Edwards v Flynn [2013] NSWADT 206

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Edwards v Flynn [2013] NSWADT 206 Hearing dates: On the papers Decision date: 19 September 2013 Jurisdiction: Legal Services Division Before: D Fairlie, Judicial Member M Riordan, Judicial Member J Butlin, Non-Judicial Member Decision: 1.The Respondent to pay to the Ms Edwards the sum of $8,120.11 by way of compensation. 2.The balance of the Application for Compensation is dismissed. 3.No order as to costs. Catchwords: Solicitor Disciplinary Application - Claim for Compensation Legislation Cited: Legal Profession Act, 2004 Workers Compensation (General) Amendment (Costs in Compensation Matters) Regulation 2003 Cases Cited: Council of the Law Society of NSW v Flynn [2013] NSWADT 70 Council of the New South Wales Bar Association v Fitzgibbon (No. 4) [2012] NSWADT 145 Director of Public Prosecutions v Ozacka 68 NSWLR 325, at 328 Sullivan v Department of Transport (1978) 20 ALR 323, at 343 Category: Consequential orders Parties: Julie Edwards (Compensation Claimant) Mark Joseph Flynn (Respondent) Representation: J Edwards (Applicant in person) M Flynn (Respondent in person) File Number(s): 122005

reasons for decision

Background 1This is the second decision to be delivered by the Tribunal in relation to the proceedings against the Respondent Mark Joseph Flynn ("the Solicitor") and it relates to a claim for compensation made by the Compensation Claimant, Ms Julie Edwards, against the Solicitor. 2On 3 April 2013 the Tribunal handed down its decision in Council of the Law Society of New South Wales v Flynn [2013] NSWADT 70. That decision related to five (5) matters that were brought against the Solicitor. However, the current decision relates solely to matter no. 122005 in which the Tribunal held as follows: 94 This complaint is limited to an allegation that the Solicitor failed to provide his client, Ms Edwards, with a written costs disclosure. In his Reply the Solicitor initially denied the allegation, but at the hearing he conceded that there was no written costs disclosure. 95 Nevertheless in his evidence before the Tribunal the Solicitor maintained that he did at least discuss his costs with Ms Edwards at the time of a Review Conference in the proceedings in September 2006. Ms Edwards denied this, and as the Law Society pointed out there is no reference to costs in his subsequent correspondence with his client. 96 In his submissions, the Solicitor also asserted that this failure was due to an oversight on his part and that before the claim was concluded he did make a written disclosure. He clarified this as meaning that he disclosed his costs in the Authority to Settle and Deduct Form that he had Ms Edwards sign at the conclusion of the matter. None of these matters, in our opinion, answers the complaint. 97 The Solicitor's concession at the hearing means that the complaint is established. In our view, this constitutes unsatisfactory professional conduct. 3The Application for original decision filed on 7 March 2012, indicated that Ms Julie Edwards ('Ms Edwards") would seek against the Solicitor an order that he pay her "compensation details of which are to be provided". However, that claim was not particularised in the Application. 4The Tribunal notes that at the commencement of the hearing, counsel appearing for the Law Society indicated that the current claim for compensation would be dealt with at the conclusion of the substantive proceedings. Ms Edwards was not called by the Law Society to give evidence during the substantive proceedings. She did not file any evidence with respect to the compensation claim until after the Tribunal's decision had been published, although she first wrote to the Tribunal in November 2011. 5We are satisfied that at all relevant times, the Solicitor was aware that a claim for compensation under the Legal Profession Act 2004 ("the 2004 Act") was being made against him by Ms Edwards and was generally aware of the nature and extent of the claim. There is no evidence before us that he requested particulars of the claim for compensation from Ms Edwards at any time. 6Following the publication of the Tribunal's decision, we set a Timetable, which required that: a.Ms Edwards file submissions in support of her application for a compensation order by 24 May 2013; b.The Solicitor file submissions in reply by 21 June 2013; c.The Law Society of NSW be notified of the claim and be invited to file submissions by 21 June 2013; and d.The claim be determined by the Tribunal on the papers and without the need for the parties to attend in person. The Law Society subsequently notified the Tribunal that it would not take any further part in the matter. 7On 20 May 2013 the Tribunal received a letter from Ms Edwards, in which she particularised her claim for compensation against the solicitor. We regard this letter as being in the nature of an Application for Compensation. 8Ms Edwards stated that she received a settlement of $37,500 in respect of her Victim's Compensation claim against MGW Hotels Pty Limited T/as Victoria Point Tavern & Ors, such settlement being "inclusive of costs". She complained that the Solicitor deducted the following sums from the settlement: (1) An "excess" of $10,000; (2) Costs and disbursements of $16,502.80; (3) A charge of $5,367.31 rendered by Centrelink; (4) $1,000 by way of unspecified miscalculations. She complained that the Solicitor had 'taken more than 50% of my total compensation claim' and that she received only $6,502.80 of the original settlement sum. 9To date, the Solicitor has not filed any Submissions in respect of the claim for compensation. However, on 27 August 2013 the Tribunal received a letter from him that bears the date '10 August 2013', in which he sought an extension of time in order to file submissions '...due to my current medical incapacity as certified in medical certificate of Dr Peter Winstanely, orthopaedic surgeon, a copy of which is enclosed.' He also asserted that he would not be in a position to deal with the claim for compensation '...until such time as I receive from the Manager of the practice a full and complete copy of the file of Ms Julie Edwards which do date I have not received'. 10We refer firstly to the medical certificate of Dr Winstanely, which is dated 24 July 2013. This indicates that the Solicitor is suffering from '...right total knee replacement 30.8.13' and that he would be 'unfit for duty until 20/10/13'. The certificate also states that 'he' (which we interpret as meaning the Solicitor) states that the incapacity commenced on 24/7/13'. 11While we regard the certificate as being evidence of an incapacity for work that would commence on 30 August 2013, when the Solicitor was presumably to undergo a total right knee replacement, we do not accept that this condition has rendered him medically unfit to comply with the direction that he file and serve submissions by 21 June 2013. In addition, the history of the principal application evidences that the Solicitor was generally non-compliant with the Tribunal's directions and we note that it was necessary to abort a hearing date in circumstances where, having failed to secure an adjournment for non-medical reasons, the Solicitor faxed to the Registry on the eve of the hearing date a medical certificate that certified him unfit to attend. 12In any event, we note that the Solicitor has not filed any evidence that supports a finding that he has requested a copy of the file relating to Ms Edwards' matter from the Manager and/or when he made that request. Further, we note that the Solicitor defended the disciplinary proceedings against him without seeking any order for the production of the relevant file from the Manager and that all documents relevant to Ms Edwards' complaint and the Law Society's investigation of it were annexed to Ms Foord's Affidavits. These were served upon the Solicitor and in the absence of any evidence that supports a finding that not all documents relevant to the current claim for compensation were annexed to Ms Foord's Affidavits, we reject the Solicitor's submission that he will not be able to deal with it until he has received a copy of the file from the Manager. 13In relation to this request for a further extension of time, we refer to the decision of Rothman J in the Supreme Court of New South Wales in Director of Public Prosecutions v Ozacka (68 NSWLR 325). At page 328 paragraph 13 of the Judgment his Honour quotes from the decision of the Full Court of the Federal Court in Sullivan v Department of Transport, which is reported at (1978) 20 ALR 323, and he quotes the passage at 343 from the Judgment of Stein J with whom Fisher J agreed. The passage deals with the availability of a refusal to grant an adjournment (which we regard as being analogous to the granting of an extension of time) as constituting a failure to give a party to the proceedings the opportunity of adequately presenting his case and the passage quoted by Justice Rothman concludes with this paragraph: "In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the Common Law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled." 14In the current matter, our view is that the Solicitor has been given abundant opportunity to meet the claim for compensation that has been made against him by Ms Edwards, which he has not taken, and that the reasons that he proffered in his letter dated 10 August 2013 (which was not received by the Tribunal until 27 August 2013) for seeking a further extension of time do not disclose any proper basis for us to do so. In our view, he has not been deprived of the opportunity that the case law requires that he be given. His request for a further extension of time to file submissions is refused and we have decided that the interests of justice require us to determine the claim for compensation based on the documents and evidence that we have received. 15Further, the Solicitor has not identified any prejudice that has flowed from the manner in which this claim for compensation has proceeded or any prejudice that would flow from the granting of leave to Ms Edwards under section 570(4) of the 2004 Act. We therefore grant leave to Ms Edwards to rely upon her letter received on 20 May 2013 as an Application for Compensation, to the extent that such leave may be necessary.