Council of the Law Society of New South Wales v Harrison (No 3) [2012] NSWADT 202

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Harrison (No 3) [2012] NSWADT 202 Hearing dates: On the papers Decision date: 03 October 2012 Jurisdiction: Legal Services Division Before: M Chesterman, Deputy President Decision: The Respondent is to pay the Applicant's costs of and incidental to these proceedings, as agreed or assessed under Part 3.2 of the Legal Profession Act 2004, except for the costs of and incidental to the Applicant's application for leave to file the Further Amended Application for Original Decision dated 14 July 2010. Catchwords: Solicitor - professional misconduct - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Legal Profession Act 2004 (Qld) Cases Cited: Council of the Law Society of New South Wales v Harrison [2010] NSWADT 201 Council of the Law Society of New South Wales v Harrison (No 2) [2012] NSWADT 103 Legal Services Commissioner v O'Connor (No 2) [2006] LPT 2 Texts Cited: Riley, Solicitors Manual (Butterworths, Loose-Leaf) Category: Costs Parties: Council of the Law Society of New South Wales (Applicant) Adrian Gregory Harrison (Respondent) Representation: C Webster (Applicant) R J Collins (Applicant) Pagano Burlovich Lawyers (Respondent) File Number(s): 082030

decision

Relevant procedural history 1This is a decision on the costs relating to an Application for Original Decision ('the Application') that has been heard and determined. 2Because the only issue to be decided is that of costs, the Tribunal is constituted by a Deputy President sitting alone, pursuant to section 24A(2)(b) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). 3The Application was filed on 2 December 2008 by the Council of the Law Society of New South Wales ('the Law Society'). The Society claimed that the Respondent (hereafter 'the Solicitor'), while practising as a solicitor, was guilty of professional misconduct on six Grounds. The orders that it sought against the Solicitor were: (a) removal of his name from the Roll of Local Lawyers; (b) payment of the Law Society's costs of the proceedings; and (c) such further and (sic) other orders as the Tribunal deemed appropriate. 4Particulars of the allegations of professional misconduct were supplied in a schedule to the Application. They were in three sections, each headed by the name or names of one or more former clients of the Solicitor. In each of these three sections of the Particulars, an account was given of dealings between the Solicitor and the identified client or clients in the course of a retainer to provide legal services. In this sense, three separate 'matters' made up the contents of the Particulars. 5On 2 March 2009, the Solicitor filed a Reply to the Application, in which he stated that he opposed the orders sought by the Law Society. On 30 March 2009, he filed a short affidavit, sworn by him on 27 March 2009, briefly responding to the matters alleged against him and providing some information about his former corporate practice and his current situation. 6Between 12 March and 9 September 2009, the Law Society filed further evidence. 7On 20 May 2010, the Solicitor filed an Amended Reply. This document differed substantially from the Reply. In it, he denied all the allegations made against him in the Application and set out his response to each paragraph of the Particulars. 8On 26 May 2010, the Law Society filed an Amended Application for Original Decision ('the Amended Application'). It differed from the Application only in amending one of the paragraphs of the Particulars. 9On 2 June 2010, the Solicitor filed an affidavit responding in some detail to the matters alleged against him. On 7 July, he filed a second Amended Reply, in which he again denied all the allegations made against him. 10Three successive days in July 2010 were allocated for the hearing of the Application. But at the commencement of the hearing before us on 12 July, the Tribunal was advised that the parties sought an adjournment of two days because there was a prospect that they would agree on draft consent orders, which would be submitted to the Tribunal for consideration. The Tribunal accordingly adjourned the hearing to 14 July 2010. 11Before the hearing commenced on that day, the Law Society served on the Solicitor a copy of a Further Amended Application for Original Decision ('the Further Amended Application') dated 14 July 2010. 12At the resumption of the hearing on this day, the Tribunal was advised that the parties had not agreed on consent orders. Instead, Ms McIntosh of counsel, appearing for the Solicitor, applied orally for an order that the Amended Application be summarily dismissed under section 73(5)(g)(ii) of the ADT Act. The ground that she advanced was that the Amended Application was 'fundamentally flawed', being in such a form as to deny procedural fairness to her client. 13The basis of this submission by Ms McIntosh was that the Amended Application did not identify, with respect to each of the six allegations of professional misconduct, the 'matter' or 'matters' (using this term in the sense outlined above at [4]) to which the allegation related. It followed, she said, that the Solicitor had not been properly informed of the case that he had to meet. 14Ms Webster of counsel, appearing for the Law Society, then handed up a copy of the Further Amended Application and applied for leave to file it. This document differed from the Amended Application chiefly through the addition of some brief passages identifying, with respect to each of the six allegations, the 'matter' or 'matters' to which the allegation related. Ms McIntosh indicated that this application for leave was opposed. 15The Tribunal determined that it should deal with the Law Society's application before addressing the Solicitor's application for the proceedings to be dismissed. 16At the request of counsel for both parties, the Tribunal then gave directions for the filing of written submissions relating to the Law Society's application for leave and the costs associated with it. It indicated, without opposition from counsel, that it would determine the application 'on the papers', pursuant to section 76 of the ADT Act. It then adjourned the hearing pending the delivery of this decision. 17On 21 June 2010, the Law Society filed a formal application for leave to file the Further Amended Application. 18The submissions filed in accordance with the Tribunal's directions included arguments on the costs of the Law Society's application for leave. The position taken by the Law Society was that these costs should be reserved. Ms McIntosh submitted that irrespective of the outcome of the application, the Solicitor should have an order for his costs relating to it, to be paid forthwith on an indemnity basis. 19On 13 August 2010, the Tribunal delivered its decision on these matters (Council of the Law Society of New South Wales v Harrison [2010] NSWADT 201 - hereafter 'the Tribunal's first decision'). The principal Orders that it made were as follows:- 1. Leave is granted to the Applicant to file the Further Amended Application for Original Decision dated 14 July 2010 and handed up at the hearing on 14 July 2010. 2. The costs of this application for leave are reserved. 20For the purposes of the present determination regarding costs, the following passages in the Tribunal's first decision, forming part of its reasons for granting Order 1, are important:- 51 In our judgment, the Application in its original form did not depict with sufficient precision and clarity the case being brought against the Solicitor, for the specific reason advanced by Ms McIntosh. Standing alone, it did not express how each of the six allegations of professional misconduct related to the various 'matters' outlined in the Particulars. The task of discerning this relationship was left to be performed by the Solicitor... 59 The need to state clearly in a disciplinary application which allegations of professional misconduct or unsatisfactory professional conduct are applicable to specific sections of the accompanying particulars - or, to express it in another way, which parts of the particulars are put forward as the basis for each allegation - was in fact spelt out by the Tribunal in [Law Society of NSW v Orford (No 2) [2008] NSWADT 221] in the following extracts from the decision... 60 For these reasons, we endorse Ms McIntosh's claim that the Application, in its original form, was defective. It was indeed clearly so, and the defects in it should have been remedied before it was filed, particularly since the date of filing was later (and not very much later) than the date (12 August 2008) on which the decision in Orford was delivered. 61 The course taken by the Solicitor did not, however, include any measure designed to draw to the Law Society's attention these defects in the Application or the difficulties that he faced in preparing a Reply to it. He chose, in fact, to file a Reply, then to file an amended Reply with very different content, then to claim, after the hearing had commenced and more than 18 months after the Application had been filed and served, that he had not been properly informed of the case being brought against him... 65 We do not go so far as to say that the Solicitor, as soon as he discerned the defects in the Application, was under a legal duty to try to remedy them by drawing attention to them in a request for further and better particulars. But by delaying as he did before making any mention of them and, indeed, filing two markedly different versions of a Reply, he must be taken to have implied that he understood the case being made against him. He therefore bears a significant degree of responsibility for the delay and the cost associated with the Law Society's late application for leave to amend. 72... the Solicitor, for reasons explained above at [61 - 65], bears a significant degree of responsibility for the delay and the cost associated with the Law Society's application for leave to amend. By seeking further and better particulars of the Application in its original form, or by indicating in correspondence with the Law Society that because the Application was ambiguous he could not plead to it, the Solicitor could have contributed to ensuring that the hearing of the case was ready to proceed on the scheduled days. Instead of taking steps such as these, he filed both a Reply and a very different Amended Reply, and he did not put forward his argument that the Application was defective until after the hearing had commenced. 21In deciding that Order 2 was appropriate, the Tribunal held (at [84]) that the Solicitor's application for costs was ruled out by the terms of the relevant provision (section 566) of the LP Act. It pointed out that by virtue of section 566(3) it had no power to make a costs order in favour of a legal practitioner against whom disciplinary proceedings had been brought under the Act unless it had determined that the respondent had not engaged in unsatisfactory professional conduct or professional misconduct. This 'express condition', it said, had not been fulfilled. Earlier in its decision (at [79]), it observed that section 566(4) might have provided a basis for a costs order in favour of the Law Society, but that the Society had not sought any order under this provision. 22The Further Amended Application was then listed for a four-day substantive hearing commencing on 19 March 2012. Shortly before this date, however, the Registry received advice from the Solicitor's legal representatives that he no longer intended to defend the proceedings. At the hearing, which occupied one day only, the Tribunal admitted the evidence tendered by the Law Society and heard submissions from the legal representatives of both parties. 23In a reserved decision delivered on 29 May 2012 (Council of the Law Society of New South Wales v Harrison (No 2) [2012] NSWADT 103 - 'the Tribunal's second decision'), the Tribunal found that the allegations contained in the Further Amended Application were substantiated by the evidence and that by virtue of this finding the Solicitor had engaged in professional misconduct, both at common law and under various provisions of the Legal Profession Act 2004 ('the LP Act'). 24The Tribunal further ordered, pursuant to section 562(2)(a) of this Act, that the name of the Solicitor should be removed from the Local Roll. 25On 19 June 2012, pursuant to directions given by the Tribunal in its second decision, the Law Society filed an application, with supporting submissions, for an order that the Solicitor pay its costs of the proceedings. On 20 July 2012, the Solicitor filed submissions in reply (having previously transmitted them by fax on 11 July). 26As was foreshadowed in the Tribunal's second decision, this matter of costs is being decided 'on the papers' under section 76 of the ADT Act.