Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Weller [2017] NSWCATOD 38 Hearing dates: 20 February 2017 Date of orders: 17 March 2017 Decision date: 17 March 2017 Jurisdiction: Occupational Division Before: Hon. B Tamberlin QC, Principal Member M Riordan, Senior Member M Bolt, General Member Decision: The Tribunal finds the Respondent guilty of professional misconduct and orders; (1) The Respondent is reprimanded (2) The Respondent is to pay the Applicant's costs, as agreed or assessed. Catchwords: Disciplinary application – Solicitor – Breach of condition imposed upon Practising Certificate –Professional misconduct – Previous reprimand Legislation Cited: Civil and Administrative Tribunal Act 2013 (No. 2) Legal Profession Act 2004 Legal Profession Uniform Law (NSW) 2014 Cases Cited: Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 564 Council of the Law Society of NSW v Gallego [2014] NSWCATOD 102 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) John Weller (Respondent) Representation: Solicitors: C Groenewegen (Applicant) In Person (Respondent) File Number(s): 1620252 Reasons for Decision Background 1. On 2 November 2016, the Council of the Law Society of New South Wales ("the Applicant") filed an Application for Disciplinary Findings and Orders, which alleged that John Donald Weller ("the Respondent") was guilty of professional misconduct on a single ground, namely that he contravened a condition on his Practising Certificate. 2. The Applicant sought orders that the Respondent: (1) be reprimanded; (2) be fined; (3) pay the Applicant's costs; and (4) be subject to any other order as the Tribunal deems fit. 3. The Application set out the following particulars: 1. Acting under powers delegated by the Applicant on 17 January 2013, the Professional Conduct Committee [PCC] when dealing with a complaint against the Respondent on 7 November 2013, resolved relevantly as follows [Resolution]: Resolved that 1. the Committee is satisfied that: (i) there is a reasonable likelihood JOHN WELLER ("the legal practitioner") would be found by the Tribunal to have engaged in unsatisfactory professional conduct, and (ii) the legal practitioner is generally competent and diligent; and (iii) the taking of action is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the legal practitioner. 2. the Committee hereby: A. reprimands the legal practitioner. (Section 540(1) and (2)(b) of the Legal Profession Act, 2004); and B. determines that the following conditions be imposed on the legal practitioner's practising certificate (Section 540(1) and (2)(d) of the Legal Profession Act, 2004): (1) Within six (6) months of the date of the letter notifying the legal practitioner of the Committee's determination, the legal practitioner is to undertake and successfully complete with a pass mark of not less than 50%, at his own expenses, a course approved by the Manager, Professional Standards Department, on Trust Accounting (the Course); and (ii) Within seven (7) days of receipt of the result of the Course, the legal practitioner is to provide the Manager, Professional Standards Department, with the original result notification from the provider of the Course. Unsatisfactory Professional Conduct 1. Breach of section 354 of the Legal Profession Act, 2004; and 2. Failure to provide costs disclosure (in part). 2. By letter dated 12 November 2013, the Law Society advised the Respondent Solicitor of the Resolution [Notification Letter]. 3. By letter dated 26 November 2013, to the Respondent Solicitor, the Law Society forwarded the details of a course approved by it as compliant with the Resolution [Course]. [Ref: Ex AMF1 at 19] 4. The effects of the Resolution and the Notification Letter were that the Respondent was required to: a. Successfully complete the Course by 12 May 2014; and b. Send to the Law Society the original results notification within a week of receiving the same. Ground: Contravention by the Respondent of a Condition of his Practising Certificate 5. By letters dated 23 April 2-14, 1 May 2014 and 30 May 2014, the Respondent's personal assistant, Ms Robyn Sheffield, wrote to the Law Society: a. stating that the Respondent had enrolled and paid for the Course in March 2014; b. stating that the Respondent had been ill; and c. seeking an extension of time by four to five months for the Respondent to complete the Course. [Ref: Ex AMF1 at 24-25, 28] 6. No extension of time to complete the Course was granted. 7. On 13 April 2015, the Respondent telephoned the Law Society and confirmed that whereas in March 2015 he had dome some study in relation to the Course, he had not completed the Course. [Ref: Ex AMF1 at 39] 8. By fax dated 18 May 2015 to the Law Society, the Respondent advised that: a. On 8 May 2015 he sat for an examination component of the Course; and b. He failed the examination subject to a second independent marking. [Ref: Ex AMF1 at 46] 9. On 19 May 2015, the Law Society informed the Respondent that if he were required to re-sit the examination, the Law Society would allow him until 8 July 2015 to notify it of his completion of the Course so as to avoid a recommendation to the Applicant to refuse his application for a practising certificate for the practice year ending 30 June 2016. [Ref: Ex AMF1 at 47] 10. By fax dated 1 July 2015, the Respondent wrote to the Law Society informing it: a. that on 25 June 2015 he received an email confirming that he had failed the examination and was required to re-sit it; and b. seeking a further extension of time for four weeks after 8 July 2015 to re-sit the examination. [Ref: Ex AMF1 at 50] 11. On 16 July 3025, the Respondent informed the Law Society that he was scheduled to re-sit the examination on 5 August 2015. [Ref: Ex AMF1 at 59] 12. By letter dated 20 July 2015, the Law Society extended to 18 August 2015 the time available for the Respondent to notify it of his successful completion of the Course so as to avoid a recommendation to the Applicant to refuse his application for a practising certificate for the practice year ending 30 June 2016. [Ref: Ex AMF1 at 60] 13. On 18 August 2015, the Respondent emailed the Law Society informing it that he had successfully completed the Course, sending evidence of the same on 24 August 2014. [Ref: Ex AMF1 at 63, 65-66] 14. In the circumstances described in above, during the period 12 May 2014 to 18 August 2015, in breach of s 58 of the Legal Profession Act, 2004, the Respondent contravened a condition imposed on his practising certificate… 1. The Respondent filed an Amended Reply on 13 February 2017, in which he generally admitted the particulars of the application, but disputed that he was guilty of professional misconduct, essentially on the basis that he notified the Applicant of health reasons that resulted in the delay in completing the approved course. Evidence 1. The Applicant relied upon an Affidavit sworn by its Solicitor, Anne-Marie Foord, on 17 October 2016 and a separate Exhibit – AMF1. 2. The Respondent relied upon an Affidavit that he swore on 5 December 2016. 3. These Affidavits were read without objection and neither party was required for the purposes of cross-examination. Jurisdiction 1. The complaint was made before 1 July 2015, when the Act) was repealed and the Legal Profession Uniform Law 2014 (NSW), (the Uniform Law) commenced. The Transitional provisions in the Uniform Law govern whether the Application must be determined under the LPA or the Uniform Law. 2. In January 2017, the Law Society lodged an Outline of Submissions to the effect that Sch 4 cl 26 of the Uniform Law obliges the Tribunal to determine the Application under the LPA. Cl 26 refers to complaints that were commenced prior to 1 July 2015 'but not disposed of before that date', and relevantly provides that such complaint is to continue to be dealt with 'in accordance with the provisions in the old legislation' (in this case, the LPA). 3. The Court of Appeal considered the Transitional provisions of the Uniform Law in the matter of Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 564. The Court considered an issue that was not raised in the Law Society's submissions, namely the meaning of the words "disposed of" in the context of cl 26. Sackville JA, with whom the other members of the Court agreed, found that when an Application for Disciplinary Findings has been made to this Tribunal with respect to a complaint, the complaint is not disposed of until it has been finally determined by the Tribunal [63 - 72]. As these proceedings have not been finally determined, the LPA continues to apply to it. 4. The Court of Appeal also confirmed that sch 4 cl 26 of the Uniform Law, and not the general Transitional provisions (found in sch 2 cl 2 of the Uniform Law) apply in these circumstances. We note that sch 2 cl 2 may have rendered the Uniform Law applicable to this matter [73]. Relevant Legislation 1. S 58 (1) of the Act provides: Compliance with conditions (1) The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject. Maximum penalty: 100 penalty units. 1. S 496 of the Act provides: 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. S 497 (1) of the Act provides, relevantly: Professional Misconduct 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, … 1. S 498 of the Act provides, relevantly: 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, … (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. 1. S 540 of the Act provides, relevantly: 540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions (1) This section applies if: (a) either: (i) the Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or (ii) the report of an independent investigator is given to the Commissioner, and (b) the Commissioner or Council (as the case requires): (i) is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and (ii) is satisfied that the practitioner is generally competent and diligent, and (iii) is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner. (2) The Commissioner or Council may do any or all of the following: (a) caution the practitioner, (b) reprimand the practitioner, … (d) determine that a specified condition be imposed on the practitioner's practising certificate… (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner. 1. Sch 5 cl 23 of the Civil and Administrative Tribunal Act 2013 (No. 2) provides, relevantly: 23 Costs consequent of adverse conduct findings (1) Despite section 60 of this Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. … (7) An order for costs may specify the terms on which costs must be paid. Consideration 1. The Respondent comes before this Tribunal in circumstances where he was previously issued with a reprimand and had a condition imposed upon his practising certificate by the Applicant, by way of summary resolution of a complaint that was made against him. He contravened that condition and in so doing, he breached s 58 of the Act and remained in breach during the period from May 2014 to 18 August 2015. 2. Under s 498 (1) (a) of the Act, the Respondent's conduct is capable of being categorised as either unsatisfactory professional conduct or professional misconduct. 3. The Respondent did not apply for administrative review of the Applicant's decision dated 7 November 2013. As a result, we are not required to determine whether that decision was the correct and preferable one in all of the circumstances. However, we are satisfied that as the complaint against the Respondent concerned his failures to deposit trust monies into a trust account and to make full costs disclosure, the condition that the Applicant imposed upon his practising certificate was reasonable and appropriate. 4. The available evidence indicates that the Respondent was admitted as a Legal Practitioner on 16 December 1981. We note that at all relevant times since 23 April 1982, he has held a Practising Certificate as a Sole Principal. 5. The evidence indicates that the Respondent's personal assistant wrote to the Law Society on 20 April 2014, 1 May 2014 and 30 May 2014, respectively, advising it that the Respondent had enrolled and paid for the approved course in trust accounting in March 2014, but that he had been ill. She requested an extension of time of 4 to 5 months for him to complete the course and submitted some medical certificates of a vague and general nature in support of that request. 6. However, the Applicant did not grant the extension and the Respondent failed to follow-up this request with the Applicant. On 3 June 2014, the Manager, Professional Standards Department wrote to the Respondent, pointing out that none of the medical evidence submitted in support of his request for extension actually indicated that he was unable to complete the course. She also advised the Respondent that she would refer his request to the Professional Conduct Committee at its meeting on 29 May 2014, at which time it would need to consider why, if his medical condition hampered the completion of the course, it should not also consider that he was unable to attend to his daily practice requirements as a Sole Principal. The Manager stressed that she could not grant the requested extension and that if the Respondent wished to provide material in further support of his application for an extension he should do so by return mail. 7. However, the Respondent did not respond to that letter. We regard this as surprising noting that the Manager's letter post-dated the meeting of the Professional Conduct Committee that she referred to in her letter. 8. On 13 April 2015, the Manager, Professional Standards Department wrote to the Respondent, observing that he appeared to have contravened the condition on his Practising Certificate and notifying him that she proposed to recommend to the Professional Conduct Committee that it should act to immediately suspend his Practising certificate for the year ended 30 June 2015. She served a Notification of intention to move to suspend the Respondent's practising certificate under s 61 of Act with her letter. 9. Receipt of this letter appears to have galvanised the Respondent into action. He replied to this letter on 4 May 2015, setting out details of his disability (he is legally blind) and also disclosed a serious illness that his daughter had contracted. He submitted a detailed medical report from Dr Watson–Monro, psychologist, which contained a detailed history of these matters, by way of an explanation for his failure to successfully complete the trust accounting course within the required time. 10. During the hearing of the matter, the Respondent submitted that as a result of these problems, he closed his practice for a period of 6 weeks from mid-December 2014 until early-February 2015. When he re-opened his practice, he immediately commenced discussions with the College of Law to arrange a satisfactory way for him to undertake the course and complete the examination as, owing to his legal blindness he could not complete it on-line. As a result, he downloaded the course in February 2015, and he then completed and submitted a manual workbook, which he submitted to the College of Law for marking. 11. The Respondent submits that he was not passive in relation to the approved trust accounting course and that he was actively engaged in attempting to complete it during 2015. He states that he took steps, at least initially, to comply with Committee's Resolution, but he concedes that he failed to notify the Applicant of his efforts before April 2015. He also concedes that his actions after April 2015 were taken while he was under the threat of a suspension of his Practising Certificate. 12. The Applicant does not dispute that the Respondent and his daughter suffered from a disability and/or illnesses during the period from May 2014 to 18 August 2015, but it submits that these do not of themselves support a decision to not make a finding adverse to the Respondent as a result of his breach of the condition on his Practising Certificate. 13. In any event, we note that during relevant period, the Applicant permitted the Respondent to continue practising as a Sole Principal. This represents a considerable indulgence in the Respondent's favour on Applicant's part. Applicant's Submissions 1. The Applicant submits that the Respondent's conduct should be categorised as professional misconduct, as he demonstrated a substantial or consistent failure to maintain a reasonable standard of conduct and diligence, particularly in relation to the management of his trust account. This is more than mere simply unsatisfactory professional conduct. 2. The Applicant submits that the condition that was imposed upon the Respondent's Practising Certificate was appropriate and represented an important for protection of those members of the public who entrusted funds to him in the course of his legal practice. The proper management of trust monies is a substantial obligation for legal practitioners and the condition required the Respondent "up-skill" in trust accounting. Until he had successfully completed and passed the approved course, he could not be regarded as competent the management of trust accounts. 3. The Applicant argued that when the Respondent failed to complete the approved course within the specified timeframe, he should have ceased practice and surrendered his Practising Certificate until he had become sufficiently competent. However, the Respondent did not do this and he continued to practise despite lacking the required level of competence in dealing with entrusted funds. The lack of competence persisted over a period of about 15 months - from May 2014 until early August 2015 4. The Applicant also submitted that the Respondent's failure to make any contact with the Applicant after he received its letter dated 3 June 2014 and until the Applicant raised the prospect of suspending his Practising Certificate, further demonstrated a substantial and consistent lack of diligence on the Respondent's part. 5. The applicant referred the Tribunal to the decision in Council of the Law Society of NSW v Gallego [2014] NSWCATOD 102 at [58]- [76], as authority for the proposition that contravening a condition upon a solicitor's practising certificate can be characterised as professional misconduct. However, the Applicant did not submit that the facts in Gallego are comparable to this matter. 6. In relation to the issue of the orders that the Tribunal should make, the Applicant submits that a mere reprimand is insufficient, bearing in mind that the current conduct occurred after the Professional Conduct Committee had issued a reprimand under s 540 of the Act and the reprimand had not acted as a deterrent. It argued that a fine should also be imposed. It also sought an order for the payment of its costs, pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 (No. 2), on the basis that there was no evidence of any exceptional circumstances. Respondent's Submissions 1. The Respondent admits the facts alleged in the Application. He conceded that he required further education in relation to trust accounting and said that he was thankful for having completed the course as he has found it of great benefit. He expressed regret for failing to comply with the condition on his Practising Certificate. In essence, he submits that he intended to complete the approved course within the required time, but that he was unable to so as a result of his physical disability (legal blindness) and a cancer scare and subsequent psychological problems and the serious illness that was suffered by his daughter. 2. The Respondent submits that his conduct should not be categorised as professional misconduct because of these problems. He admits that he ought to have contacted the Applicant about these problems at an early stage, but says that he was not able to do so as he was physically and psychologically unwell. 3. The Respondent submitted that a further reprimand is not necessary and that a fine is not appropriate, for the following reasons: 1. He is a competent solicitor who had only 2 major clients during the relevant period and there were very few occasions in which he was required to manage trust monies during that time; 2. He enrolled and paid for the approved course before the deadline (in May 2014); 3. Between February and August 2015, he was engaged in discussions with the College of Law regarding the completion of the approved course, which is evidence of his intention to comply with the condition on his Practising Certificate; 4. There is no evidence that he acted in any incompetent way in relation to trust account matters during the relevant period; and 5. He has been a solicitor since 1982 and has never had his Practising Certificate suspended. Determination 1. It has long been established that this Tribunal's role is protective and is aimed at protecting clients and members of the public from harm that could be caused by incompetent and non-diligent legal practitioners, rather than being punitive. The Tribunal's disciplinary jurisdiction is aimed at ensuring the maintenance of high professional standards within the Legal Profession. 2. The circumstances in which the condition was imposed on the Respondent's Practising Certificate have been discussed previously in this decision. However, it is important to note that this was imposed under s 540 of the Act, which required the Applicant to be satisfied that there was a reasonable likelihood that the Tribunal would find the Respondent guilty of unsatisfactory professional conduct, but that he was otherwise considered to be competent and diligent. 3. There is no dispute that the Respondent breached the condition on his Practising Certificate and that this breach lasted more than 14 months. It further appears that he was only galvanised into action regarding the completion of the approved course after he received the Applicant's letter dated 9 April 2015, which threatened the immediate suspension of his Practising Certificate. 4. It is possible that if the Respondent had not received the Applicant's letter dated 9 April 2015, he would have remained in breach of the condition for a longer period. However, in any event, he did not actively pursue the Applicant for an extension of time to complete the approved course and the he did not personally contact the Applicant about an extension of time in 2014 (the letters that were sent to the Applicant during this period were written by his personal assistant). 5. The Respondent was not entitled to simply assume that the Applicant would grant the extension. However, even if this had been granted, he did not complete the approved course within the term of that extension. 6. In our view, the issue of whether the Respondent's conduct should be categorised as professional misconduct must be undertaken objectively. While we are sympathetic to the situation that the Respondent encountered during the relevant period as a result of his physical disability and the illnesses that he and his daughter suffered, we do not consider those subjective matters as providing an effective defence to the ground of the application. 7. However, on an objective basis, we note that despite these problems the Respondent was able to practice law as a Sole Principal for most of the relevant period (we accept his evidence that he closed his practice for a period of about 6 weeks from late 2014 until early February 2015). He has also not provided any persuasive explanation for his failure to contact the Applicant during the period after June 2014 and 9 April 2015. 8. In any event, the Respondent continued to practice contrary to the condition of his Practising Certificate in breach of s 58 of the Act until he successfully completed the approved course and submitted the original result notification to the Applicant. 9. We are satisfied that the Respondent's conduct fell 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 and that he demonstrated a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence during the relevant period. As a result, we are satisfied that the Respondent's conduct is properly categorised as professional misconduct. Considerations regarding Penalty 1. We are satisfied that it is appropriate to reprimand the Respondent. 2. The Applicant also submits that the Respondent should be fined, particularly in view of the fact that the previous reprimand under s 540 of the Act failed to operate as a deterrent. However, this is opposed by the Respondent, essentially on the basis that he always intended to complete the approved course, but he did not complete it in time due to his medical and other problems that were "real and very substantial" during the relevant period. 3. The Tribunal accepts the Respondent's evidence that he intended to satisfy the condition and that his failure to do so was largely attributable to the problems that he has disclosed. We also consider that if he had notified the Applicant of these difficulties and of his efforts to complete the course in a more-timely manner he may not have found himself in his current predicament. 4. In these circumstances, the Tribunal does not consider that the imposition of a fine is required to protect the public and educate members of the legal profession. 5. In reaching this view, we are cognisant of the fact that as we have found him guilty of professional misconduct, and as there is no evidence of any exceptional circumstances, we are required to make an order that the Respondent pay the Applicant's costs. Orders The Tribunal finds the Respondent guilty of professional misconduct and orders; 1. The Respondent is reprimanded 2. The Respondent is to pay the Applicant's costs, as agreed or assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar and Director ********** 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: 17 March 2017