Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Dennis [2015] NSWCATOD 3 Hearing dates: 13 November 2014 Decision date: 10 February 2015 Jurisdiction: Occupational Division Before: M Chesterman, Principal Member J Wakefield, Senior Member E Hayes, General Member Decision: By consent: 1. The Respondent is guilty of professional misconduct. 2. The Respondent is reprimanded. 3. The Respondent is to pay the Applicant's costs in the sum of $2,500 Catchwords: Solicitor – disciplinary application – instrument of consent – delay in repaying costs to client following assessments by cost assessors – delay in reimbursing client for costs of assessments Legislation Cited: Legal Profession Act 2004Click here to enter text. Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Bruce Vernon Dennis (Respondent) Representation: Counsel: J Johnson (Respondent) Solicitors: L Muston (Applicant) File Number(s): 1420108 Judgment The course of these proceedings 1. On 19 February 2014, the Acting Legal Services Commissioner, James Harold Milne ('the Commissioner'), filed an Application for Disciplinary Findings and Orders against the Respondent, Bruce Vernon Dennis. 2. In this Application, the Commissioner sought the following orders: (a) a finding that the Respondent had engaged in professional misconduct or unsatisfactory professional conduct on either or both of two Grounds; (b) one or more of the following orders by way of penalty: removal from the Roll, a reprimand and a fine; and (c) a costs order. 3. On 19 February 2014, the Commissioner also filed an affidavit affirmed by him on 17 February 2014. 4. On 19 March 2014, the Respondent filed a Reply, in which he denied both of the Grounds set out in the Application but admitted some of the accompanying Particulars. 5. On 4 September 2014, an Instrument of Consent, bearing the signatures of the Commissioner, the solicitor acting for the Commissioner and the Respondent, was filed pursuant to section 564 of the Legal Profession Act 2004 ('the Act'). This Instrument included a Statement of Agreed Facts, which differed in only a few minor respects from the Grounds and Particulars contained in the Commissioner's Application. 6. The hearing of the matter took place before us on 13 November 2014. Ms Muston appeared for the Commissioner and Mr Johnson of counsel for the Respondent. 7. At the hearing, Mr Milne's affidavit was tendered and admitted without objection. The Respondent tendered a copy of a recent judgment of the Supreme Court setting aside the suspension of his practising certificate by the Law Society of New South Wales. He also tendered copies of correspondence showing that he had recently ceased to be a director of an incorporated legal practice, DC Legal Pty Ltd, of which he had been the solicitor principal. These items of evidence were admitted without objection. The Instrument of Consent 1. In this Instrument, the following consent orders were sought:- 1. The Respondent is guilty of professional misconduct in relation to Grounds 1 and 2. 2. The Respondent be reprimanded. 3. The Respondent is to pay the Applicant's costs as agreed or assessed. 1. The Statement of Agreed Facts was in the following terms (a couple of typographical errors have been corrected):- Ground 1 1. The Respondent failed to make or alternatively delayed in making repayments due to a client Liliane Viselle, as a result of a costs assessment. 1.1 Bruce Vernon Dennis ("the Respondent") acted for a client, Liliane Viselle in proceedings to overturn a Cohabitation Agreement she had entered into with her former partner. 1.2 Dennis & Co was an Australian legal practice conducted by the Respondent up to 30 June 2009. 1.3 DC Legal Pty Ltd commenced trading as an Australian legal practice on 1 July 2009. 1.4 Effective 1 July 2009 the Australian legal practice conducted by the Respondent under the name Dennis & Co was transferred to DC Legal Pty Ltd. 1.5 The Respondent was formerly a principal of the Australian law practice Dennis & Co, and is currently a solicitor principal of DC Legal Pty Ltd 1.6 Dennis & Co/DC Legal Pty Ltd issued Tax Invoice charging Ms Viselle $34,214.40, which she paid in full. 1.7 Ms Viselle subsequently applied for an assessment of the costs, naming the Respondent as Costs Respondent. 1.8 The costs assessor assessed fair and reasonable costs at $19,476.60 pursuant to s. 368 of the Legal Profession Act 2004 and determined the Respondent should pay the costs of the costs assessor in the sum of $1,876.88 pursuant to s. 369 of the Legal Profession Act 2004. The respective Certificates of Determination were issued by the Costs Assessor on 29 November 2010 and sent by the Manager, Costs Assessment on 27 January 2011. 1.9 The Respondent failed to pay the costs of the costs assessor as assessed under s. 369 of the Legal Profession Act 2004. Ms Viselle paid those costs in order to obtain both of the Certificates and they were sent to the parties on 27 January 2011. 1.10 The Respondent applied for a review of the costs assessor's determination. The costs review panel affirmed the costs assessor's determination pursuant to s. 378 of the Legal Profession Act 2004 and determined the Respondent should pay the costs of review in the sum of $2,136.75 pursuant to s. 379 of the Legal Profession Act 2004, on 4 July 2011. 1.11 During the period following the referral of a determination of a Costs Assessor to the Costs Review Panel for review the operation of the earlier determinations was suspended by the operation of s. 377 of the Legal Profession Act 2004. 1.12 The Respondent failed to pay those costs, and Ms Viselle did so in order to obtain both of the review Certificates of Determination. The Certificates were sent to the parties on 27 July 2011 by the Manager, Costs Assessment. 1.13 Ms Viselle wrote to the Respondent on 16 September 2011, 21 September 2011 and 25 October 2012 seeking payment of the amounts due to her. 1.14 By letter dated 21 March 2013, Ms Viselle made a complaint about the Respondent. 1.15 The complaint was put to the Respondent on 17 May 2013, with a request that he provide his response by Friday, 21 June 2013. 1.16 No response having been received by letter dated 5 July 2013, the Respondent was asked to provide his response by Friday, 26 July 2013, failing which it would be presumed he had no reasonable excuse for his apparent failure to: a) make repayments due to Ms Viselle as a result of the costs assessment, and b) reimburse Ms Viselle for costs of the costs assessor and review. 1.17 No response having been received, by letter dated 13 August 2013 the then Commissioner asked Ms Viselle to provide an update on the current situation. 1.18 Ms Viselle responded by letter dated 19 August 2013, confirming the Respondent had neither made the repayment due to her, nor reimbursed her for the costs of the costs assessor and review. 1.19 By letter dated 4 September 2013, the Respondent provided a brief response to the complaint, enclosing a copy of a letter to Ms Viselle c/- Robert Porter dated 5 October 2011 which set out his accounting for the costs paid and owing, and purportedly enclosed a cheque for $12,818.30. 1.20 Ms Viselle provided comments on the Respondent's response by letter dated 26 September 2013. She said she had never received the letter of 5 October 2011. She disputed the calculations set out in the letter and provided her own calculation of the amount due. Ms Viselle claimed she was owed $19,245.38. 1.21 Ms Viselle's comments were relayed to the Respondent by letter dated 17 October 2013. He was asked to provide the following information and documents: a) a copy of his email to Mr Robbie Porter attaching the letter of 5 October 2011, together with any reply, read receipt and/or other document from Mr Porter acknowledging receipt of the email. b) the date the cheque itself was sent, and copies of the cheque (if available), cheque butt, covering letter and/or any other documents showing if and when the cheque was sent c) a copy of the account ledger referred to in the letter of 5 October 2011, showing the various amounts as inputs and outputs d) a copy of the bank statement showing the cheque was presented and paid, or alternatively a copy of a bank reconciliation and/or any other documents showing the cheque as unpresented. 1.22 The Respondent responded by letter dated 25 October 2013. He stated he accepted Ms Viselle's calculations appeared to be correct and advised he had sent her a cheque in the sum of $19,245.38 which she had banked. 1.23 Ms Viselle subsequently confirmed receipt of the cheque. 1.24 The Respondent said he had no record of Mr Porter collecting the letter of 10 (sic - should be 5) October 2011. He said he had received an email from Mr Porter on 1 October 2011 demanding payment on behalf of Ms Viselle and the letter of 5 October 2011 was intended as a response to that email. 1.25 The Respondent provided a copy of the accounts ledger to 24 July 2013, which did not show any repayment of costs to Ms Viselle. He did not provide a copy of the cheque purportedly sent on 5 October 2011, nor any cheque butt, bank statement, bank reconciliation or other evidence showing a cheque was ever drawn at that time. 1.26 A cheque was not drawn and sent to Ms Viselle until 25 October 2013, over 2 years after the review panel's Certificates of Determination were sent to the parties by the Manager, Costs Assessment. Ground 2 The Respondent failed to reimburse or alternatively delayed in reimbursing a client, Liliane Viselle, for costs of the costs assessor and review following an assessment of costs. 2.1 The Facts in paragraphs 1.1 -1.26 of Ground 1 are repeated. Evidence and submissions 1. Annexed to Mr Milne's affidavit was a copy of a certificate of admission showing that the Respondent was admitted as a solicitor of the Supreme Court on 14 July 1978. 2. Ms Muston advised us that since being admitted the Respondent had received six reprimands and one caution. This was not disputed. 3. The only observations made by counsel regarding the specific content of the Statement of Agreed Facts were as follows. Ms Muston pointed out that the letter of 5 October 2011 to Ms Viselle referred to in paragraph 1.19 and subsequent paragraphs of the Particulars did not have any postal address and that the Respondent's ledger (referred to in paragraph 1.25) contained no entry suggesting that the cheque purportedly sent on that date had been presented for payment. Mr Johnson conceded on behalf of the Respondent that although the letter was prepared it was not sent and that likewise no cheque was sent to Ms Viselle at that time. 4. Ms Muston submitted that the Respondent's 'egregious' delay in making the payment due to Ms Viselle would be characterised by reputable and competent fellow-practitioners as 'dishonourable and disgraceful'. This left us with no alternative, she said, but to make a finding of professional misconduct against him. She pointed out that the period of time between the determination by the costs review panel (on 4 July 2011) and the Respondent's payment of the amount that he owed to Ms Viselle (on 25 October 2013) was more than two and a quarter years. 5. Ms Muston also drew our attention to certain assertions made by Ms Viselle in her initial complaint to the Commissioner (on 21 March 2013) and in a later letter to him (dated 19 August 2013). These were to the effect that the Respondent's misconduct had inflicted considerable damage on the reputation of the legal profession. Ms Muston invited us to treat these claims as fully justified by the circumstances of the case. 6. Mr Johnson submitted as follows: (a) the Respondent's conduct did not merit the label 'dishonourable and disgraceful'; (b) it was however admitted by the Respondent to have been 'unacceptable'; and (c) the Respondent conceded that a finding of professional misconduct and the imposition of a reprimand as penalty were appropriate. 7. Mr Johnson also advised us that the purpose of tendering the judgment and the correspondence mentioned above at [7] was to show that the Respondent's current conduct as a legal practitioner was being closely monitored and that because he no longer held a position within DC Legal Pty Ltd his lack of insurance cover prevented him practising. 8. On the matter of costs, Mr Johnson indicated that Ms Muston had suggested $2,500 as an appropriate amount to be awarded to the Commissioner on account of costs. He asked that we fix the costs payable by the Respondent at this amount. Our orders 1. We are satisfied that the matters set out in the Agreed Statement of Facts are established by the evidence. Since ultimately the Respondent did pay to Ms Viselle the amount that he owed her ($19,245.38), our finding under both Grounds is that he delayed in making the payments required of him, not that he wholly failed to make them. 2. His delay was excessive, however, and no excuse for it was put forward. It must therefore be characterised as 'disgraceful and dishonourable' within the meaning of the test stated in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, and as amounting to professional misconduct at common law. Ms Viselle's assertion that it brought the legal profession into disrepute was entirely warranted. 3. We believe the proposed penalty of a reprimand to be within the acceptable range, and we order accordingly. 4. Finally, we accede to Mr Johnson's request (to which Ms Muston made no objection) that the costs payable by the Respondent to the Commissioner pursuant to section 566(1) of the Act should be fixed at $2,500. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 10 February 2015 - Typo error in Hearing dates DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2015