Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of NSW v Webb [2018] NSWCATOD 55 Hearing dates: 9 April 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member L M Pearson, Principal Member (Legal) E Hayes, General Member Decision: Consequent upon the finding of professional misconduct which we have made, we make the following orders; 1. The Solicitor is reprimanded. 2. The Solicitor is fined the sum of $3,000. 3. The Solicitor pay the Applicant's costs fixed in the amount of $27,500 Catchwords: Legal practitioner – breach of undertakings – held constitute professional misconduct – orders made in terms of Instrument of Consent Legislation Cited: Legal Profession Act 2004 Cases Cited: Law Society of NSW v Berger (No 1) [2017] NSWCATOD 137 Council of the Law Society of NSW v Webb [2013] NSWCA 423 Category: Principal judgment Parties: The Council of the Law Society of NSW (Applicant) Peter James Webb (Respondent) Representation: Counsel: G Johnson (Applicant) D Lloyd (Respondent) Solicitors: Law Society of NSW (Applicant) Lighthouse Law Group (Respondent) File Number(s): 2016/0037 8655 reasons for decision 1. These proceedings are constituted by an application in which the applicant, The Council of the Law Society of New South Wales seeks an order that the respondent solicitor Peter James Webb be found guilty of professional misconduct within the provisions of the Legal Profession Act 2004 ("the Act") and that certain protective orders be made. Relevantly, the application is in the following terms; The applicant seeks the following order/s: 1. The Solicitor's name be removed from the Roll. 2. The Solicitor pay the Society's costs as agreed or assessed. 3. Any further or other order the Tribunal deems fit. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Solicitor is guilty of professional misconduct as set out below: 1. The Solicitor breached Rule 34.1 of the Revised Professional Conduct and Practice Rules 1995 (Rule 34.1) 2. Additionally and/or alternatively, the Solicitor made a false and misleading representation. 3. The Solicitor breached Rule 33 of the Revised Professional Conduct and Practice Rules 1995 (Rule 33) 4. Additionally and/or alternatively, the Solicitor breached undertakings. 5. The Solicitor breached section 674 of the Legal Profession Act, 2004 ('the Act') by attempting to obstruct and/or mislead a duly-appointed Investigator. 6. The Solicitor breached section 675 of the Act by with intent to hinder or otherwise interfere with a complaint investigation, destroyed or concealed documents that may provide evidence of a contravention of the Act or the Revised Conduct and Practice Rules 1995. 7. Additionally and/or alternatively, the Solicitor attempted to mislead the Investigator. 8. Additionally and/or alternatively, the Solicitor hindered and/or obstructed the Investigator. Particulars of Grounds of Complaint In these particulars: The Solicitor means Peter James Webb The Society means the Law Society of New South Wales. PARTICULARS 1. Between approximately 13 September 2007 and approximately 29 March 2010 the Solicitor applied to the New South Wales Roads and Traffic Authority ('the RTA') for certificates pursuant to section 230 of the Road Transport (General) Act 2005 ('certificates') as follows: 2. In support of each application the Solicitor gave an Undertaking to the RTA in the following terms: 'I, Peter James Webb, Solicitor of the Supreme Court of New South Wales, hereby undertake that I will use the information provided by the Roads and Traffic Authority of NSW from its motor vehicle registration/driver licensing records solely for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident but not for the enforcement of a judgement other than the subject of this specific undertaking.' 3. The Solicitor later obtained the said Certificates from the RTA and forwarded them or caused them to be forwarded to his client, Identisearch. 4. The Undertaking contained a representation which was false in that the solicitor knew that he would not use the information provided by the RTA '... solely for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident ... ' and thereby breached Rule 34.1 of the Revised Professional Conduct and Practice Rules 1995. 5. The said representation was misleading in that it was likely to mislead the RTA to form a view that the Solicitor would use any information provided by it to him solely for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident. 6. In dealing as he did with the information provided to him by the RTA the Solicitor failed to honour the said Undertaking and thereby breached Rule 33 of the Revised Professional Conduct and Practice Rules 1995. 7. On 19 July 2012 the Council of the Law Society of New South Wales appointed David Paul Courtenay ('the Investigator') to investigate inter alia the affairs of Webbsite Enterprises Pty Limited trading as Webb Lawyers. 8. In October and November 2012 the Investigator provided the Solicitor with copies of documents relevant to matters the subject of complaint. 9. By letter dated 13 December 2012 the Solicitor purported to provide the Investigator with a copy of his original file numbered 1240 relevant to matters the subject of complaint ('the copy file'). 10. By letter dated 21 February 2013 the Solicitor represented to the Investigator that : 10.1 he had taken exclusive possession of the original file no later than 20 July 2011; and 10.2 since that date he had not added anything to or removed anything from the original file. 11. Included in the copy file were copies of documents which had earlier been provided by the Investigator to the Solicitor and which the Solicitor had materially altered. 12. Included in the copy file was a letter dated 10 September 2007 from Identisearch, purportedly signed by Mr Danny Georgakilas and addressed to the Solicitor. That letter had been fabricated by the Solicitor. 13. Under cover of a letter dated 12 January 2013 the Solicitor, in response to the Investigator's request of 19 December 2012, purported to forward to the Investigator his original file. 14. On 15 January 2013 the Investigator received only the letter dated 12 January 2013. 15. The Solicitor has withheld his original file from production to the Investigator. 1. When the proceedings came on for hearing the parties, together with the Legal Services Commissioner, produced an Instrument of Consent under the provisions of section 564 of the Act and asked that the Tribunal make orders in the terms contained within that document. That section is in the following terms; 564 CONSENT ORDERS (1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were commenced, the requirement to conduct an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the commencement of proceedings in the Tribunal where consent was given before the proceedings are commenced. (8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so. 1. We asked the parties to address us concerning the terms of the Instrument of Consent, and certain documentation was admitted into evidence for the limited purpose of enabling us to consider whether and to what extent we would exercise our discretion to make the orders sought. At the end of that hearing we gave brief reasons for rejecting the Instrument, on the basis that the orders sought were, in all the circumstances, inappropriate. In summary, the respondent conceded that he had been guilty of professional misconduct, and the orders in their then current form were that he be reprimanded and that he pay the costs of the applicant fixed in the sum of $27,500. Consequent upon this interlocutory decision, the parties conferred and produced an amended Instrument of Consent, which is in the following terms; The Civil and Administrative Tribunal NSW having found that the conduct of Peter Webb described under the heading 'grounds of complaint" and particularised in the annexed Agreed Statement of Facts amounts to professional misconduct makes, by consent, the following orders: 1. The Solicitor is reprimanded. 2. The Solicitor is fined the sum of $3,000. 3. The Solicitor pay the Applicant's costs fixed in the amount of $27,500. AGREED STATEMENT OF FACTS Re: PETER JAMES WEBB In respect of the following ground of complaint Peter James Webb engaged in professional misconduct as set out in the following allegation: Grounds of complaint 1. Not pressed. 2. The Solicitor made a false and misleading representation. 3. The Solicitor breached Rule 33 of the Revised Professional Conduct and Practice Rules 1995. 4. The Solicitor breached undertakings. 5. Not pressed. 6. Not pressed. 7. Not pressed. 8. Not pressed. Particulars of Grounds of Complaint In these Particulars: 'the Solicitor' means Peter James Webb 'the Society' means The Law Society of New South Wales 1. In about 2007 the Solicitor was engaged to perform work for a client called Identisearch. Identisearch was engaged in the business of identifying and searching for people, and was primarily engaged in the business of 'skip tracing'. 'Skip tracing' is the task of locating a person who can no longer be located. Identisearch's clients for which Identisearch performed skip tracing and other services were debt collection companies, purporting to act primarily for financial institutions and insurance companies. 2. The work that the Respondent was engaged to perform for Identisearch was to obtain s.230 certificates from the New South Wales Roads and Traffic Authority (RTA) to be forwarded on to Identisearch. Identisearch sought the information from the Respondent's firm on behalf of its clients who were debt collection companies purporting to act on behalf of insurance companies. 3. In order to obtain a s.230 certificate from the RTA it was a requirement that a solicitor give an undertaking that he or she will use the information provided by the RTA solely for the purpose of commencing legal proceedings in respect of a motor traffic accident but not for the enforcement of a judgment other than the subject of the specific undertaking. The reason an undertaking of this kind was required was in order to protect the privacy of the information of the registered owners of motor vehicles in New South Wales and licence holders. In providing a s.230 certificate to a solicitor in response to their undertaking the RTA placed its faith and trust in the solicitor, which privilege was not extended to other classes of person. 4. Between September 2007 and March 2010 the Respondent on 10 separate occasions applied to the RTA pursuant to s.230 of the Road Transport (General) Act 2005 (NSW) for a total of 281 certificates. In support of the certificate requests the Respondent provided to the RTA on each of the 10 occasions an undertaking (Undertaking) in writing in the following terms: I, Peter James Webb, Solicitor of the Supreme Court of New South Wales, hereby undertake that I will use the information provided by the Roads and Traffic Authority of NSW from it's [sic] motor vehicle registration/driver licensing records solely for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident but not for the enforcement of a judgement [sic] other than the subject of this specific undertaking. 5. Prior to February 2009 the practice of Identisearch was to send to Webb Lawyers a completed RTA 'Request for Information' form, which the Respondent then sent to the RTA, along with the Undertaking. From about February 2009, the Respondent advised Identisearch that the RTA would, instead of a 'Request for Information' form, accept a table or schedule with the following information : (a) Your Reference Number; (b) Date of Accident; (c) Vehicle Registration Number; (d) Type of Vehicle; (e) Full Name of Licence Holder; (f) Reason for Requiring Information; (g) Type of Certificate Required. 6. From that point on Identisearch sent to the Respondent a schedule which the Respondent then used as the basis of his request to the RTA for the certificate. 7. The Respondent obtained the Certificates from the RTA and forwarded them or caused them to be forwarded to Identisearch. Identisearch used the information for the purpose of locating debtors to assist its clients with debt recovery. 8. In about 2008 the business was taken over by Frank and Lucy Cirrone. From 2008 Identisearch continued to request, and Webb Lawyers continued to provide, services in the nature of requests for information from the RTA. The Undertakings contained false and misleading representations 9. Each of the Undertakings contained a representation. The representation was that the Respondent will use the information from the RTA solely for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident (Representation). 10. The Representation was a false and/or misleading representation, although it is not alleged that the Solicitor acted dishonestly in giving the Undertakings, or that when he gave the Undertakings, he knew or reasonably believed, that the Representation they conveyed was false or misleading. 11. The Representation was false in that it was not correct at the time the Respondent gave the Undertakings that he intended, or was instructed by his client, to use the information sought from the RTA solely for the purpose of commencing or conducting motor accident litigation. The Respondent says that he believed his client, Identisearch, would use the information to commence proceedings and that he believed 'my firm may get the work and that would be valuable'. 12. Identisearch did not send any litigation work to the Respondent's firm arising out of the motor vehicle registration information obtained from the RTA. 13. The Representation was false in that not only was Webb Lawyers not engaged to perform motor vehicle accident work in connection with the requests for s.230 certificates, but for the most part, the vehicles the subject of the RTA requests had not even been involved in accidents. The evidence demonstrates that at least in respect of the Undertakings given by the Respondent on 16 December 2009, 2 February 2010, 18 March 2010 and 29 March 2010 that most of the vehicles the subject of the requests for certificates had no corresponding entry in the NSW Police 'COPS' system, upon which basis the Tribunal would readily infer that those vehicles had not been involved in accidents. 14. The Representation was misleading in that it conveyed to the RTA that the Respondent would use the information sought for the purpose stated in the Undertaking in circumstances where he had no intention, or instructions, to use the information for that purpose. The Respondent made no enquiries with Identisearch as to whether the information supplied to him was accurate, and he made no enquiries or attempts at any time to confirm with Identisearch that the information he was obtaining from the RTA was going to be used for the purposes referred to in the Undertakings. The Respondent breached the Undertakings 15. The Respondent breached each of the 10 Undertakings he gave to the RTA. The Practice Rules provide as follows: 33. Undertakings A practitioner who, in the course of providing legal services to a client, and for the purposes of the client's business, communicates with a third party orally, or in writing, in terms which, expressly, or by necessary implication, constitute an undertaking on the part of the practitioner to ensure the performance of some action or obligation, in circumstances where it might reasonably be expected that the third party will rely on it, must honour the undertaking so given strictly in accordance with its terms, and within the time promised (if any) or within a reasonable time. 16. The terms of the Undertaking required that the Respondent (himself) will use the information provided by the RTA from its motor vehicle registration/driver licensing records solely for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident but not for the enforcement of a judgment other than the subject of the specific undertaking. In a breach of the Undertakings the Respondent: (a) did not use the RTA records he received for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident. (b) at the time of giving the Undertakings neither intended, nor had instructions from Identisearch, to use the information for this purpose. (c) at the time of giving the Undertakings was unaware (but appears simply to have assumed with no reasonable basis for his assumption) that Identisearch would use, or had an intention to use, the information from the RTA for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident. (d) further, was not aware (and made no enquiries with Identisearch at all to ascertain) whether the information sought from the RTA even related to vehicles that had been involved in motor accidents (and had he made such enquiries, he would have discovered that for the most part the information sought from the RTA did not relate to vehicles involved in motor accidents). 1. We then proceeded to hear the application made by all of the parties, including the Legal Services Commissioner that we make orders consistent with the amended Instrument of Consent. These reasons for decision contain our consideration of this application and our reasons for making those orders. We apprehended that the parties did not require us to produce written reasons for having rejected the Instrument in its original form. The factual background 1. We should state at the outset that we are satisfied that it was appropriate for the applicant to have abandoned grounds 1, and 5 to 8 of the original application because of certain information furnished to us by counsel for the applicant. 2. The factual circumstances giving rise to these proceedings are adequately summarised for present purposes in the Instrument of Consent set out above. In addition, the respondent tendered an Affidavit, gave sworn evidence and provided a number of character references. 3. The respondent was admitted as a solicitor in New South Wales on 25 August, 2000. After working for a short time as an employed solicitor he formed his own Incorporated legal practice on 1 May, 2003 and operated that practice until 31 March, 2010. Thereafter he worked as a locum until 1 April, 2011 and then relocated to Western Australia to practice at the bar. He resumed practice as a solicitor in New South Wales on 6 August, 2013 and has continued to practice in this State since that date. He is now an employed solicitor in a small law firm undertaking, in the main, a practice in criminal law. 4. In his oral evidence the respondent emphasised that it was always his intention to fulfil the obligations in the undertakings given by him to the RTA. However, because of the arrangements which were made with Identisearch, he lost control over any ability to verify the information provided in the undertakings and was reliant on representations which he said had been made to him by Identitisearch that the certificates were being sought in connection with motor accidents, and that he did not appreciate that he was being misled. He agreed that he had, in effect, been naïve because he never received any instructions to commence any proceedings relating to a motor accident from that company. This was despite a period of about 2 ½ years during which he had made applications for certificates. He also readily conceded that he should have accepted greater responsibility in supervising staff who presented applications for certificates and forms of undertaking for him to sign. 5. The respondent gave evidence that he has suffered in the past from a number of disabling medical conditions which are now under control. 6. The respondent said that he was "sorry and embarrassed" by the circumstances surrounding these proceedings and that his embarrassment was exacerbated by the fact that family members and many friends are solicitors. He has informed his current employer about these proceedings and, she is one of his referees. Two character references were provided by solicitors who have worked with the respondent, one of whom is now his employer, and references were also provided by a real estate agent and an IT service provider who have had dealings with the respondent. They are all aware of the nature and extent of the allegations made against the respondent in these proceedings and all attest to his overall good character and integrity. Professional misconduct 1. By the terms of the Instrument of Consent the respondent has conceded that he is guilty of professional misconduct. This misconduct is defined in the Act in the following terms; 497 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. It will be observed that the definition includes unsatisfactory professional conduct which, in terms, is defined in the Act as follows; 496 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. We observe at the outset that we are satisfied to the requisite Briginshaw standard that the respondent is guilty of professional misconduct as defined in section 497 (1) (a) of the Act, and it is only necessary that we deal with this provision in determining these proceedings. The essence of the misconduct of the respondent is his failure to honour the undertakings given to the RTA. This is not a case of a deliberate, intentional failure, but one where the respondent has failed to take appropriate and necessary steps to ensure that the undertakings which he gave on several occasions were true. It is correct that the respondent did make initial enquiries of Identisearch, and for this he should be given credit. His misconduct is mitigated to this extent, and this will be reflected in our assessment as to the appropriateness of the protective orders to be made. 2. We regard the giving of undertakings by legal practitioners in the course of carrying on their profession as matters of great seriousness, and which command compliance except in significant extenuating circumstances which, in most cases, would be out of the control of the legal practitioner or not reasonably foreseeable by him or her. It is not necessary that we revert to authority for this principle. It is well recognised that the practice of law involves a close interrelationship with the legal system which will only operate to the advantage of the community and the state if the word of legal practitioners can be accepted without reservation. In addition the prevalence of the work of legal practitioners in all aspects of trade and commerce in the community requires that their work including the giving of undertakings be of an appropriate standard, without which there would be an adverse consequence for society. The practice of law is an honourable profession and its members are required to act honourably at all times. We regard this matter seriously and we regard the breach by the respondent of the undertakings given by him in all the circumstances to constitute professional misconduct, as he properly conceded. The solicitor's failure to maintain a reasonable standard of competence and diligence was both substantial, and consistent, given the number of certificates obtained and the number of occasions on which they were requested. 3. Although counsel for the respondent did not seek to argue vehemently against a finding of professional misconduct, he did direct our attention to a recent decision of this Tribunal in Law Society of NSW v Berger (No 1) [2017] NSWCATOD 137. In those proceedings the Tribunal was dealing inter alia with a proven failure by a solicitor to honour on two occasions undertakings given to the Office of Legal Services Commissioner and a failure to comply with an order of the Supreme Court of NSW. The solicitor had furnished an undertaking to the Office of Legal Services Commissioner on 15 March 2012 to ensure that he would comply with the statutory requirements to make certain costs disclosures to clients. The Tribunal found that this undertaking had been breached in connection with services provided by the solicitor to two separate clients. The Tribunal held that each of these breaches constituted unsatisfactory professional conduct. The Tribunal also held that a failure to comply with an order of the Supreme Court also constituted unsatisfactory professional conduct. Whilst we confirm that the principle of comity should ordinarily operate so as to create consistency in Tribunal decisions, we respectfully observe that in the absence of a significant exculpatory matter, a failure by a solicitor to honour an undertaking given in the course of the conduct of his or her practice will ordinarily, per se, constitute professional misconduct as will a failure to comply with an order of a court or tribunal. 4. Having regard to the finding of professional misconduct which we formally make, we are satisfied that it is appropriate that we make the consequential orders reflected in the provisions of the Instrument of Consent as amended. As we have previously observed, there is no indication of any deliberate and intentional breach of the undertakings, although clearly the respondent did not adequately address himself to ensure compliance. 5. We should add that the respondent has previously come to the attention of the applicant, and this matter is the subject of reported proceedings in Council of the Law Society of NSW v Webb [2013] NSWCA 423. We note that the misconduct of the respondent was entirely unrelated to that with which we are dealing, that he was found guilty of unsatisfactory professional conduct and was the subject of a reprimand, a fine and an adverse costs order. 6. In concluding that the proposed consent orders are appropriate we also take into account the references given in favour of the respondent, and his personal expression of contrition and remorse for what has occurred as well as his evidence of his insight gained into the necessity to ensure that any undertakings given in the course of his practice are capable of compliance and are, in fact, complied with. Orders 1. Consequent upon the finding of professional misconduct which we have made, we make the following orders; 1. The Solicitor is reprimanded. 2. The Solicitor is fined the sum of $3,000. 3. The Solicitor pay the Applicant's costs fixed in the amount of $27,500 ******** 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: 23 April 2018