Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Titmarsh [2018] NSWCATOD 179 Hearing dates: 22 September 2017 Date of orders: 31 October 2018 Decision date: 31 October 2018 Jurisdiction: Occupational Division Before: Craig QC, ADCJ, Principal Member N J Matkovich, Senior Member J L Schwager AO, General Member Decision: 1. The Application in proceedings 2017/00162477 is dismissed; 2. In proceedings 2017/00063343, direct that within 7 days from the date of these reasons the parties must jointly approach the Registrar for the purpose of fixing a date for hearing to determine the terms of any orders that should be made consequent upon our finding that the conduct of the respondent constituted unsatisfactory professional conduct within the meaning of the Legal Profession Act 2004. Catchwords: LEGAL PRACTITIONERS – solicitor – disciplinary proceedings – delay in attending to the affairs of a client – unsatisfactory professional conduct – statement of fact sworn to by solicitor in an affidavit – belief in the truth of the statement at time of swearing affidavit – no basis upon which to challenge that belief as unreasonable or reckless – subsequent event showed the facts to be untrue – in circumstances conduct neither professional misconduct nor unsatisfactory professional conduct Legislation Cited: Legal Practitioners Act 1898-1954 (NSW) (repealed) Legal Profession Act 2004 (NSW) (repealed) Legal Profession Uniform Law 2015 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Law Society of New South Wales v McElvenny [2002] NSWADT 166 Law Society of New South Wales v Thurairajah [2002] NSWADT 207 Legal Services Commissioner v Hackett [2006] QLPT 015 Re Hodgekiss (1962) 79 WN 163 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Shaun Michael Titmarsh (Respondent) Representation: Counsel: P A Maddigan (Applicant) J Lynch SC with J Heazlewood (Respondent) Solicitors: Council of the Law Society of New South Wales (Applicant) Watts McCray Lawyers(Respondent) File Number(s): 2017/00063343, 2017/00162477 REASONS for decision 1. Shaun Michael Titmarsh has practised as a solicitor for more than 33 years, having been admitted to practice on 5 July 1985. He has been a principal in a law firm since 1988 and more recently the sole principal in a law firm at Parramatta. 2. On 28 February 2017, in proceedings 2017/00063343 the Council of the Law Society of New South Wales (the Society) made application to the Tribunal for disciplinary findings and orders against Mr Titmarsh (the First Application). The finding sought in those proceedings is that Mr Titmarsh is guilty of unsatisfactory professional conduct. Orders were sought that he be reprimanded, that he "pay a substantial fine" and undertake "a course in ethics" as well as paying the Society's legal costs. 3. By a further application made on 30 May 2017 in proceedings 2017/00162477, the Society sought a finding that Mr Titmarsh was guilty of professional misconduct (the Second Application). A recommendation was sought that his name be removed from the roll of local lawyers and also an order that he pay the Society's legal costs. 4. On 7 June 2017, Deputy President Boland AM, ADCJ ordered that the two proceedings be consolidated and that evidence in one be evidence in the other. As will become apparent, the facts upon which each application is founded arise from what is, in effect, the course of conduct by Mr Titmarsh in his dealing with closely related matters. 5. In accordance with her Honour's orders, the two applications were heard together and evidence relevant to both matters received at that hearing. Nonetheless, we were requested to address separately the finding sought in each matter. As the disciplinary orders appropriate to be made were dependent upon our findings, we were also requested to proceed on the basis that the hearing before us was a "stage 1 hearing". That request required that we make findings on the evidence, characterising the conduct that we found to have occurred, publish our reasons for so finding and then fix a further hearing to enable the parties to address orders appropriate to those findings. We accepted that course as being appropriate. Brief synopsis of the Society's claims 1. Ground 1 of the First Application alleges that Mr Titmarsh "grossly delayed" implementing the transfer of land from the estate of a deceased person who died in January 1996 to the deceased's widow. No step had been taken to effect that transfer as at February 2014 when complaint about that delay was made to the Legal Services Commissioner. 2. The second ground to the First Application is, in effect, a sequel to the first ground. The widow of the deceased died in November 2010. Although Mr Titmarsh was advised of that fact within days thereafter, probate was not obtained until October 2012 and the land that is the subject of the first ground was not transferred to the beneficiary until March 2013. The complaint, once again, is one of gross delay. 3. Ground 1 of the Second Application alleges that Mr Titmarsh falsely swore an affidavit in respect of the application for probate referred to in Ground 2 of the First Application. The second ground of the Second Application is that Mr Titmarsh "propounded" that falsely sworn affidavit by filing it in the Supreme Court in support of the probate application. 4. In order to consider these grounds, it is necessary to record in more detail the facts upon which they are founded. They are substantially, although not wholly, uncontroversial. However, before doing so it is appropriate that we identify the law applicable to the determination of these applications. Applicable law The First Application 1. The grounds that are the subject of the First Application arise from a complaint made to the Legal Services Commissioner on 14 February 2013. At the date of that complaint the Legal Profession Act 2004 (NSW) (the LPA) was in force. The LPA was repealed as from 1 July 2015 by s 167(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act). 2. While both proceedings were instituted under the provisions of the Uniform Law, the parties agree that the provisions of the LPA govern the determination of these proceedings. That follows, so it is submitted, from the application of the transitional provisions in cl 26 of Pt 3 of Sch 4 to the Uniform Law (Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 at [61]-[73]). We accept that submission. The Second Application 1. The grounds upon which the Second Application are based arise from a complaint made by the Society on 2 February 2017 pursuant to s 266(2) of the Uniform Law. That complaint was made after the commencement of the Uniform Law on 1 July 2015, albeit that it relates to conduct that occurred during the period in which the LPA was in force. 2. That circumstance is addressed in cl 27 of Pt 3 of Sch 4 to the Uniform Law in the following terms: 27 Complaints and investigations under this Law of prior conduct (1) This clause applies to conduct that – (a) happened or is alleged to have happened before the commencement day; and (b) could have been, but was not, the subject of a complaint…under old Chapter 4. (2) A complaint may be made under this Law on or after the commencement day in relation to the conduct even if the conduct could not be the subject of a complaint under this Law if it had happened on or after the commencement day. (3) An investigation may be commenced under this Law on or after the commencement day in relation to the conduct, so long as the same conduct had not been, or had not commenced to be investigated before the day under the old legislation. (4) The complaint may be made, or the investigation may be commenced, even if the conduct could not be the subject of a complaint under this Law if it had happened after the commencement day. (5) This law applies (with the necessary modifications) in relation to the conduct. (6) However, disciplinary action may not be taken against a person under this Law in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old legislation in relation to the conduct. (7) This clause does not authorise an investigation to be commenced after the commencement day in relation to the conduct if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the conduct had the old legislation not been repealed. 1. In light of those provisions, it is submitted that the Second Application is to be determined pursuant to the Uniform Law. We accept that submission. In a broad sense, the conduct that is the subject of both the First and the Second Applications has a common thread, the conduct founding the First Application being directed to delay while the conduct founding the Second Application is alleged to involve the false swearing of an affidavit. That distinction, coupled with the date of the complaint in respect of the Second Application, satisfies us that the provisions of cl 27 are appropriately invoked. We did not understand Mr Titmarsh to disagree with the submission of the Society in this respect. Conduct founding the Applications The First Application 1. On 16 January 1996, Carol Lambert instructed Mr Titmarsh to obtain probate of the will of William Artimus Lambert who had died on 7 January 1996. Carol Lambert, who was the sister of the late Mr Lambert, was named as the sole executrix of his will. Under that will, the whole of his estate was left to his wife Ruth Ann Lambert. 2. At the time of his death, the principal asset of the late Mr Lambert was the home in which he resided with his wife at 6 Candowie Crescent, Baulkham Hills (the Land). There were other assets of lesser value but the detail of those assets is unnecessary to be recorded as they were converted to cash and that money paid and distributed in accordance with his will. 3. Carol Lambert died on 7 March 1997. Probate of the will of William Lambert had not been obtained by that date. 4. Following the death of Carol, Mr Titmarsh received instructions from Ruth Lambert to proceed with the application for probate of the will of her late husband and the administration of his estate. As a result of those instructions, Mr Titmarsh prepared an application for letters of administration (with the will annexed) of the estate of William Lambert. That application was granted on 21 July 1998 to Ruth Lambert as the administratrix of the estate. 5. Following that grant, Mr Titmarsh requested Ruth Lambert to search for the certificate of title to the Land. He was subsequently advised that it could not be found. 6. Ruth Lambert died on 12 November 2010. At no time between July 1998 and November 2010 did Mr Titmarsh take any step to obtain a replacement certificate of title to the Land. Indeed, at no time between the death of William Lambert in 1996 and the death of Ruth Lambert in 2010 did Mr Titmarsh take any step to transfer title in the Land to Ruth Lambert. As will be seen, transfer of the Land did not occur until March 2013, that is, subsequent to the complaint made to the Legal Services Commissioner on 14 February 2013, albeit that Mr Titmarsh was unaware of the complaint at the time that he procured registration of the transfer. 7. Those are the facts that found Ground 1 of the First Application. They are accepted as being correct by Mr Titmarsh. 8. On 16 August 1999, Ruth Lambert signed a will that had been drafted by Mr Titmarsh on her instructions. Mr Titmarsh was appointed as the sole executor of the will and trustee of her estate. Mrs Lambert's daughter, Kathryn Lambert (Kathryn) was named as the sole beneficiary under the will. 9. As we have earlier recorded, Ruth Lambert died on 12 November 2010. On or shortly after 15 November of that year, Kathryn telephoned Mr Titmarsh, informing him that her mother had died. Mr Titmarsh recalls that in the conversation with Kathryn he expressed his condolences at the loss of her mother and asked that she see him "after the funeral and when she felt able to attend [his] office". 10. Nothing was done by Mr Titmarsh in connection with either the estate of William Lambert or in connection with the estate of Ruth Lambert until Kathryn consulted him on 28 August 2012. Following that consultation, an application for probate of the will of Ruth Lambert was prepared by Mr Titmarsh and lodged with the Supreme Court on 25 September 2012. Probate of the will was granted to Mr Titmarsh, as executor, on 26 October 2012. 11. Thereafter, Mr Titmarsh administered Ruth Lambert's estate, which included obtaining a replacement certificate of title to the Land and then procuring the registration of the transmission of title to Kathryn Lambert. That transmission application was registered on 6 March 2013. 12. None of the facts, as we have related them, are challenged by Mr Titmarsh. However, as we will record in due course, he sought to explain the time that elapsed between being advised by Kathryn of the death of her mother on or shortly after 15 November 2010 and the preparation of the probate application that was lodged in September 2012. The Second Application 1. The events to which we have referred up to and including the death of Ruth Lambert on 12 November 2010 and Kathryn Lambert's telephone call to Mr Titmarsh on or shortly after 15 November, advising of her mother's death, are all relevant to the Second Application. Also relevant to this Application is the circumstance that no step to obtain probate or to administer the estate of Ruth Lambert was taken by Mr Titmarsh until he was consulted by Kathryn Lambert in late August 2012. 2. As the executor of the will of Ruth Lambert, Mr Titmarsh was required to swear an affidavit in support of the application for probate of her will. One of the matters to be addressed in that affidavit was an explanation for any delay in lodging the probate application beyond six months from the date of death of the deceased: Pt 78 r 16(1) of the Supreme Court Rules 1970. On 25 September 2012, Mr Titmarsh swore an affidavit in support of the application. Paragraph 16 of that affidavit contained the following statement: "16. Probate of the Estate has not been applied for within 6 months of the date of death of the deceased as I was not aware that the deceased had passed away." The swearing of the affidavit that included the statement in par 16 is the conduct that founds the first ground of the Second Application. 1. The affidavit sworn by Mr Titmarsh on 25 September 2012 was then filed in support of the probate application. That is the second ground upon which the Society relies in the Second Application. Findings of fact 1. Given the lack of controversy as to the events that we have related in respect of each Application, we have no hesitation in accepting them for the purpose of determining each of the two Applications filed by the Society for disciplinary findings and orders. Characterising the conduct of Mr Titmarsh The First Application 1. The facts admitted by Mr Titmarsh leave little scope for mollifying the significance of his conduct. Not only did he admit the facts that are the subject of the First Application, by his Reply to that Application he has stated that he did not oppose the orders sought in the application "subject to the matters in mitigation". 2. There are two such matters to which he has adverted. They are addressed, in general, in his Reply and more fully explained in an affidavit sworn by him on 24 May 2017 in respect of this Application. He was cross-examined before us but that cross-examination did not challenge the substance of the matters to which he drew attention in mitigation. 3. The first of those matters is related to the contact made with him, on or shortly after 15 November 2010 by Kathryn, advising of her mother's death. In light of the conversation that Mr Titmarsh then had with her, particularly the request that Kathryn consult him concerning her mother's estate when she felt able to do so, meant that he was dependent upon her to contact him so as "to provide instructions" to administer the estate. As her first contact after that telephone call was in August 2012, he considered that there was no action that could have been taken by him in connection with the estate until that time. Indeed, he said in his Reply that he required her instructions, particularly as he had no knowledge of her late mother's assets and liabilities independently of receiving Kathryn's instructions. 4. In his affidavit sworn on 25 May 2017, Mr Titmarsh modified the response reflected in his Reply. He stated that, having spoken with his "peers and colleagues", he recognised that he "should have been more proactive irrespective of any action on the part of my client". 5. He was right to make that concession. Not only should he have taken the November 2010 telephone call from Kathryn as being, at the very least, tentative instructions to act for her in administering the estate of her late mother and followed through on those instructions. His appointment as sole executor of the will of her late mother ought to have made him even more astute to following up those initial "instructions". While he could not compel her to discuss the administration of the estate with him, he could have requested her attendance, indicating the information he required and advising of the process involved in making a probate application. 6. There is a further observation that in our assessment further diminishes the force of the matters relied upon by Mr Titmarsh in mitigation. Long prior to the death of Ruth Lambert, he was instructed to administer the estate of William Lambert. His task in so doing was incomplete as at 15 November 2010 in that title to the Land remained to be transferred in accordance with William Lambert's will. That circumstance provided an additional reason why Mr Titmarsh should have been proactive in seeking to contact Kathryn rather than waiting for her to contact him. 7. The second matter relied upon by Mr Titmarsh in mitigation of the First Application is that he had asked Ruth Lambert on two occasions to search for the certificate of title to the Land but was told it could not be found. Again, he now acknowledges, in hindsight, that he should have been proactive in that regard by taking the steps that he ultimately took in early 2013 to obtain a replacement certificate of title to enable the transfer of title to be registered. 8. There is little to excuse a delay of 14 years between January 1996 when Mr Titmarsh received instructions to obtain probate of the will of William Lambert, including instructions to transfer the Land in accordance with that will, and November 2010 when his wife who was beneficially entitled to the Land died without any transfer having been effected. Even following the death of Ruth Lambert, the delay between November 2010 and September 2012 in taking steps to administer her estate is considerable and is due, in large measure, to the failure of Mr Titmarsh to follow up the implied instructions he received from Kathryn Lambert in November 2010. 9. The Society seeks to have the conduct that is the subject of this Application characterised as unsatisfactory professional conduct. Conduct meeting that description is defined in s 496 of the LPA 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 have no hesitation in finding that the delays that we have found to have occurred may properly be characterised as unsatisfactory professional conduct within the meaning of s 496. Delays of the order that we have described fall well short of the standard of diligence that a client is entitled to expect of a competent legal practitioner engaged to provide the legal services that Mr Titmarsh was engaged to provide to members of the Lambert family. To his credit, so much is conceded by Mr Titmarsh. The Second Application 1. The facts that give rise to this Application are not in dispute. As we have recorded, Mr Titmarsh now accepts that the statement made in par 16 of is affidavit sworn on 25 September 2012 is not accurate. 2. Nonetheless, Mr Titmarsh states that at the time of swearing that affidavit he had no recollection of his telephone conversation with Kathryn on or shortly after 15 November 2010. No file was then opened by him in respect of the estate of Ruth Lambert and no note was made by him of that conversation. Nothing had occurred between November 2010 and the time when he was consulted by Kathryn in August 2012 that caused him to recollect the conversation. Even in the course of that consultation nothing was said by Kathryn that reminded him of their November 2010 conversation. 3. Mr Titmarsh did prepare a file note in the course of his consultation with Kathryn in August 2012. He opened a new file at that time. A copy of that file note was provided to the Society and is in evidence before us. Nothing contained in that file note indicated to the contrary of the evidence he gave. As a recollection of the November 2010 conversation was not prompted by anything said by Kathryn in August 2012 or by any other event between November 2010 and August 2012, Mr Titmarsh states that when swearing to the truth of par 16 of his affidavit of 25 September 2012, he honestly believed the statement in that paragraph to be correct. His cross-examination by counsel appearing for the Society did not suggest to the contrary. 4. Mr Titmarsh states that it was only after he received a letter from the Legal Services Commissioner dated 31 July 2013 that he recalled having had the conversation with Kathryn in November 2010, the terms of which have earlier been recorded by us. The prompt to his memory came from the terms of the complaint attached to that letter, being the complaint that had been made to the Legal Services Commissioner by Mark Lambert, the brother of Kathryn. In that complaint, Mark Lambert stated that Kathryn had spoken with Mr Titmarsh about her late mother's death on 15 November 2010 "two days after Ruth passed (sic)". 5. The complaint that was the subject of the letter dated 31 July 2013 from the Legal Services Commissioner was one of excessive delay; not one of false swearing. In his response by letter dated 23 September 2013, Mr Titmarsh admitted that shortly after the death of Ruth Lambert on 12 November 2010, he did have a conversation with Kathryn in terms that we have earlier recorded. His version of that conversation is not challenged. 6. Mr Titmarsh states that he does now, as he did in September 2012, conduct a busy legal practice, undertaking work in diverse areas of the law. This work included appearance as an advocate in the Local Court, District Court and Supreme Court in criminal matters as well as appearing before the Independent Commission Against Corruption. That work was undertaken both for private clients as well as legally aided clients. In addition, his work included conveyancing as well as preparation of wills and undertaking estate work. 7. Annexed to the affidavit sworn by Mr Titmarsh on 27 August 2017, prepared for the purpose of the present proceedings, was an extract from his work diary for 24, 25, 26, 27 and 28 September 2012. That extract shows him to have been involved in proceedings in a number of different suburban courts each day, including on 25 September. He states that he has no particular recollection of swearing the 25 September affidavit as there "was nothing special about it". In the busy practice he was conducting, so it is inferred, there was no reason to reflect upon its accuracy because he was not then "conscious of having been informed in about November 2010 that Ruth Ann Lambert had died." 8. The Society does not submit that Mr Titmarsh was deliberately untruthful when swearing to the truth of par 16 of his affidavit. However, it submits that proof of dishonesty is not required in order to ground a finding of professional misconduct: gross negligence or recklessness is sufficient (Law Society of New South Wales v McElvenny [2002] NSWADT 166; Re Hodgekiss (1962) 79 WN 163 per Hardie J at 171-172). 9. Professional misconduct is addressed in s 297 of the Uniform Law in the following terms: 297 Professional misconduct (1) For the purposes of this Law professional misconduct includes- (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with a practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 1. The definition of "unsatisfactory professional conduct" in s 296 of the Uniform Law is not relevantly different from the definition of the same expression in s 496 of the LPA that we have earlier quoted. 2. A finding of professional misconduct may also be made where that conduct engages the common law meaning of that term. The common law meaning is expressed as involving conduct in the pursuit of professional activities that would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency (Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750; Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [80]). 3. The Society submits that the conduct of Mr Titmarsh, demonstrating that he was recklessly indifferent to the accuracy of par 16 of his affidavit sworn 25 September 2012, is apparent from the following circumstances: 1. he had acted for the Lambert family for a number of years; 2. he was telephoned by Kathryn in November 2010 advising him that her mother, Ruth Lambert, had died; 3. he was the executor of the will of Ruth Lambert; 4. he acknowledged in evidence that his appointment by a client to be the executor of that client's will was an unusual circumstance in the course of his practice experience; and 5. he acknowledged that he was busy with many matters and in a rush at the time of swearing the affidavit, particularly because he was then preparing to leave for a short holiday. 1. The Society submits that the fact of the affidavit being sworn in haste is irrelevant as exculpatory of Mr Titmarsh's conduct. In principle, we accept that to be so (Legal Services Commissioner v Hackett [2006] QLPT 015 per de Jersey CJ at 8). 2. Reference is also made by the Society to the letter from Mr Titmarsh of 23 September 2013, responding to the complaint referred to him by the Legal Services Commissioner. While acknowledging the statement made in the complaint attached to that letter that the November 2010 conversation with Kathryn Lambert had occurred but stating that Kathryn had not responded to his request to consult with him until August 2012, the Society submits that this circumstance was not then proffered by Mr Titmarsh as the explanation for delay in par 16 of the affidavit sworn on 25 September 2012. 3. We do not accept that submission so far as it implies that the statement in par 16 of the affidavit is in some sense disingenuous or inconsistent with the present explanation given by Mr Titmarsh. On the contrary, we think it is wholly consistent with his evidence. At the time of swearing his affidavit of 25 September 2012 his evidence is unchallenged that he had no recollection of his November 2010 conversation with Kathryn. It was only upon receipt in August 2013 of the letter from the Legal Services Commissioner and accompanying complaint, recording the fact of the November 2010 conversation, that then prompted his recollection of the conversation. 4. Moreover, we are not persuaded that the conduct of Mr Titmarsh in swearing the affidavit of 25 September 2012 and filing it in support of the application for probate of the will of Ruth Lambert is conduct that engages either s 297 of the Uniform Law or the common law test of professional misconduct. An allegation of professional misconduct is a serious allegation. While accepting that in proceedings of the present kind, proof is required to the civil standard, the evidence led and the inferences to be drawn from it must satisfy the evidentiary principle articulated by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 5. As we have already stated, Mr Titmarsh believed the statement in par 16 of his September 2012 affidavit to be a correct statement of fact at that time. Nothing had occurred between November 2010 and August 2012, beyond the fact that he was a busy practitioner, to recall his 2010 conversation with Kathryn. Even when her instructions were received in August 2012, there is no evidence to suggest that a statement was made or that an event had occurred that had the effect or ought to have had the effect of reminding Mr Titmarsh of his November 2010 conversation. Thus, we accept that at the time of swearing the affidavit of 25 September 2012, par 16 of that affidavit was a statement of fact that, at that time, Mr Titmarsh had no reason to believe was untrue. While he may have been acting in haste when he swore the contents of the affidavit to be true, his evidence was that he had dictated the affidavit to be typed some days, if not weeks, before 25 September. None of the evidence that we have received and accepted gives rise to the inference that he did not give the content of the affidavit thought before he dictated it. Thus, the observation relating to "haste" as being indicative of recklessness, has no relevance to the circumstances that we are required to consider. 6. Reliance was placed by the Society upon the decision in Law Society of New South Wales v McElvenny. That was a case where the respondent solicitor had sworn an affidavit verifying an amended defence that was then filed in Local Court proceedings. Not only did the solicitor act as the legal representative of the defendants until immediately before the defence was prepared and verified by him, he was also a director of the company that was one of the defendants. 7. The defence prepared for verification by him contained a statement of fact that was untrue. It did not accord with the instructions provided to a second solicitor who was retained to conduct the proceedings. When presented with the defence drafted by the second solicitor for verification, the respondent solicitor swore the affidavit verifying the amended defence without reading the content of the defence itself. 8. The former Administrative Decisions Tribunal accepted that the solicitor did not deliberately swear a false affidavit "and had no intention to deceive" (at [61]). However, the Tribunal held at [62] that the solicitor had "acted recklessly when he verified the amended defence without even reading it". That was sufficient, so the Tribunal found at [71], to sustain a finding of unsatisfactory professional conduct. The facts and circumstances leading to that finding are far removed from those that attended the conduct of Mr Titmarsh. 9. Reference was also made by the Society to the decision of the Administrative Decisions Tribunal in Law Society of New South Wales v Thurairajah [2002] NSWADT 207. The respondent solicitor was named as the executor in a will prepared for a client. Upon the death of the client, the solicitor was instructed to obtain probate of that will. A firm of solicitors, acting for a family member of the deceased who had not instructed the respondent solicitor, wrote to the latter giving notice that the will would be contested and stating that the client of those other solicitors also held a will of the deceased that appeared to have been made later in time than that in respect of which the respondent solicitor had been instructed. 10. The respondent solicitor prepared an application for probate in solemn form. In an affidavit filed in support of that application, he stated that the will identified in that affidavit was the last will of the deceased. He failed to state in that affidavit, as he was required to do by the rules of Court, that notice had been received by him of the existence of another will said to have been made by the deceased. Clearly, he was aware of that other will but apparently formed his own judgment as to its validity, notwithstanding the claim made by the firm of solicitors retained by the other family member. 11. The Tribunal found the respondent's solicitor to be guilty of professional misconduct. 12. Clearly, the circumstances in Thurairajah are significantly different from those pertaining to Mr Titmarsh. Whereas the solicitor there involved took a deliberate course of action in the belief that it would be in the interests of his client to do so, in par 16 of his affidavit Mr Titmarsh did no more than relate the circumstance that he believed to be true at the time of swearing his affidavit. He did so without the potential "prompt" from any circumstance or event that reasonably caused him to reflect upon the accuracy of the statement made in par 16. 13. Mr Titmarsh seeks support for his position in observations made by the Full Court of the Supreme Court of New South Wales in the well-known case of Re Hodgekiss. There, the conduct in question was an alleged breach of the Legal Practitioners Act 1898-1954 (NSW) (now repealed) dealing with trust accounts, together with the Regulation made under that Act addressing the same topic. The leading judgment was delivered by Owen J (Maguire J agreeing). The question of professional misconduct was there being assessed by reference to the common law principle. At 169 his Honour said: "It is neither disgraceful nor dishonourable for a person, be he a solicitor or not, to give a certificate which is in fact untrue if the giver of it honestly believes it to be true, although perhaps a person who gives an untrue certificate believing it to be true but without any reasonable grounds for that belief, may be said in some circumstances to have acted disgracefully or dishonourably." 1. In our opinion, the conduct of Mr Titmarsh falls within the first part of his Honour's statement: that is, he honestly believed the statement made in par 16 of his affidavit to be true. At the time of swearing the statement to be true there was no basis upon which to suggest that his belief in the truth of the statement was unreasonably held nor that he was recklessly indifferent as to its truth. 2. For these reasons, the Society has not established to the requisite standard of proof that the conduct of Mr Titmarsh was conduct that engaged the provisions of s 297 of the Uniform Law. The statement in par 16 of the subject affidavit was made honestly by Mr Titmarsh, believing it to be true, albeit that subsequent events showed the statement to be untrue, a circumstance that Mr Titmarsh recognised and disclosed. His conduct, in our opinion, neither satisfies the common law test for professional misconduct nor does it satisfy the provisions of s 296 of the Uniform Law such as to constitute unsatisfactory professional conduct. As a consequence, the Second Application will be dismissed. 3. That leaves only the necessity to proceed to a second stage hearing in respect of the First Application. Upon delivery of these reasons, we will direct that the parties approach the Registrar for the purpose of obtaining a date upon which the parties may address us on the orders, if any, that should be made consequent upon our finding in the First Application that the conduct of Mr Titmarsh constituted unsatisfactory professional conduct under the LPA. Should the parties seek to rely upon any additional evidence for the purpose of addressing appropriate orders, directions may then be given for the filing and service of that evidence. Orders 1. The orders that we make are as follows: 1. The Application in proceedings 2017/00162477 is dismissed; 2. In proceedings 2017/00063343, direct that within 7 days from the date of these reasons the parties must jointly approach the Registrar for the purpose of fixing a date for hearing to determine the terms of any orders that should be made consequent upon our finding that the conduct of the respondent constituted unsatisfactory professional conduct within the meaning of the Legal Profession Act 2004. ********** 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: 29 October 2021