Council of the Law Society of NSW v Powell [2019] NSWCATOD 24

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Powell [2019] NSWCATOD 24 Hearing dates: 8 February 2018 Date of orders: 08 February 2019 Decision date: 15 February 2019 Jurisdiction: Occupational Division Before: The Honourable F Marks Principal Member M Riordan Senior Member E Hayes General Member Decision: Consequent upon the finding of professional misconduct which we have made, the following are the orders made by us in these proceedings; (1) The respondent is reprimanded (2) The respondent is to pay a fine of $1000 (3) The respondent is to pay the costs of the applicant as assessed in default of agreement Catchwords: Legal practitioner – failure to comply with undertaking – continuing to practice in breach of a practice condition – provisions of Instrument of Consent varied – finding of professional misconduct – protective orders made – costs order made Legislation Cited: Legal Profession Uniform Law (NSW) Cases Cited: Nil Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Helen Jean Powell (Respondent) Representation: Solicitors: A-M Foord (Applicant) H Powell (Self Represented)(Respondent) File Number(s): 2018/00351656 Publication restriction: Nil

REASONS FOR DECISIOn

Introduction 1. These proceedings are constituted by an Application for disciplinary findings and orders brought by the applicant Council of the Law Society of NSW pursuant to the provisions of the Legal Profession Uniform Law (NSW) ("the Uniform Law"). At the conclusion of the hearing which we conducted on 8 February 2019 we found that the respondent was guilty of professional misconduct and made certain protective and other orders. These Reasons for Decision constitute our reasons for having done so. 2. The Application alleges that the respondent is guilty of professional misconduct because she contravened a condition of her practising certificate and failed to comply with an undertaking given when applying to the applicant on 23 June 2014 for variation of her practising certificate. 3. The parties entered into an Instrument of Consent under s 144 of the Uniform Law by which agreement was reached that the respondent's conduct particularised in that document amounted to professional misconduct and sought that the Tribunal make orders by consent that the respondent be reprimanded and ordered to pay the costs of the applicant. 4. Section 144 is in the following terms; 144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, 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 respondent lawyer unless the lawyer and the NSW Commissioner 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 respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated 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 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. For completeness, we note also the provisions of s 301 of the Uniform Law which is in the following terms; 301 Procedure of designated tribunal (1) Proceedings initiated under this Chapter in the designated tribunal are to be dealt with in accordance with the procedures of the designated tribunal. (2) Subject to any procedural requirements, the designated tribunal may determine proceedings without conducting a formal hearing but is bound by the rules of procedural fairness. (3) It is intended that jurisdictional legislation may determine whether the designated tribunal is bound by the rules of evidence in conducting a hearing in relation to an allegation of professional misconduct, but the designated tribunal is otherwise not bound by those rules in relation to matters arising under this Chapter. 1. It is convenient to set out the relevant provisions of the Instrument of Consent; INSTRUMENT OF CONSENT This is an instrument of consent pursuant to section 144 of the Legal Profession Uniform Law Application Act 2014 PARTIES Applicant Council of the Law Society of New South Wales Respondent Helen Jean Powell CONSENT The NSW Civil and Administrative Tribunal, having found that the conduct of the Respondent particularised in the Agreed Statement of Facts below amounts to professional misconduct, makes by consent, orders that the Respondent: 1. be reprimanded; and 2. pay the costs of the Applicant as agreed or assessed. AGREED STATEMENT OF FACTS 1. The Respondent: (a) was admitted as a lawyer in New South Wales on 11 April 2008; (b) during the period 28 April 2008 to 30 June 2017 held a New South Wales Practising Certificate. During the period 27 June 2014 to 30 June 2017, the Respondent's Practising Certificate was subject to the following condition: "The holder must complete a Practice Management Course before being authorised to engage in legal practice as a principal of a law practice"; and (c) during the period 1 July 2014 to 30 June 2017 was the sole principal of the incorporated legal practice known as Helen Powell Legal Pty Ltd. 2. On 23 June 2014, the Respondent completed and signed a document entitled "Variation of a Practising Certificate to Practise as a Principal or Solicitor on the Record" (Variation Form). 3. The Variation Form contained the following undertaking, which the Respondent signed on 23 June 2014: "I undertake to complete the next applicable Practice Management Course when there is a position available". 4. Practice Management Courses were held, relevantly, on the following dates: Course provider Course type Course dates 23, 24 and 25 July 2014 5, 6 and 7 November 2014 28, 29 and 30 January 2015 29 and 30 April and 1 May 2015 29, 30 and 31 July 2015 FMRC Pty Ltd Sole practitioners 21, 22 and 23 October 2015 3, 4 and 5 February 2016 4, 5 and 6 May 2016 27, 28 and 29 July 2016 19, 20 and 21 October 2016 1, 2 and 3 February 2017 3, 4 and 5 May 2017 6, 7 and 8 August 2014 8, 9 and 10 October 2014 26, 27 and 28 November 2014 11, 12 and 13 February 2015 13, 14 and 125 May 2015 19, 20 and 21 August 2015 Small partnerships 18, 19 and 20 November 2015 17, 18 and 19 February 2016 18, 19 and 20 May 2016 24, 25 and 26 August 2016 16, 17 and 18 November 2016 15, 16 and 17 February 2017 17, 18 and 19 May 2017 16 and 17 July 2014 15 and 16 October 2014 25 and 26 March 2015 Large firms 12 and 13 August 2015 16 and 17 March 2016 10 and 11 August 2016 22 and 23 March 2017 20, 21 and 22 August 2014 29, 30 and 31 October 2014 3, 4 and 5 June 2015 Corporate and government solicitors 7, 8 and 9 October 2015 2, 3 and 4 May 2016 21, 22 and 23 September 2016 1, 2 and 3 March 2017 28, 29 and 30 August 2014 28 and 29 November 2014 and 6 December 2014 12, 13 and 14 February 2015 28, 29 and 30 May 2015 27, 28 and 29 August 2015 26, 27 and 28 November 2015 New South Wales College of Law Sole practitioners 11, 12 and 13 February 2016 3, 4 and 5 March 2016 2, 3 and 4 June 2016 18, 19 and 20 August 2016 17, 18 and 19 November 2016 16 January 2017 to 6 March 2017 20 March to 8 May 2017 22 May to 10 July 2017 13, 14 and 15 August 2014 12, 13 and 14 November 2014 4, 5 and 6 February 2015 6, 7 and 8 May 2015 13, 14 and 15 August 2015 Corporate and government solicitors 12, 13 and 14 November 2015 3, 4 and 5 February 2016 4, 5 and 6 May 2016 10, 11 and 12 August 2016 9, 10 and 11 November 2016 6 February 2017 to 27 March 2017 1 May to 19 June 2017 16, 17 and 18 October 2014 12, 13 and 14 March 2015 11, 12 and 13 June 2015 15, 16 and 17 October 2015 Partners 17, 18 and 19 March 2016 23, 24 and 25 June 2016 20, 21 and 22 October 2016 27 February to 17 April 2017 5 June to 24 July 2017 18, 25 and 26 July 2014 35+ partners 16, 17 and 18 July 2015 21, 22 and 23 July 2016 29, 30 and 31 October 2014 Community legal centres 28, 29 and 30 October 2015 26, 27 and 28 October 2016