Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Byrne [2016] NSWCATOD 166 Hearing dates: 21 March 2016 Date of orders: 21 March 2016 Decision date: 21 March 2016 Jurisdiction: Occupational Division Before: Mullane ADCJ, Principal Member D Fairlie, Senior Member E Hayes, General Member Decision: (1) The respondent, Hugh James Byrne, is guilty of professional misconduct in each proceeding. (2) The name of the respondent is to be removed from the roll of solicitors. (3) In the matter 1520116 the respondent must pay the costs of the Legal Services Commissioner of or incidental to the proceedings as agreed or as assessed. (4) In each of matters number 1420166 and 1520188 the respondent must pay the costs of the Law Society of NSW of or incidental to the proceedings as agreed or assessed Catchwords: Solicitor, Disciplinary proceedings, Failure to inform client, failure to obtain instructions, failing to provide documents to client, failing to tell client hearing date, appearing without instructions, misleading client as to amount of settlement, failing to respond to client's correspondence, incompetence and dishonesty. Professional misconduct. Legislation Cited: Legal Profession Act 2004; Cases Cited: Legal Services Tribunal in the matter of Hugh James Byrne and the Legal Profession Act (1987) (23 November 1995 – unreported); Legal Services Commissioner Byrne [2000] NSW ADT 70 (31 May 2000); BRJ v Council of the NSW Bar Association [2016] [NSWSC 146; Allinson v General Council for Medical Education and Registration [1894] 1 QB 750 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Hugh James Byrne (Respondent) Representation: Counsel: G Miller (Applicant) Solicitors: Council of the Law Society of NSW (Applicant) File Number(s): 1520116 REASONS FOR DECISION Introduction 1. The applicant Legal Services Commissioner in this application (file 1520116) sought a finding of professional misconduct by the respondent ["the practitioner"], an order removing his name from the roll of solicitors and an order for costs. 2. There are 7 grounds raised in the application and numerous subgrounds. They relate to his conduct in representing a client in relation to parenting disputes with his former partner. 3. This was also a hearing of 2 disciplinary applications by the Law Society of NSW against the practitioner. Separate reasons have been provided for the Law Society matters, and the facts and findings of professional misconduct in relation to all 3 matters were taken into account in deciding the orders made. 4. Application 1420166 was filed on 14 April 2014 and complained that the respondent was guilty of professional misconduct by failing to comply with the requirements of Section 660 of the Legal Profession Act 2004 ("the Act"), which then applied and failing to assist the Law Society with the investigation of a complaint against him. In that application the Law Society sought an order for the practitioner to be reprimanded and fined, his practising certificate be suspended until he provided a response to a Notice under section 660 of the Act, and he pay the costs of the Law Society. 5. Application 1520188 was filed by the Law Society on 24 September 2015. It complained that the practitioner was guilty of professional misconduct because he: 1. Commenced proceedings which had no prospects of success; 2. Prepared and produced a document entitled "Plaintiff's Assessment of Costs with Complying Narrative" in which claims were made in relation to work which was not done and where events that occurred in the proceedings were misrepresented; 3. Prepared document title "Consent Orders" which contained false representations; 4. Prepared and propounded a document entitled "Writ of Possession" which contained false representations; 5. Attempted to mislead the Law Society; and 6. Made a false statutory declaration. 1. In that application the Law Society sought that the practitioner's name be removed from the Roll of Solicitors. 2. The hearing of the 3 applications together was by agreement of the practitioner, the Law Society and the Commissioner. Separate reasons are provided in relation to the 2 applications of the Law Society. 3. The practitioner did not file any reply to the application in these proceedings or any evidence. The matter was listed for hearing on 20 March 2016. There was no appearance by or on behalf of the practitioner. 4. The legal representative for the Law Society informed the Tribunal at the hearing that the practitioner had spoken with her by telephone the week before the hearing and informed her that he would not be attending the hearing. 5. The practitioner was born in 1953 and was at the time of the hearing 62 years of age. The practitioner was admitted to the roll of the Supreme Court of NSW on 11 July 1980; and since 6 September 2000 was the sole principal of Hugh J Byrne Family Lawyer ['the Law Practice]. The Legal Profession Uniform Law 1. The complaints the subject of this application were made under Chapter 4 of the Act. The complaints to the applicant were made by the client of the practitioner on 20 December 2012 and related to the conduct of the practitioner in the period December 2010 to May 2012. The Investigation followed and the application number 1520116 was filed commencing the proceedings on 20 April 2015. 2. With effect from 1 July 2015, the Act was repealed and replaced by the Legal Profession Uniform Law (NSW) ("the Uniform Law"). There are savings and transitional provisions contained in Schedule 4 of the Uniform Law and Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW) ("The Application Act"). 3. Clause 126 of Schedule 4 of the Uniform Law applies to these proceedings. It relevantly provides that where a complaint has been made under the old Chapter 4, but not disposed of before the commencement day, then after the commencement day the complaint is to continue to be dealt with in accordance with the provisions of the Act (ie the Legal Profession Act 2004) and for that purpose the complaint is to continue to be dealt with by the "entity responsible for dealing with it under those provisions". 4. Accordingly, the proceedings have been dealt with in accordance with the provisions of the Act, rather than the Uniform Law (see also Council of the NSW Bar Association v Breeze [2015] NSWCATOD 152 (18 December 2015) at [41] to [47] and Council of the Law Society of NSW v Gates [2016] NSWCATOD 35 (30 March 2016) at [5] to [10]). Unsatisfactory Professional Conduct / Professional Misconduct 1. Section 496 of the Act applied at all relevant times and provided: Unsatisfactory professional conduct For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian Legal Practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner. 1. Similarly section 497 of the Act applied and provided: Professional Misconduct (1) For the purposes of this Act "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice; (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters; 1. Section 498 of the Act similarly applied and provided: 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules; (b) charging of excessive legal costs in connection with the practice of law; (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence; or (iii) an offence involving dishonesty; (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration; (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth; (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice); (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law); (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law; (2) conduct of a person consisting of a contravention referred to in subsection (1)(a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. The Evidence 1. The evidence before the Tribunal comprised: 1. Application filed 20 April 2015; and 2. Affidavit of John McKenzie, for the Legal Services Commissioner, affirmed on 16 April 2015 (123 pages, including copies of reports by Dr Olav Neilssen, Psychiatrist, of 15 July 2014). Findings 1. On 24 October 2013 the practitioner's then solicitor wrote to the Commissioner regarding the subject complaints from the complainant. In that letter the solicitor, on behalf of the practitioner, admitted every ground except ground 5. His response to ground 5 did not deny any element of ground 5. 2. The following particulars and grounds have on the evidence also been proved: 1. The complainant first retained the practitioner to act for him in relation to parenting proceedings in the Family Court in 2007. In 2007 final parenting orders were made between the complainant and his former partner. 2. In May 2010 the complainant commenced proceedings in the Family Court in relation to educational arrangements for his son. The practitioner acted for the complainant in this application. His former partner filed her Response to the application. 3. On 11 November 2010 the matter was heard. On 24 November 2010 Justice Ryan of the Family Court made orders in accordance with the Response filed by his former partner. On 8 December 2010 the complainant appealed these orders. 4. The complainant did not know that on 20 December 2010 an application had been filed seeking orders for costs in respect of the proceedings before Justice Ryan (the Costs Application). This application, which was listed for hearing on 15 February 2011, was served on the practitioner. The practitioner concedes that he did not inform the complainant of it. 5. On 24 January 2011 the Full Court of the Family Court dismissed the complainant's appeal. The complainant was ordered to pay the costs of the appeal. 6. On 14 February 2011 a further application was filed seeking orders. The practitioner concedes that he did not inform the complainant of this application. 7. The practitioner appeared on the complainant's behalf in relation to the further application and the Costs Application on 15 February 2011. 8. On 15 February 2011 the practitioner contacted the complainant and advised that he was at court on his behalf in relation to parenting matters. The practitioner did not discuss the application for costs nor seek the complainant's instructions to these matters. 9. On 17 February 2011 the practitioner wrote to the complainant regarding his court attendance on 15 February 2011. He did not inform the complainant that costs had been applied for on that day. 10. On 2 March 2011 Justice Ryan ordered the complainant to personally pay costs in the sum of $14,000. The practitioner concedes that he did not inform the complainant of this order. 11. On 19 May 2011 Newnhams Solicitors wrote to the practitioner proposing that the complainant pay half of the costs in relation to the appeal in the sum of $12,625.00. The practitioner concedes that he did not inform the complainant of this offer. 12. On 27 June 2011 the practitioner wrote to Newnhams Solicitors advising that the complainant agreed to pay the sum of $12,625.00 in full and final satisfaction of the costs in respect of the appeal. The practitioner concedes that the complainant did not instruct the practitioner to agree to the offer. 13. On 16 September 2011. the practitioner telephoned the complainant and advised that she had agreed to accept $12,000 in full and final settlement of her outstanding costs. 14. The complainant paid $8,000 into the trust account of Newnhams Solicitor on 16 September 2011. 15. By email to the complainant dated 22 September 2011 the practitioner incorrectly advised that Ms Kennedy had agreed to accept $12,000 as costs associated with the hearing before Justice Ryan and the appeal. 16. On 22 September 2011 the complainant paid the balance $4000 into the trust account of Newnhams. 17. On 17 November 2011 Newnhams wrote to the practitioner advising that the complainant had not paid the balance agreed costs of $625. The practitioner concedes that he did not inform the complainant of this letter. 18. On 12 March 2012 Ms Kennedy filed a Third Party Debt Notice in the Family Court against MLC and the Del Grande Family Trust seeking to enforce the payment of Ms Kennedy's costs as awarded on 2 March 2011 as well as the balance of Ms Kennedy's agreed costs in respect of the appeal. 19. The Third Party Debt Notice and supporting affidavit was served on the practitioner in March 2012. The practitioner concedes that he did not inform the complainant of this. 20. The Third Party Debt Notice was also served on the MLC, which then forwarded a copy to the complainant in May 2012. 21. The complainant emailed the practitioner on 22 May 2012 and advised that unless he received confirmation from Newnhams that they would instruct MLC to hold off on compliance with the Third Party Debt Notice, he would instruct another solicitor to act on his behalf. The practitioner did not respond. The complainant then instructed new solicitors, York Solicitors, to act for him. The practitioner forwarded the complainant's file to his new solicitors. 22. On 8 June 2012 York Solicitors acted for the complainant in filing further Terms of Settlement with Ms Kennedy, which relieved MLC of their obligation to comply with the Third Party Debt Notice, and made provision for the complainant to pay all outstanding costs owing to Ms Kennedy plus interest. 23. Pursuant to those Terms, the complainant had to pay $16,954.33 to Ms Kennedy with interest of $2,329.33. He also incurred legal costs of $8,026.65. He sought to recover the sum of $10,355.98 (being interest of $2,329.33 plus legal costs of $8,026.65). 24. In December 2013 the practitioner paid the amount of $10,355.98 to the complainant. Ground 1 - 1520116 1. The practitioner failed to inform the complainant of the following: 1. The Application filed on 20 December 2010 seeking orders for costs in respect of the proceedings before Justice Ryan. 2. That an application for costs had been made at the hearing on 15 February 2011. 3. The orders made by Her Honour Justice Ryan on 2 March 2011 that the complainant pay costs in the sum of $14,000. 4. The letter he received from Newnhams Solicitor dated 19 May 2011 or the proposal made in that letter. 5. The letter he wrote to Newnhams Solicitor dated 27 June 2011 proposing that the complainant pay the sum of $12,625 within 28 days from the date of that letter. 6. The letter he received from Newnhams Solicitor dated 17 November 2011 or the demand made in that letter. 7. That a Third Party Debt Notice and affidavit had been served on him in March 2012 or the existence of these documents. 8. That $625 remained outstanding in respect of the 5 costs order arising from the complainant's Appeal to the Full Court of the Family Court Particulars The Commissioner repeats paragraphs 1 to 24 herein. Ground 2 The practitioner did not obtain the complainant's instructions to make the proposal to Newnhams Solicitor that the complainant would pay the sum of $12,625 within 28 days from the date of his letter to Newnhams Solicitor dated 27 June 2011. Particulars The Commissioner repeats paragraph 14 herein. Ground 3 The practitioner failed to seek the complainant's instructions in respect of the following when he should have done so: 1. To prepare a Response to the Application filed on 20 December 2010. 2. To prepare a Response to the Application filed on 14 February 2011. 3. To prepare a response to the Third Party Debt Notice and affidavit filed on 12 March 2012. Particulars The Commissioner repeats paragraphs 4, 6 and 20 herein. Ground 4 The practitioner failed to provide the complainant with a copy of the following: 1. The Application filed on 20 December 2010. 2. The Application filed on 14 February 2011. 3. The Third Party Debt Notice and the affidavit in support. Particulars The Commissioner repeats paragraphs 4, 6 and 20 herein. Ground 5 The practitioner appeared on the complainant's behalf in relation to the Application filed on 20 December 2010 without: 1. The complainant's knowledge and instructions; and 2. Advising the complainant of the Court listing date. Particulars The Commissioner repeats paragraphs 4, 9, 10 and 11 herein. Ground 6 The practitioner incorrectly advised that she had agreed to accept $12,000 by way of full and financial satisfaction of all outstanding costs owing to her. Particulars The Commissioner repeats paragraphs 13 and 15 herein. Ground 7 The practitioner failed to respond to the complainant's correspondence to him dated 22 May 2012 in relation to the Third Party Debt Notice. Particulars The Commissioner repeats paragraph 23 herein. Conclusions 1. The 7 Grounds in the application have all been proved. 2. Unsatisfactory Professional Conduct or Professional Misconduct? 3. The grounds established in this application together constitute professional misconduct because they involve a substantial failure to maintain a reasonable standard of competence and a substantial failure to maintain a reasonable standard of diligence. They also satisfy the common law test of professional misconduct in Allinson v General Council for Medical Education and Registration [1894] 1 QB 750 as "reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency". It is conduct that such brethren would regard as both dishonourable and disgraceful. Mental health – Depression 1. The test as to whether a lawyer's conduct constitutes professional misconduct or constitutes unsatisfactory professional conduct is an objective test measured by the conduct, and the issue of any mental illness arises only in relation to the decision of what dispositive orders should be made (BRJ v Council of the NSW Bar Association [2016] NSWSC 146). 2. The practitioner raised no defence or excuse in this application but he did raise longstanding chronic depression in one of the Law Society matters and his solicitor in his letter of 24 October 2013 to the Commissioner, said that he had previously acted for the practitioner, the practitioner had recently consulted him and : Upon meeting Mr Byrne and his wife at my office at short notice it was readily apparent to me that Mr Byrne had not been functioning well for some time. I am not a medical practitioner but as the Commissioner and the Law Society would probably accept I have had extensive experience over many years acting for not only members of the legal profession, but indeed members of the judiciary and the wider community when they have been affected by mental illness. It was apparent to me that Mr Byrne may well have been suffering from a depressive type illness characterized by avoiding dealing with these complaints probably with the knowledge that he had not done the right thing by his former client. 1. He said he then made arrangements for the practitioner to see a psychiatrist, Dr Neilssen. On behalf of the practitioner he also offered a payment to the former client of compensation of $10,355.98, which the client paid in December 2013. 2. Most of the conduct the subject of the grounds in these proceedings occurred in the period from December 2010 to November 2011. All of it occurred before April 2012. The practitioner has provided no evidence of any direct effect of any depression contributing to such conduct and, more importantly, although he has said he has had problems with depression all his working life, there is no evidence that he sought medical advice, antidepressant medication or other therapeutic measures for depression in that period. It appears he next consulted Dr Neilssen about depression in November 2013. If he was troubled by depression when any of the subject conduct occurred, it appears he took no reasonable steps to overcome or manage any depression in that period. The Tribunal finds that in these proceedings there is no basis for depression to weigh in his support in deciding the outcome. Previous disciplinary proceedings 1. The practitioner has been the subject of prior disciplinary proceedings. In a decision of 23 November 1995 of the Legal Services Tribunal in the matter of Hugh James Byrne and the Legal Profession Act 1987) (23 November 1995 – unreported). 2. The practitioner was found to have committed professional misconduct by extensively lying in family law proceedings as to the progress of the matters and what was happening. 3. The Tribunal described his conduct as "an appalling dereliction of duty by the solicitor to the clients concerned, but also a failure to understand his duty to the public and his duty to the profession". 4. He also was found to have his client required to "swear, on oath, an affidavit in support of a proposed application to the Family Court that was incomplete as to most of its material aspects, namely the orders to be sought (both interim and final) dangerous to the circumstances and relevant facts relating to the proposed removal of the child from Australia". 5. The events documented in those proceedings occurred in the period from 1990 to 1992. 6. The Tribunal made the following orders: 1. The solicitor is severely reprimanded; 2. The solicitor is prohibited from practicing as a sole practitioner for a period of 3 years from the date of his order; 3. The solicitor [must] complete, satisfactorily, a course of office management as agreed between the law society with liberty to either party to apply to the Tribunal in relation to the implementation of this order; 4. That the cost of the Law Society be paid for by the solicitor, such costs to be assessed and if assessed by a Supreme Court Cost Assessor pursuant to the provisions of Part XI, Legal Profession Act; 5. If the parties cannot agree on the quantum of these costs, either party have [sic] liberty to apply to the Tribunal to determine the amount of those costs. 1. On 31 May 2000, the Administrative Decisions Tribunal dealt with further disciplinary proceedings against the practitioner in Legal Services Commissioner Byrne [2000] NSW ADT 70 (31 May 2000). 2. The complaints found proved in that matter included extensive failures to respond to letters and notices from the Legal Services Commissioner requiring information. He did not comply with the notices until the disciplinary proceedings had been commenced. In respect to requests to initiate evidence first sent to him on 10 November 1997 and 29 August 1997, he did not respond until 19 July 1999. 3. His conduct was found to be professional misconduct and the orders made by the Tribunal were: 1. The practitioner be publically reprimanded; 2. The practitioner is to pay a fine of $3,000 within a period of 12 months from the date of this order; 3. The practitioner is suspended from practice at the expiration of the said period of 12 months if the fine has not been paid and any suspension continued until the fine is paid; 4. The practitioner's practice is, for a period of 2 years commencing from the date of this order, to be subject to inspection at 3 monthly intervals at the expense of the practitioner by a suitably qualified solicitor appointed by the applicant or the Law Society after consultation with the respondent, such inspections to continue, notwithstanding any change in the constitution of the practitioner's firm; 5. The costs of the applicant to be paid by the practitioner as agreed or assessed. Conclusions as to Orders 1. Members of the public are entitled to expect that a member of the Legal Profession can be trusted and has integrity. The practitioner's conduct complained of in the 3 applications before the Tribunal involved deception and dishonesty. He has demonstrated disrespect for the Law Society and the Legal Services Commissioner in terms of his obligations to respond to their requests for information and to assist their investigations. 2. He has demonstrated substantial failures to achieve a reasonable level of competence and a reasonable level of diligence in acting for his clients in his chosen field of Family Law, including keeping his client informed and obtaining his client's instructions. He has a considerable history of not being trustworthy and of making misrepresentations to his clients and others, even the District Court. 3. His disciplinary record and the findings in the Law Society proceedings heard with this application establish that his dishonest and deceptive conduct has occurred over a considerable period. Despite prior disciplinary proceedings, he has not desisted from such conduct. 4. The public are entitled to trust their solicitors and rely upon them. They public are entitled to expect a solicitor to act with integrity. The practitioner has demonstrated that he does not have integrity and cannot be trusted by a client, nor by the Law Society or the Legal Services Commissioner. 5. In each of the 3 applications heard the practitioner has been guilty of professional misconduct. In the context of his prior professional misconduct, each justifies a finding that he is not a fit and proper person to engage in legal practice. 6. Together the grounds proved compel that finding and require that he be removed from the Roll. Costs 1. Pursuant to clause 23 of Schedule 5 to the Civil & Administrative Tribunal Act 2013 where there is a finding of professional misconduct in disciplinary proceedings, the Tribunal "must make orders for the legal practitioner to pay the costs of the Council (in this case the Commissioner) unless the Tribunal is satisfied that exceptional circumstances exist. 2. There are no exceptional circumstances disclosed by the evidence that require that such a cost order not be made. Orders 1. Accordingly, the orders of the Tribunal made 21 March 2016 were: 1. The respondent, Hugh James Byrne, is guilty of professional misconduct; 2. The name of the respondent is to be removed from the Roll of Solicitors; 3. In matter 1520116, the respondent must pay the costs of the Legal Services Commissioner of or incidental to the proceedings as agreed or assessed; 4. In each of matters numbered 1420166 and 1520188, the respondent must pay the costs of the Law Society of NSW of or incidental to the proceedings 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: 14 February 2017