Council of the Law Society of New South Wales v Truong [2015] NSWCATOD 22

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Truong [2015] NSWCATOD 22 Hearing dates: 12 January 2015 Decision date: 31 March 2015 Jurisdiction: Occupational Division Before: M Chesterman, Principal Member R Dawson, Senior Member R Fitzgerald, General Member Decision: 1. The Respondent is guilty of professional misconduct.

2. The matter is set down for further directions at 9.30 a.m. on 8 April 2015. Catchwords: Solicitor – disciplinary application – extent of compliance with notice under Legal Profession Act 2004, s 660 – 'reasonable excuse' under s 676 Legislation Cited: Legal Profession Act 2004Click here to enter text. Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Albert-Edris Tri Dai Minh Truong (Respondent) Representation: Solicitors: C Groenewegen, The Council of the Law Society of New South Wales (Applicant) A Truong (Respondent in person) File Number(s): 1420308

Judgment

Introduction 1. On 1 October 2014, the Applicant, the Council of the Law Society of New South Wales ('the Law Society'), filed a Disciplinary Application claiming that the Respondent, Albert-Edris Tri Dai Minh Truong ('the Solicitor'), had been guilty of professional misconduct. 2. This Application stemmed from a Complaint made by the Law Society against the Solicitor, the text of which was communicated to him in a letter from the Society dated 25 February 2014. 3. The orders sought in the Application were that the Solicitor:- 1. be reprimanded 2. if, at the time the Tribunal makes its orders the solicitor holds a practising certificate, the solicitor's practising certificate be suspended until such time as the solicitor complies with the section 660 Notice 3. if, at the time the Tribunal makes its orders the solicitor does not hold a practising certificate, no practising certificate be issued until such time as the solicitor complies with the section 660 Notice 4. pay the costs of the Applicant as agreed or assessed 5. be subject to any other order as the Tribunal deems appropriate. 1. The single Ground of the Application was as follows:- Albert-Edris Truong is guilty of professional misconduct because without reasonable excuse, he failed to comply with a requirement under section 660 of the Legal Profession Act 2004. 1. Incorporating one amendment made at the hearing, the Particulars were as follows:- Background 1. Albert-Edris Truong ['the Solicitor']: a. was born on 22 February 1971 and is currently 43 years of age; b. was admitted to the roll of the Supreme Court of NSW on 5 April 2002; c. at all material times was the solicitor director of the incorporated legal practice known as Edrison Lawyers Pty Ltd trading as Edrison Lawyers ['the Law Practice']. 2. In the 5 months period commencing 9 November 2012 Mr Garry Napper, Trust Accounts Investigator for the Law Society, requested among other things from the Solicitor, 6 matter files and documents and documents pertaining to 29 large deposits to the Law Practice office accounts. 3. On 3 February 2013, Mr Napper requested that the Solicitor provide bank reconciliations or trial balances for the months ended November 2012 to February 2013. 4. The Solicitor failed to produce the matter files, documents, bank reconciliations and trial balances requested by Mr Napper. 5. On 22 April 2013 Mr Napper referred to the Professional Standards Department for action his report dated 22 April 2013 into the Law Practice ['the Report']. 6. The summary of the Report was as follows: 'The practitioner Albert Truong, though requested over a period of 5 months, has filed [sic] to provide 6 matter files and details 29 large deposits to his office/general bank account. More recently he has failed to provide bank reconciliations and trial balances for months ended November 2012 to February 2013.' The section 660 Notice 7. On 23 May 2013 Mr Jeffrey David Edwards, Licensed Process Server, personally served the Solicitor with a set of documents including a Notice pursuant to section 660 of the Legal Profession Act 2004. 8. The terms of the Notice were that the Solicitor was required to produce to the Law Society on or before the fourteenth day after service of the Notice: a. verified by statutory declaration, the information set out in Schedule 1; and b. the documents specified in Schedule 2. Under Schedule 2 of the Notice the Solicitor was required to produce the following matter files: i. L325 W468 Wu – purchase of house and land package Melbourne ii. LB017 W747 Mok – purchase Metro Grand iii. L335 W468 Zhi Yun Ma – proposed purchase iv. LB001 W747 Zhi Yun Ma – proposed purchase property v. L312 W468 Chen & Li – purchase Summit vi. LC021 W418 Yuan Yuan Chen – purchase Rhodes 9. The fourteenth day after service was 6 June 2013. The Solicitor's Response to the Notice 10. The Solicitor responded to the Notice by letter and Statutory Declaration each dated 6 June 2013. 11. In his response to the Notice the Solicitor failed to: a. Provide copies of all bank statements for all office and trust accounts for the period 1 November 2011 to date; b. Provide confirmation letters for all monies deposited to the office accounts which the Solicitor says were loans to him; c. Provide the attachment in relation to the deposit of $12,500.00 on 24 July 2012 into Westpac BSB… Account no…; d. Provide the original matter file relating to the deposit of $42,731.00 on 18 January 2012 into Westpac BSB… Account no…; e. Provide matter files for trust ledger L335 W468 Zhi Yun Ma and LB001 W747 Zhi Yun Ma; f. Advise why the sum of $42,731.00 described above was retained in the office account for the period 18 January 2012 to 19 June 2012; g. Advise when deposits into the office account of $200,000.00 on 21 December 2011 and $9,600.00 on 22 December 2011 as settlement monies were withdrawn. 12. By Statutory Declaration dated 7 June 2013 the Solicitor stated that he had misplaced or lost the clients' file or documents in the matters of Yuan Yuan Chen and Zhi Yun Ma. 13. The Solicitor provided further answers to the Notice on 23 and 30 April 2014 so that the notice is answered in substance. 14. In addition to being 10 months late, the Solicitor's responses in April 2014 were not verified by statutory declaration. Reasonable Excuse 15. The Solicitor has failed to provide any reasonable explanation for his inadequate response to the Notice. 1. From now on, references to paragraph numbers in the Particulars will be preceded by the letter P. 2. In his Reply, which was filed on 4 November 2014, the Solicitor pleaded that he 'made all attempts possible to comply with the requirement under section 660 of the Legal Profession Act 2004 but because of circumstances beyond his control, he was unable to do so within the time limits, or to the satisfaction of the inspector'. 3. In addition, the Solicitor also contested certain aspects of the allegations made in P11. With reference to P13 and P14, he pleaded that his answers conveyed on 23 and 30 April 2014 were in response to the Law Society's letter of 25 February 2014 (see [2] above), in which the Society's request for further information did not stipulate that it be verified. He also pleaded that he subsequently provided a statutory declaration verifying his answers. Finally, he made certain assertions in apparent support of his claim that he had a 'reasonable excuse' for any non-compliance with s 660 of the Legal Profession Act 2004 ('the Act'). 4. The hearing of the Application took place before us on 12 January 2015. Ms C Groenewegen appeared for the Law Society and the Solicitor represented himself. 5. This decision contains our findings on the evidence admitted at the hearing and our decision as to whether the Law Society has established its claim of professional misconduct by the Solicitor.