Legal Services Commission v Papantoniou (No 2) [2014] NSWCATOD 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commission v Papantoniou (No 2) [2014] NSWCATOD 141 Hearing dates: 16/10/2014 Decision date: 28 November 2014 Jurisdiction: Occupational Division Before: D Patten, Principal Member J Wakefield, Senior Member J Schwager, General Member Decision: 1. That the name of Stella Papantoniou be removed from the roll of local lawyers. 2. That the Solicitor pay the costs of the Legal Services Commissioner as agreed upon or assessed. Catchwords: Professional Misconduct - absence of any explanation-unfit to remain on roll Cases Cited: NSW Bar Association v Meakes [2006] NSWCA 340 and Law Society v Treanor [2005] NSWADT285 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Stella Papantoniou (Respondent) Representation: L Muston (Applicant) R Watson (Respondent) File Number(s): 1420173

reasons for decision 1For reasons published on 10 September 2014 we found Stella Papantoniou (the Solicitor) guilty of professional misconduct. We stood over for further evidence and submissions the question as to the orders which should follow our finding. In doing so we ordered the solicitor to file and serve any evidence upon which she intended to rely within 14 days that is by 24 September. 2The Solicitor who hitherto had filed no evidence and had virtually taken no part in the proceedings did not comply with our order. She did however serve a Statutory Declaration dated 14 October 2014 two days before the hearing against her resumed. 3At the hearing on 16 October the Solicitor was represented by Mr R Watson Solicitor. We permitted her to give sworn evidence verifying the contents of her Statutory Declaration upon which she was briefly cross examined by Ms Muston who appeared for the LSC. 4The first four paragraphs of the Statutory Declaration read 1. I was the Principal of Papantoniou Blake Lawyers until I retired which was effective as at the close of business hours on 30 September 2014. 2. I apologise to the Law Society of New South Wales for failing to respond in a timely manner to the issue of the breach of my undertaking dated 14 October 2013 and the subsequent section 660 notice. Further, I apologise to the NSW Civil and Administrative Tribunal for failing to attend at the initial mentions without offering a proper reason. 3. I admit that I have not been able to provide proper attention to and deal with the issues arising from the breach of my undertaking. 4. I am aware that the outstanding monies owned to Cluff and Associates pursuant to my undertaking was received by them on 12 September 2014. 5The Statutory Declaration annexed Medical Certificates one of which from Dr Kujan Nagaratnam dated 11 October 2014 included the sentences: "Mrs Styliani Papantoniou is currently being investigated for progressive cognitive dysfunction as a result of a possible progressive neurodegenerative disorder. She is currently unable to function in a professional capacity and should (sic) not practicing until further investigations are complete." 6Ms Muston read the affidavit of Anne-Marie Food sworn 15 October 2014 which annexed correspondence between the Solicitor and the Law Society of NSW including the letter from the Law Society to the Solicitor dated 9 October 2014. Contact Person: Louis Pierotti Contact No: ------------ 9 October 2014 Mrs Stella Papantoniou ---------- CARLINGFORD NSW 2118 BY COURIER Dear Mrs Papantoniou, Re: Suspension of your Practising Certificate and application for appointment of Receiver. I refer to my letter of 30 September 2014 and note that there was no response by you. I am writing to formally advise that the Council of the Society this morning resolved to suspend your Practising Certificate for the year ending 30 June 2015 - relevant Notices are enclosed. I am also writing to inform you that the Council resolved that the following complaints be made against you: 1.The Solicitor has breached sections 254 and 255 of the Legal Profession Act 2004; 2.The Solicitor has misappropriated trust moneys; 3.The Solicitor has made false declarations on her Trust Money Part A Declarations for the years 2012, 2013 and 2014; 4.The Solicitor has taken costs in the sum of $4,129.00 in a probate matter prior to probate being granted. 5.The Solicitor has attempted to mislead the Law Society and, further, that an application be made to the Supreme Court for the appointment of a Receiver to your former law practice. I will proceed with the preparation of the relevant initiating process and will seek that the Society's Summons be made returnable before the Common Law Duty Judge at the earliest opportunity. I will, of course, provide you with a copy of the documents [ which will be filed in Court ] as soon as they are prepared and give you as much notice as possible as to the return date/time. In the circumstances, please let me have your contact details [ especially a telephone number and/or e-mail address ] as a matter of some urgency. Alternatively, if you are instructing Solicitors to act on your behalf, their details. On this last point I note that although Ms Griffin telephoned me this morning, she ultimately indicated that she would not be dealing with the above matters. Yours faithfully, LOUIS PIEROTTI Litigation Manager Professional Standards 7Ms Muston whilst conceding that the sum payable by the Solicitor to Cluff and Associates pursuant to the undertaking referred to in our previous reasons was paid on 12 September 2014 submitted that the name of the Solicitor should be removed from the roll. She submitted that there was no evidence of the Solicitors fitness to practice and that no probative value could be attributed to the Medical Certificates annexed to the Statutory Declaration which stopped short of diagnosing an illness. 8Ms Muston referred to NSW Bar Association v Meakes [2006] NSWCA 340 and Law Society v Treanor [2005] NSWADT285. In Meakes Tobias JA said relevant to this case at paragraph 70 70 In my opinion, the Tribunal also erred in declining to criticise the respondent's decision not to give sworn evidence at the hearing. It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this Court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table. In Coe, Meagher JA (at [21]), with the agreement of Priestley JA, repeated with approval the following observations made by the Tribunal in that case and which are apposite to the present case: "In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath." 9Mr Watson submitted that we should draw inferences favourable to the Solicitor from her "indecision" in the witness box and submitted that it would be appropriate to adjourn the matter until the assessment referred in the medical certificates has been completed. 10Our findings against the Solicitor involved serious matters. However not every finding of professional misconduct necessarily requires the removal of the Solicitor's name from the roll (see Prothonotary of the Supreme Court v Costello [1994] 3 NSWLR 201 at 207, O'Reilly V Law Society (1988) 24 NSWLR 204 at 236) Section 562 of the Legal Profession Act 2004 gives the Tribunal a number of options of which removal from the roll is the most severe. 11In considering what orders should be made all the proved facts and circumstances need to be taken into account. They will include the objective seriousness of the matters constituting the professional misconduct and an assessment of whether the Solicitor is presently a fit and proper person to practice law. The latter consideration requires inter alia a finding as to whether the Solicitor is likely to repeat the conduct found against her or him. 12Although the Solicitor has surrendered her practicing certificate in this case and in that sense the Community is not at risk, we do not think that on that account alone we should shirk our responsibility to make an order appropriate to the circumstances. 13It seems to us on the evidence we could not be satisfied that the Solicitor if given the opportunity would not offend again. We agree with Ms Muston's submission that she has shown no constrition or insight into her conduct. She has moreover provided no explanation for her wrong doing. All we have is the apology contained in the Statutory Declaration. Possibly there is a medical reason for the Solicitor's conduct but there is no evidence as to her state of health in the relevant period. 14In our opinion the evidence establishes that the Solicitor is not a fit and proper person to practice law. That being so we believe that the only proper order is that her name be removed from the roll 15We make these orders: (1)That the name of Stella Papantoniou be removed from the roll of local lawyers. (2)That the Solicitor pay the costs of the legal Services Commissioner as agreed upon or assessed.