Council of the Law Society of NSW v Ekes [2012] NSWADT 266

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Ekes [2012] NSWADT 266 Hearing dates: 28 November 2012 Decision date: 28 November 2012 Jurisdiction: Legal Services Division Before: J Pheils, Judicial Member M Riordan, Judicial Member S Hayes, Non-Judicial Member Decision: 1. The respondent is guilty of professional misconduct. 2.The respondent is reprimanded. 3.The respondent is fine to the sum of $3000 within 6 of the date of this decision. 4.The respondent is to pay the applicant's costs, as agreed or assessed. Catchwords: Solicitor - disciplinary proceedings - failure to comply with statutory notices requiring information and documents - failure to assist investigations - instrument of consent Legislation Cited: Legal Profession Act 2004 Cases Cited: Council of the Law Society of NSW v Tsalidis (No 3) [2012] NSW ADT 229; Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Hector Ekes (Respondent) Representation: Council of the Law Society of NSW (Applicant) Avondale Lawyers (Respondent) File Number(s): 102002 of 2012

REASONS FOR DECISION 1On 29 January 2010 the Council of the Law Society of New South Wales ("the Law Society") filed an Application alleging that the Respondent, Hector Ekes was guilty of professional misconduct on two grounds namely that without reasonable excuse he failed to comply with a requirement under section 660 of the Legal Profession Act, 2004 ("the Act") and he failed to assist the investigator in the investigation of a complaint. 2The orders sought on the Application were that the solicitor should be reprimanded, fined, his practising certificate be suspended and no further practising certificate be issued until he provided a response to the Notice issued on 29 July 2009 pursuant to section 660 of the Legal Profession Act and costs. 3On 29 January 2010 the Law Society filed an affidavit of Raymond John Collins dated 21 January 2010 (exhibit 1), which documents the circumstances in which the Law Society came to be aware of the matters that are alleged in the Application, the Law Society's investigation of the complaint and the Council of the Law Society's Resolution to commence the proceedings in the Tribunal. He deposed that the Law Society's records indicate that the Respondent was admitted to practice in New South Wales on 6 April 2001. 4A further affidavit of Raymond John Collins was filed on 7 May 2010, which relates to the appointment of Mr Knox Sinclair as an authorised investigator pursuant to the Act (exhibit 2). 5On 3 September 2012 the Respondent filed a Reply, in which he essentially admitted the matters alleged in the Application. However, he stated that he was unable to respond to the section 660 notice within the time stipulated because he was medically unable to do so. 6The Respondent swore an affidavit on 3 September 2012 (exhibit A), to which he annexed a medico-legal report from Chris Probert, registered psychologist, dated 27 July 2012 (annexure B). He relied upon this report as providing an explanation for his failure to respond to the notice. 7On 20 November 2012 an Instrument of Consent executed on behalf of the Law Society, the Solicitor and the Legal Services Commissioner, was filed with the Tribunal. At the hearing on 28 November 2012, Ms Muston appeared for the Legal Services Commissioner by way of a right of intervention conferred by section 559(1)(c) of the Act and the Legal Services Commissioner was joined as a party pursuant to section 559(5). 8The Instrument of Consent evidenced that the parties consented to the Tribunal making a finding that the conduct of the Solicitor as described in the Agreed Statement of Facts amounted to professional misconduct and they also consented to the following orders: (1)That the Respondent be reprimanded. (2)That the Respondent be fined (although they did not agree on the amount of the fine). (3)That the Respondent pay the applicant's costs. 9The parties submitted that both the finding of professional misconduct and the proposed orders were appropriate in the circumstances.