Council of the Law Society of New South Wales v Liepins [2015] NSWCATOD 11

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Liepins [2015] NSWCATOD 11 Hearing dates: 6 March 2014; 12 December 2014 Decision date: 26 February 2015 Jurisdiction: Occupational Division Before: M Chesterman, Principal Member M Riordan, Senior Member E Hayes, General Member Decision: 1. The Respondent is guilty of professional misconduct.

2. The matter is set down for further directions on 4 March 2015 at 9.30 am. Catchwords: Solicitor – disciplinary application – delay in administering estates – misappropriation – contravention of trust account requirements – failure to comply with statutory notices – practising without a practising certificate Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Act 1987 Legal Profession Act 2004 Cases Cited: Allinson v General Council for Medical Education and Registration [1894] 1 QB 750 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Juris Liepins (Respondent) Representation: Counsel: A Tudehope (Respondent)

Solicitors: L Pierotti, Council of the Law Society of New South Wales (Applicant) P Marsh (Respondent) File Number(s): 122027

REASONS FOR DECISION

Procedural history 1. On 16 October 2012, the Council of the Law Society of New South Wales ('the Law Society') filed in the Administrative Decisions Tribunal a disciplinary application claiming that the Respondent, Juris Liepins ('the Solicitor'), had engaged in professional misconduct. 2. The orders sought by the Law Society in this application ('the Application') were:- 1. That Juris Liepins be removed from the Roll. 2. That Juris Liepins pay the Society's costs. 3. Such other order as to the Tribunal seems fit. 1. On the same day, the Law Society also filed an affidavit sworn on 11 October 2012 by its solicitor, Anne-Marie Foord. During October and November 2012, it filed nine further affidavits. 2. On 21 May 2013, the Solicitor filed a Reply, in which he admitted many of the matters alleged in the Application, but denied or did not admit the remainder of them. He did not file any evidence relating to these allegations. 3. On 1 January 2014, the Administrative Decisions Tribunal was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales. These proceedings thereupon became 'unheard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013. Clauses 7(1) and 7(3)(b) of this Schedule stipulate that such proceedings are to be heard by the Civil and Administrative Tribunal but determined as if that Act had not been enacted. 4. The proceedings were set down for hearing before us on 6 March 2014. Mr Pierotti appeared for the Law Society and Mr Tudehope of counsel for the Solicitor. 5. At the commencement of this hearing, Mr Pierotti filed (by leave) a further affidavit sworn by Ms Foord. 6. Mr Pierotti also applied under section 561 of the Legal Profession Act 2004 ('the LP Act') for an order that the Law Society's failure to observe a procedural requirement should be disregarded. This was the requirement imposed by section 506 for acceptance of an out-of-time complaint. The complaint in question formed the basis for one of the Grounds of the Application. On being advised that the Solicitor raised no objection and being satisfied that no substantial injustice would be caused to him, we made the order sought. 7. Mr Pierotti then tendered the eleven affidavits that the Law Society had filed. He also handed up an annotated copy of the Application. The annotations comprised cross-references between each paragraph of the Particulars set out in the Application and relevant parts of the affidavits and the material annexed to the affidavits. 8. The affidavits were admitted without objection. Mr Pierotti advised that they constituted the Law Society's case in chief. 9. Mr Tudehope then applied for an adjournment of the proceedings for about six weeks to enable the Solicitor to obtain and file evidence, relating both to liability and (if the occasion demanded) to penalty. He explained that the Solicitor had psychological problems resulting in an inability to give instructions regarding these proceedings, but still wanted to 'put his side of the story on the record'. Mr Tudehope also indicated that the foreshadowed evidence was likely to include psychological assessments of the Solicitor's condition, both at the time of the alleged misconduct and at the present time. 10. Mr Pierotti advised that the Law Society objected 'formally' to an adjournment, but he was not inclined to 'cavil with' Mr Tudehope's submissions because the Solicitor's practising certificate had been suspended. 11. We decided that Mr Tudehope's application should be granted and directed the Solicitor to file and serve his evidence within a specified period. The Solicitor did not comply with this direction, or with directions to similar effect given at directions hearings on 5 May and 25 June 2014. At each of these hearings, the Tribunal was again advised that the Solicitor had not given instructions to his legal representatives that would enable them to prepare an affidavit for him to sign. At the later hearing, the Tribunal vacated a prior order that the adjourned hearing of the proceedings should take place on 25 July 2014. 12. At a directions hearing on 13 August 2014, the Tribunal directed that this adjourned hearing should take place on a date to be fixed by the Registry between 10 and 25 November 2014, that the Solicitor should not be permitted to file evidence without the Tribunal's leave and that such leave would only be granted in 'exceptional circumstances'. 13. The adjourned hearing was set down for 12 November 2014, but due to a misunderstanding as to this date, there was initially no appearance by or on behalf of the Solicitor. Mr Marsh, appearing subsequently by telephone, sought a further adjournment of the proceedings and indicated that the Solicitor still wished to file evidence. Mr Pierotti stated that the Law Society opposed these measures, but then added that it might agree 'at most' to an adjournment for the purpose of receiving submissions from the Solicitor. He also applied for a costs order. 14. At the conclusion of this hearing on 12 November 2014, we made the following orders and directions:- 1. The Applicant's costs of preparing for and attending today's hearing are to be paid by the Respondent. 2. The Respondent is to file and serve within seven (7) days any application that he may wish to make for leave to file evidence in these proceedings. Any such application must be supported by affidavit evidence tending to show that there are exceptional circumstances justifying a grant of leave. 3. Within a further seven (7) days, the Applicant is to file and serve its reply to this application. 4. If the Applicant wishes to cross-examine any deponent who has provided an affidavit in support of the application, it must so indicate in its reply. In such event, a hearing for this purpose is set down for 11.30 a.m. on Wednesday 3 December 2014. 5. Any application filed by the Respondent pursuant to these directions will be determined in Chambers. 6. The matter is set down for a further one-day hearing on Friday 12 December 2014 at 10 a.m. 1. The Solicitor did not file or serve any application for leave to file evidence. 2. At the adjourned hearing on 12 December 2014, Mr Marsh appeared for the Solicitor. He indicated that he had instructions to seek leave to file an affidavit sworn by the Solicitor six days previously and an affidavit by a psychologist annexing a report on the Solicitor's condition dated 3 May 2014. He added that the Solicitor's affidavit sought to contradict some of the allegations in the Application and to explain some of the admissions made in the Reply, and that the Solicitor still wanted to 'put his side of the story on the record'. 3. Mr Marsh acknowledged, however, that no affidavit had been prepared to support a claim that there were 'exceptional circumstances' justifying the grant of such leave and he did not seek to submit that 'exceptional circumstances' existed. 4. After hearing Mr Pierotti and adjourning briefly to consider the matter, we rejected Mr Marsh's application, on two grounds. 5. The first of these was that, as Mr Pierotti had argued, it was not appropriate to require the Law Society to deal with assertions by the Solicitor that sought to contradict evidence from the Society that had been admitted several months earlier. The Society should not be put under an obligation to contact witnesses, who might not all be available, to seek further testimony from them or to require them for cross-examination. 6. The second ground was that to allow Mr Marsh's application would be to ignore the Tribunal's explicit requirement that evidence from the Solicitor would only be permitted if he furnished verified evidence to the effect that its reception was justified by 'exceptional circumstances'. The requirement of 'exceptional circumstances' had been imposed four months previously (on 13 August 2014) and had been reiterated on 12 November 2014. 7. Mr Marsh then advised us that he had no further instructions to appear for the Solicitor. For the remainder of the hearing on 12 December 2014, the Solicitor represented himself. 8. Mr Pierotti tendered two items of correspondence which, with the Solicitor's consent, we admitted as additional material annexed to Ms Foord's first affidavit. 9. At this point, the Solicitor requested that there should be a separate hearing on the question of penalty (if the need for such a hearing arose) and that he should be permitted to tender evidence and make submissions at any such hearing. Mr Pierotti acceded to this request. 10. Mr Pierotti and the Solicitor then addressed us in turn on the question whether the Law Society's claim of professional misconduct had been made out. 11. Before summarising these submissions, we will reproduce the Grounds, with accompanying Particulars, on which this claim is based.