Council of the Law Society of New South Wales v Viney [2014] NSWCATOD 8

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Viney [2014] NSWCATOD 8 Hearing dates: 17 February 2014 Decision date: 03 March 2014 Jurisdiction: Occupational Division Before: M Chesterman, Principal Member N Isenberg, Senior Member C Bennett, General Member Decision: 1.The Respondent is guilty of unsatisfactory professional conduct. 2.The Respondent is reprimanded. 3.The Respondent is to pay the Applicant's costs as agreed or assessed. Catchwords: Solicitor - disciplinary application - failure to comply with obligation to hold document in escrow - penalty Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Civil and Administrative Legislation (Repeal and Amendment) Act 2013 Legal Profession Act 2004 Cases Cited: Law Society of New South Wales v Martin [2002] NSWADT 27 Law Society of New South Wales v Waterhouse [2002] NSWADT 204 Waterhouse v Law Society of New South Wales (LSD) [2003] NSWADTAP 20 Texts Cited: Riley's Solicitors Manual Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) David Alan Viney (Respondent) Representation: C Groenewegen (Applicant) In person (Respondent in person) File Number(s): 132019

reasons for decision

Introduction 1On 21 October 2013, the Council of the Law Society of New South Wales ('the Law Society') filed in the Administrative Decisions Tribunal ('the ADT') an Application seeking orders under Part 4.8 of the Legal Profession Act 2004 ('the Act') against the Respondent, David Alexander Viney ('the Solicitor'). 2The orders sought were as follows:- (1)The Solicitor be reprimanded (2)The Solicitor pay the costs of the Law Society (3)Any other orders as the Tribunal deems appropriate. 3The Ground of the Application was formulated as follows:- David Viney ['the Solicitor'], while practising as a solicitor, was guilty of unsatisfactory professional conduct on the basis that he delivered to the bank a Transfer as security for an advance to his client in circumstances where he held that Transfer in escrow pending settlement. 4The Particulars of this Ground are set out below. 5On 21 October 2013, the Law Society also filed an affidavit sworn on 9 September 2013 by its solicitor, Anne-Marie Foord. 6On 5 November 2013, the Solicitor filed a Reply in which he admitted to the matters pleaded by the Law Society, but stated that he required 'further time to file an affidavit explaining the periphery circumstances surrounding the matter'. He did not, however, file any affidavit. 7On 1 January 2014, before the hearing of this matter took place, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present proceedings are therefore 'unheard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013. By virtue of clauses 7 and 13 of this Schedule, they are taken to have been duly commenced in NCAT and are to be heard in the Occupational Division of NCAT. They are to be determined, however, as if that Act had not been enacted. 8The hearing took place before us on 17 February 2014. Ms Groenwegen appeared for the Law Society and the Solicitor appeared in person. Ms Groenewegen tendered Ms Foord's affidavit, which we admitted into evidence, and made submissions in support of the orders sought by the Law Society. The Solicitor did not tender any evidence, but made submissions directed chiefly to the order or orders that we should make by way of penalty.