Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Selim [2016] NSWCATOD 29 Hearing dates: 28 January 2016 Date of orders: 16 March 2016 Decision date: 16 March 2016 Jurisdiction: Occupational Division Before: D Fairlie, Senior Member M Riordan, Senior Member R Fitzgerald, General Member Decision: 1. The Respondent is guilty of professional misconduct as alleged in grounds 1 to 4 of the Application. 2. The Respondent's name is removed from the Roll 3. The Respondent is to pay the Law Society's costs of and incidental to the Application, as agreed or assessed. Catchwords: Solicitor – Professional Misconduct – Making and propounding a false Statutory Declaration – Submitting documentation for the purposes of obtaining a loan that falsely purported to have been witnessed by a person that the Solicitor knew had not witnessed them – Attempting to mislead the Law Society. Legislation Cited: Legal Profession Act 2004 Civil and Administrative Tribunal Act (No. 2) 2013 Civil and Administrative Tribunal Rules 2014 New South Wales Professional Conduct and Practice Rules 2013 Cases Cited: Council of the Law Society of New South Wales v Flynn [2013] NSWADT 70 New South Wales Bar Association v Cummins [2001] NSWCA 284 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Sahar Selim (Respondent) Representation: Solicitors: Council of the Law Society of New South Wales (Applicant in person) No appearance (Respondent) File Number(s): 1520154 Publication restriction: Not applicable Reasons for decision Background 1. This matter concerns an Application by the Council of the Law Society of New South Wales ("the Law Society") to have the name of Sahar Selim ("the Solicitor") removed from the Roll of Australian Legal Practitioners. 2. The Application relies upon four grounds. Firstly, that the Solicitor made a false Statutory Declaration. Secondly, that the Solicitor she propounded the false Declaration. Thirdly, that the Solicitor submitted other documents for the purposes of obtaining a loan, which she herself signed but which falsely purported to have been witnessed by a person that she knew had not witnessed them. Fourthly, that she attempted to mislead the Law Society in relation to these matters. Service 1. The Solicitor did not appear at the hearing. 2. The Law Society tendered an Affidavit of Service, in which the process server deposed that the Solicitor had been served with the originating Application and Affidavit in support at her home (address noted) on 4 September 2015. He deposed to attending at her home on a number of occasions in the preceding month and that on each occasion he was informed by her husband that she was not home, but would be "returning later". On 4 September 2015, at 7:45am, he attended at the property and rang the doorbell. The door was not answered, but he heard noises emanating from inside the house and observed that the Solicitor's car was within the garage. He therefore left the documents at the front door of the premises. 3. We are satisfied that this constitutes good service pursuant to Rule 13(2) (b) (ii) of the Civil and Administrative Tribunal Rules 2014. That Rule provides that service may be effected by leaving a copy of a document: "if the person does not have an address for service, at the person or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document)." 1. The Law Society also tendered an extract from a Current Electoral Roll Search, which indicated that the address attended by the process server was the Solicitor's registered residential address, and copies of letters from the Law Society to the Solicitor advising her of the dates of the Directions Hearing and of the hearing. We note that the Registry also wrote to the Solicitor at that address advising her of the hearing date. None of those letters were returned to the senders as unclaimed mail. Consideration Grounds 1, 2 and 3 1. The facts relevant to Grounds 1, 2 and 3 of the Application were that in April 2013, the Solicitor and her husband approached a finance company in order to borrow funds for the acquisition of an investment property. 2. On 2 May 2013, and in support of that loan application, the Solicitor made a Statutory Declaration to the effect that she was the same person as the person described as Sahar Selim-Karagiannis on the Certificate of Title for the property at 40 Mitchell Street Strathfield ("the Strathfield property"), which was to be provided as security for the loan. The Solicitor's signature on that Statutory Declaration was purportedly witnessed by a Caterina Milazzo, who was described as a solicitor. This Statutory Declaration and a signed Loan Contract were forwarded to the solicitors acting for the finance company. 3. On 24 May 2013, the Solicitor and her husband entered into mortgages over the Strathfield property and another property that they owned at Greenacre. Their signatures on these Mortgage documents purported to have been witnessed by Caterina Milazzo of (address noted). Subsequently it was established that the initial Loan Contract that the Solicitor and her husband signed on 2 May 2013, also purported to be witnessed by Caterina Milazzo. 4. The Law Society alleged that Caterina Milazzo, who was and remains a solicitor, did not witness any of these documents. 5. The matter first came the Law Society's attention in November 2013, when the solicitors acting for the finance company (with whom the Solicitor and her husband had entered into the Loan Contract and Mortgages) telephoned Ms Milazzo and enquired about the Statutory Declaration that she had purportedly witnessed on 2 May 2013. The evidence does not disclose what prompted the solicitors to make that enquiry. 6. Ms Milazzo denied witnessing the Statutory Declaration and requested a copy from the finance company's solicitors. After receiving that document, she lodged a complaint with the Office of the Legal Services Commissioner ("OLSC") and the OLSC referred the complaint to the Law Society for investigation. 7. During the course of the investigation in relation to the statutory declaration, the purported witnessing of the Loan Contract and Mortgages by Caterina Milazzo also came to light and Ms Milazzo also denied having witnessed those documents. Her evidence was that she had first met the Solicitor while they were at Law School, where they were friends. She said that she attended the Solicitor's wedding, but that she had not seen her for about 10 years. She provided her actual address (which we have noted) and said that she has lived there for many years. 8. Based upon Ms Milazzo's evidence and the statements that the Solicitor made when she was confronted with Ms Milazzo's evidence (which we will discuss in relation to Ground 4 of the Application), we are reasonably satisfied that Grounds 1, 2 and 3 of the Application have been made out. 9. In particular, in relation to Ground 1, we are satisfied that Ms Milazzo did not sign the Statutory Declaration; she did she write her name in the space designated "name of designated witness"; She did not write the word "solicitor" in the space designated "qualification of authorised witness"; she did not witness the Solicitor signing the Statutory Declaration; and she was not present when the Solicitor signed it. 10. In relation to Ground 2, we are satisfied that the Solicitor forwarded the Statutory Declaration dated 2 May 2013 to the solicitors for the finance company in order to facilitate the granting of a loan. 11. In relation to Ground 3, we are satisfied that the Solicitor also forwarded the loan and mortgage documentation that she and her husband signed, and which falsely purported to have been witnessed by Caterina Milazzo, to the solicitors for the finance company for the purpose of obtaining the loan. 12. There is no evidence before us that indicates who actually witnessed those four documents. However, we note the similarity between the form of the witness' signature and the handwriting on each document and are satisfied that it could be inferred that the person who most likely signed Caterina Milazzo's name was the Solicitor herself. 13. However, it is not necessary for us to speculate about this issue as the grounds of the Application have been made out and we are satisfied that the Solicitor knew that the documents were actually witnessed by a person other than Caterina Milazzo. Ground 4 1. The allegation that the Solicitor attempted to mislead the Law Society arises from the responses that she provided during the Law Society's investigation. We have summarised these responses as follows. 2. The Law Society first wrote to the Solicitor on 10 January 2014. On 28 January 2014, she provided a written response in which she said: "A Mrs Assunta C Milazzo was the witness to a statutory declaration that I made in connection with my personal loan which I obtained some time ago in around April or May of 2013. A recently sworn copy of the declaration made before Mrs Milazzo is attached for your information". 1. The Solicitor submitted a copy of a Statutory Declaration dated 27 January 2014 with her letter dated 28 January 2014. This contained the same factual information that was contained in the Statutory Declaration dated 2 May 2013, but it was witnessed before "Assunta Milazzo", who was described as Justice of the Peace (number provided). 2. The Law Society contacted Mrs Assunta Milazzo by telephone and she advised the Law Society that several days earlier she was contacted by the Solicitor. She had not met the Solicitor before. The Solicitor advised her that she wished to have a Statutory Declaration witnessed urgently, and although it was a public holiday, she invited the Solicitor to come to her home and witnessed her signing the document. Mrs Milazzo said that her middle name is "Maria" and she confirmed that she does not use the name "Caterina". 3. As might be expected, that information resulted in the Law Society making further enquiries with the Solicitor. She responded to those enquiries by forwarding yet another version of the Statutory Declaration and a letter dated 7 February 2014, in which she stated: "I refer to previous correspondence and advise that the Statutory Declaration was first witnessed on May 2013 before Ms Michelle Brown, 2 Park Street Sydney, please refer to the copy attached. Notwithstanding errors of detail, which would have been amended during the witnessing process, the copy witnessed by Ms Brown had been intended to be witnessed by Mrs Assunta Milazzo. This copy appears to have been sent to MSA National (the solicitors for the finance company) in error. The Statutory Declaration was also witnessed on 27 January 2014 before Mrs Assunta Milazzo, 30 Bouvardia Street Punchbowl. I regard both the Statutory Declaration before Ms Brown on 2 May 2013 and Mrs Milazzo on 27 January 2014 to be my declarations. I apologise for any confusion caused." 1. The Statutory Declaration attached to this letter appeared to be a copy of the original Statutory Declaration dated 2 May 2013 (which was purportedly witnessed by Ms Milazzo). However, it contained handwritten amendments and Ms Milazzo's signature was crossed out and replaced with a signature that was indecipherable. The name "Caterina Milazzo" in the space for "name of authorised witness" was also crossed out and replaced by the words "Michelle Brown", and the word "solicitor" in the space for "qualification of authorised witness" was replaced with the words "Justice of the Peace (number provided)". The Solicitor crossed out her own signature, but resigned the Declaration. The original date of 2 May 2013 was ruled through, but the same date was re-written on the Declaration. 2. The Law Society duly contacted Michelle Brown. She confirmed that she is a Justice of the Peace and is also a work colleague of the Solicitor. She said that she had recently witnessed the Statutory Declaration, but confirmed that she did not witness it in May 2013. She subsequently wrote to the Law Society advising that she had left the date as "2 May 2013" because that is what the Solicitor asked her to do. 3. In early February 2014, the Solicitor forwarded the versions of the Statutory Declaration witnessed by Assunta Milazzo and Michelle Brown to the solicitors for the finance company with a covering note in which she said: "TWO (UNDERLINED) STATUTORY DECLARATIONS ARE ATTACHED. KINDLY NEVER RELEASE ANY OF MY INFORMATION WITHOUT CHECKING WITH ME FIRST (UNDERLINED)." 1. The Solicitor subsequently proffered two further "explanations" to the Law Society about the original Statutory Declaration that was purportedly witnessed by Caterina Milazzo. In a letter dated 14 February 2014, she stated in part: "The only specific recollection that I have of the document to which you refer, is that this appears to have been a draft, specimen "statutory declaration" possibly for use by one of my children in connection with school legal studies. Aside from this and a few other vague recollections, I recall that this document was never intended to be a statutory declaration made by myself to satisfy a request from a loan provider…… The issue seems to have arisen when this document was erroneously sent to my loan provider…" 1. During a telephone conversation with the Law Society's investigator on 3 April 2014, the solicitor said (in substance) that there were two "Caterina Milazzo's" and that the Caterina Milazzo who in fact witnessed the first Statutory Declaration was a person found by her husband but was not the solicitor (of the same name). However, she asserted that since 2013, neither she nor her husband had been able to find that other "Caterina Milazzo". 2. The telephone conversation with the solicitor was the Law Society's last communication from the Solicitor in relation to this matter and the Solicitor failed to respond to eight further letters that the Law Society sent to her. 3. We are comfortably satisfied that Ground 4 of the Application has been made out. In view of the litany of explanations proffered by the Solicitor to the Law Society, each of which is inconsistent with its predecessor and manifestly false, constituted an attempt by the Solicitor to mislead the Law Society in its investigation of the circumstances surrounding the purported witnesses of the Statutory Declaration on 2 May 2013 by Caterina Milazzo. 4. The Law Society's written submissions conveniently summarise these false explanations as follows: 1. The Caterina Milazzo Statutory Declaration was a draft specimen "statutory declaration" possibly for use by her children in connection with school legal studies; 2. The Solicitor never intended to use this Statutory Declaration to support her application for a secured loan; 3. The Statutory Declaration was sent to the solicitors for the finance company in error and was an administrative oversight; 4. Michelle Brown witnessed a further Statutory Declaration by the Solicitor on 2 May 2013; 5. The Statutory Declaration witnessed by Michelle Brown was also sent in error to the solicitors for the finance company; 6. Assunta Milazzo witnessed a third Statutory Declaration by the Solicitor in or around April or May 2013; 7. The February 2014 Statutory Declaration before Assunta Milazzo was a copy of this earlier statutory declaration; 8. Assunta Milazzo 's middle name commenced with the letter "C"; and 9. There was another Caterina Milazzo, but not the solicitor, who in fact witnessed the 2 May 2013 Statutory Declaration. This was someone found by the Solicitor's husband, but that person could not now be found. The Statutory Declarations witnessed by Assunta Milazzo and Michelle Brown and Grounds 1 and 2 of the Application 1. There is one further matter in relation to the grounds of the Application that it is necessary to address. The resolutions made by the Law Society's Professional Conduct Committee, that proceedings be instituted against the Solicitor in relation to these matters and which were conveyed to her by letters in April and May 2015, proceeded on the basis that the Statutory Declarations witnessed by Assunta Milazzo and Michelle Brown also constituted the making and propounding of false Statutory Declarations by the Solicitor. 2. The particulars provided in relation to ground 1 of the Application referred to the making of the Statutory Declaration before Michelle Brown (paragraphs 15 and 16), but not the Statutory Declaration before Assunta Milazzo. The particulars provided in relation to ground 2 of the Application included the forwarding of these two further Statutory Declarations to the solicitors for the finance company (paragraphs 20 and 21). However, the Law Society's, submissions did not refer to these Statutory Declarations in relation to grounds 1 and 2 of the Application (see: paragraphs 34 to 41 of the Law Society's written submissions dated 17 December 2015), although they were referred to in relation to ground 4 of the Application. 3. Accordingly our findings in relation to grounds 1 and 2 are limited to the Statutory Declaration purportedly sworn before Caterina Milazzo on 2 May 2013. 4. Different issues would arise if we were to consider the later Statutory Declarations in relation to grounds 1 and 2, as they were not "false" in the sense that they were witnessed before the persons they were said to have been witnessed before. The falsity, in relation to the Declaration witnessed by Michelle Brown is that the Solicitor represented to the solicitors for the finance company that this had been signed and witnessed on 2 May 2013 and not on the date that it was actually signed. Our Findings in relation to Professional Misconduct- Grounds 1, 2 and 3 1. The Law Society submitted that the conduct alleged in each of the grounds of the Application amounted to professional misconduct on the part of the Solicitor. We agree with this submission. 2. However, we note that grounds 1, 2 and 3 also raise an additional issue, as the Solicitor's conduct did not occur in the course of legal practice, but rather in the conduct of her own personal affairs. Conduct within the course of practice, relevantly dishonesty in dealing with clients or the Court, is more directly connected with a solicitor's fitness to practice. 3. The Law Society submitted that conduct by a solicitor in relation to their own personal affairs may still constitute professional misconduct as it has the capacity to impinge upon the public's confidence or respect in the legal profession and thereby bring the administration of justice into disrepute. She drew our attention to the following remarks of Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284: "There is authority in favour of extending the terminology "professional misconduct" to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology, "professional misconduct" overlaps with and, and usually it is not necessary to distinguish it from the terminology of "good fame and character" or "fit and proper person" (at paragraph 56)." 1. In New South Wales Bar Association v Cummins [2001] NSWCA 284, the relevant conduct concerned the failure by a senior barrister to lodge any taxation returns relating to his professional practice, or for any other personal income, for a period of 38 years. The Court of Appeal characterised this conduct as "sufficiently closely connected" to his practice being concerned with the earning of income as to justify a finding of professional misconduct under the first limb (at paragraph 66). The Court also concluded that the barrister's failure to observe his legal obligations and civic responsibilities (to lodge tax returns) was of such gravity as to constitute professional misconduct in relation to fitness to practice (at paragraph 67). 2. In the current matter, the relevant conduct was not closely connected with the Solicitor's legal practice. However, her conduct that calls into question her good fame and character and her ongoing fitness to practice. The essence of her conduct, as the Law Society submitted, was that the Solicitor knew that the documents she submitted to the finance company had not been witnessed by Caterina Milazzo; She knew that the signatures had been forged; and she relied on that to procure the loan for her benefit. Her conduct involved fraud and dishonesty and may also constitute a contravention of the Crimes Act. 3. We agree that the conduct amounts to professional misconduct as it calls into question the Solicitor's fitness to practice. We also note the definition of professional misconduct in the s497(1)(b) of the Legal Profession Act 2004, ("the Act") (the legislation in force at the time that conduct occurred) included: "Conduct of an Australian legal practitioner whether occurring in connection with the practice of law or otherwise that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice." Our findings in relation to Professional Misconduct – Ground 4 1. Our finding that the Solicitor attempted to mislead the Law Society also constitutes professional misconduct in our view. 2. Rule 43 of the New South Wales Professional Conduct and Practice Rules 2013, (the Rules in force at the relevant time), provides that: "43.1 Subject only to his or her duty to the client, a solicitor must be open frank in his or her dealings with the regulatory authority. 43.2 A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor's conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional or professional misconduct and in doing so ,the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter." 1. Section 498(1) (a) of the Act provides that conduct consisting of a contravention of the Act, the Regulations or the Legal Profession Rules is capable of being unsatisfactory conduct or professional misconduct. In this case we regard the conduct as a breach both Rules 43.1 and 43.2, and that it is professional misconduct. We also regard the Solicitor's attempts to mislead the Law Society as to the witnessing of the Caterina Milazzo Statutory Declaration as professional misconduct in the sense that it justifies a finding that she is not a fit and proper person to engage in legal practice. Considerations as to Penalty 1. The Solicitor is 47 years of age. She was admitted to practice in 1993 and has been practising on her own account for over 10 years from her residential address in Strathfield under the name "S. Selim Solicitors". However, she did not renew her practising certificate after July 2014. 2. The removal of a solicitor's name from the Roll of Australian Legal Practitioners is made in order to protect the public, and where the conduct occurs outside the course of practice, also to protect the reputation of the legal profession: Ziems v Prothonotary of the Supreme Court of New South Wales (1957) CLR 279. It is made where the probability is that the solicitor is permanently unfit to practise. 3. One feature of this case is that, in relation to the making and propounding of the initial false Caterina Milazzo Statutory Declaration, there was no motive or reason for the Solicitor to so act. There was no suggestion that the contents of the Statutory Declaration, namely that Sahar Selim and Sahar Selim- Karagiannis are the same person, was untrue in any respect. She could easily have had the Statutory Declaration witnessed before a solicitor or justice of the peace and submitted it to the finance company in the usual course. 4. In Council of the Law Society of New South Wales v Flynn [2013] NSWADT 70, a solicitor was found guilty of professional misconduct and his name was removed from the Roll after a finding, amongst other matters, that he had forged the signature of a justice of the peace on a statutory declaration in a Notice of Pleading filed with the Local Court. The solicitor there had been charged with driving offences and just before 9 am on the day listed for the hearing, he pleaded guilty to the charges by faxing the Notice, with the forged signature, to the Court Registrar. 5. In that matter the solicitor admitted that he had forged the signature of the justice of the peace (who was an employee at his office), but said in his defence that it was a "spur of the moment decision" because he was too embarrassed to let anyone else know that one of the driving offences involved his driving whilst his licence had been suspended. He also said the substance of what was contained in his Statutory Declaration was correct and not intended to mislead anyone. 6. There are similar features in this instance. However, here the Solicitor has never admitted the allegation. Rather she has gone out of her way to cover up her actions and to attempt to mislead the Law Society with patently false alternative explanations. Also her actions could not be considered to have been taken on the spur of the moment. The statutory declaration purportedly witnessed by Caterina Milazzo was signed on 2 May 2013, whereas the Strathfield and Greenacre mortgage documents also said to have been witnessed by Ms Milazzo were signed on 24 May 2013. 7. In these circumstances and in the absence of any explanation or justification for her actions from the Solicitor, we must conclude that the professional misconduct that we have found her to have been guilty of renders her unfit to practice and that she is probably permanently unfit to practice. As a result, it is appropriate to order that her name must be removed from the Roll. 8. As this matter resulted in a referral of a complaint under the Act, rather than under the current legislation, the Tribunal has the power to order that the Solicitor's name be removed from the Roll, rather than make a recommendation to that effect to the relevant Court. 9. We also conclude that there are no exceptional circumstances that would preclude the making of a costs order against the Solicitor. Orders 1. We therefore make the following orders: 1. That Sahar Selim is guilty of professional misconduct as alleged in grounds 1 to 4 of the Application. 2. That Sahar Selim's name be removed from the Roll of Australian Legal Practitioners; and 3. That Sahar Selim is to pay the Law Society's costs of and incidental to the Application, as agreed or assessed 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 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: 16 March 2016