; 2.The Respondent is publicly reprimanded; 3.The respondent must pay a fine of $5,000.00; and 4.The Respondent must pay the costs of the Legal Services Commissioner of and incidental to the proceedings, such costs to be as agreed or as assessed. Catchwords: Solicitor, discipline, obstruct or mislead investigator, reasonable excuse. Legislation Cited: Legal Profession Act 2004 Cases Cited: Taikato v R (1996) 186 CLR 454 [1996] HCA 28; Legal Services Commissioner v Tsolakis [2000] NSWADT 21. Category: Principal judgment Parties: Legal Serices Commissioner (Applicant) Harinee Thurairajah (Respondent) Representation: Ms C A Webster for the Applicant Mr S Crawshaw SC for the Respondent Thurai Rajah Lawyers for the Respondent File Number(s): 102016

reasons for decision

INTRODUCTION 1This was a hearing of disciplinary proceedings against the respondent solicitor commenced by the Legal Services Commissioner by the application filed with the Tribunal on 22 June 2010. The hearing was on 1 August 2011. VARIATION OF THE APPLICATION 2At the hearing the Commissioner sought to proceed only on the first of 2 grounds in the application. The second Ground was: " The Respondent, without reasonable excuse, failed to communicate with the Office of the Legal Services Commissioner ". The particulars referred to failure to respond to a letter of 1 September 2009 regarding a complaint by Mr Peter Cornock on behalf of Mr Paul Galea and failure to respond to letters of 31 July 2009 and 1 September 2009 regarding a complaint by Ms Sharlene Naismith on behalf of Mr Henry Stoerr. 3Section 555 of the Legal Profession Act 2004 ("the Act) provides: 555 (1) The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances. (2) The Commissioner is to be regarded as the applicant in connection with a disciplinary application for the purposes of an application by the Commissioner under section 545(1)(i)(Decision of Commissioner on review). (3) Without limiting subsection (1), when considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the disciplinary application will affect the fairness of the proceedings. (4) The inclusion of an additional allegation is not precluded on any or all of the following grounds: (a) the additional allegation has not been the subject of a complaint, (b) the additional allegation has not been the subject of an investigation, (c) the alleged conduct concerned occurred more than 3 years ago. 4The amendment to omit Ground 2 will not cause any unfairness to either party. We are satisfied that the amendment is reasonable, having regard to all the circumstances and findings set out in these reasons.