Legal Services Commissioner v Papantoniou [2014] NSWCATOD 98

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Papantoniou [2014] NSWCATOD 98 Hearing dates: 11 August 2014 Decision date: 10 September 2014 Jurisdiction: Occupational Division Before: D Patten, Principal Member J Wakefield, Senior Member J Schwager, General Member Decision: 1. The Solicitors is guilty of Professional Misconduct. 2. The matter is stood over for further hearing on 7 October 2014 at 2pm. 3. The Solicitor is to file and serve any evidence upon which she intends to rely (limited to evidence relevant to the orders which should follow our finding of Professional Misconduct) within 14 days. 4. The Applicant to file and serve any evidence in reply by 5pm, 4 October 2014. . Catchwords: Undertaking -failure to comply Section 660 Notice failure to reply- defaults continuing. Legislation Cited: Legal Profession Act 2004 Cases Cited: Council of the Law Society of NSW v Panopoulos [2010] NSW ADT208 Allinson v General Council of Medical Education and Registration [1894]2 QB750 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Stella Papantoniou (Respondent) Representation: Counsel J Watson (Respondent) L Muston (Applicant) Papantoniou Blake Lawyers (Respondent) File Number(s): 1420173

reasons for decision 1On 17 April 2014 the Legal Services Commissioner (LSC) made application in this Tribunal for a finding that Stella Papantoniou (the Solicitor) has been guilty of Professional Misconduct and for consequential orders. 2There were two grounds upon which the finding and orders were sought viz: (1)The Respondent has breached her undertaking given in writing to Cluff and Associates on 14 October 2013 to pay to Cluff and Associates the sum of $4505 within 20 days of the date of the undertaking. (2)The Respondent has failed to comply with a Notice issued to her in writing pursuant to section 660 of the Legal Profession Act 2004. 3At the hearing before us Ms L Muston appeared for LSC. Mr Watson Solicitor appeared for the Solicitor but in the absence of his client and of any pleading or evidence filed by her took no part in the proceedings other than unsuccessfully seek an adjournment. We gave oral reasons for our refusal to grant it. 4As appears from the affidavit of Garry Cluff Solicitor sworn 4 August 2014 on 14 October 2013 the Solicitor signed an undertaking in the following terms: To: Cluff and Associates I, Stella Papantoniou irrevocably undertake to pay Cluff and Associates the sum of $4505 within 28 days of the date hereof being an agreed amount of monies owing to Jacqueline Ruth Yeboah in proceedings PAC 2176/08 Stella Papantoniou 14/10/13 5The circumstances which led to the Solicitor giving the above undertaking are not in evidence. According to Mr Cluff's affidavit however $1500 only was paid pursuant to the undertaking that payment being made on 14 October 2013. The balance of $3005 remains unpaid. 6On 15 November and 27 November 2013 Cluff and Associates wrote to the Solicitor calling upon her to honour her undertaking. To neither of the letters was an acknowledgement received. 7The matter came into the hands of the LSC about 5 December 2013. He wrote to the Solicitor on 12 December. There was no reply. He wrote again on 28 January 2014 with the same result. On 28 February 2014 the acting LSC wrote to the Solicitor enclosing a formal notice under s660 of the Legal profession Act 2004 (the Act). Omitting formal parts the notice stated: I, James Harold Milne, Acting Legal Services Commissioner, hereby require you to provide me with the following information and documents pursuant to section 660 of the Legal Profession Act 2004: 1. Why have you failed to comply with your undertaking given in writing on 14 October 2013 to pay the sum of $4,505 to Cluff and Associates being money owed to Jacqueline Ruth Yeboah arising from proceedings PAC 2176/08? Your response to this Notice must be received by my Office by 5.00pm on 21 March 2014. The address of my Office is: Level 9 (OCBC Buildings) 75 Castlereagh Street SYDNEY NSW 2000 [DX 359 SYDNEY] 8The notice was served personally on the Solicitor on 3 March 2014 as appears from the Statutory Declaration of Greg Hughes made 10 March 2014 and annexed to the affidavit of the acting Legal Services Commissioner Mr Milne affirmed on 16 April 2014. No response was received to the notice. 9On 25 March 2014 the LSC wrote to the Solicitor regarding her failure to comply with the notice. He informed her in effect that unless he received a satisfactory reply by 4 April proceedings seeking a finding of professional misconduct would be instituted. There was no reply to this letter. 10As indicated above the Solicitor took no part in the proceedings before the Tribunal in that she did not appear at either of two directions hearings, she failed to comply with an order that she file a Reply and she did not file any evidence. Indeed nothing at all was heard from her until Friday 8 August 3 days before the hearing when a faxed letter was received by the Tribunal from her law firm seeking an adjournment of the case on the following Monday on the grounds of her alleged ill health. 11On the evidence before us we are satisfied to the requisite standard that the Solicitor failed to honour her undertaking. 12We are also satisfied to the requisite standard that the solicitor failed to comply with the Notice served upon her under s660 of the Act. Such failure constituted a contravention of the act and was by statute capable of being unsatisfactory professional conduct or professional misconduct (s498 (1) (a)). It may be that the requirement in the notice to provide a reason "why you have failed to comply with your undertaking given in writing on 14 October 2013...." exceeded the ambit of what the LSC was entitled to require under s660 but this was not argued before us. Moreover we would comment that the Solicitor's conduct while not relied upon by the LSC clearly constituted a breach of rule 43 of the NSW Conduct and Practice Rules 2013. This is turn would have constituted ground for a finding of Professional Misconduct by virtue of s498 (1) (h). 13That breach of an undertaking by a solicitor may warrant a finding of Professional Misconduct seems to be clearly established by cases such as Council of the Law Society of NSW v Panopoulos [2010 NSW ADT208] and the cases cited therein. Statutory inclusive definitions are contained in sections 497 and 498. We refer also to the test of Professional Misconduct propounded in Allinson v General Council of Medical Education and Registration [1894] IQB750 namely conduct which would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency. 14In our opinion the solicitors unexplained failure to comply with her undertaking and her breach of s660 of the Act warrants the finding that we make of Professional Misconduct. 15The orders which may follow the finding we have made are set forth in S562. Ms Muston sought a lesser penalty than removal from the roll and we accept that might prove to be the position. However our finding of Professional Misconduct may lead to the conclusion that the Solicitor was not a fit and proper person to engage in legal practice. Apart from the failure to honour her undertaking, her apparently contemptuous disregard of the letters and formal notice received from the LSC and her apparent contempt of this Tribunal suggests that she was indeed and remains unfit. If that be so the proper order to make in our opinion is that her name be removed from the roll. 16In that circumstance we think it appropriate to give the solicitor the opportunity to file evidence and make submissions if she is so minded as to why in the light of our finding of Professional Misconduct some order other than removal from the roll should be made. 17We make the following finding and orders: (1)The Solicitor is guilty of Professional Misconduct. (2)The matter is stood over for further hearing on 7 October 2014 at 2pm. (3)The Solicitor is to file and serve any evidence upon which she intends to rely (limited to evidence relevant to the orders which should follow our finding of Profession Misconduct) within 14 days. (4)The Applicant to file and serve any evidence in reply by 5pm, 4 October 2014.