Council of the Law Society of NSW v Byrne [2016] NSWCATOD 168
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Council of the Law Society of NSW v Byrne [2016] NSWCATOD 168
Hearing dates: 21 March 2016
Date of orders: 21 March 2016
Decision date: 21 March 2016
Jurisdiction: Occupational Division
Before: Hon G Mullane DCJ, Principal Member
D Fairlie, Senior Member
E Hayes, General Member
Decision: (1) The respondent, Hugh James Byrne, is guilty of professional misconduct;
(2) The name of the respondent is to be removed from the Roll of Solicitors;
(3) In matter 15201196, the respondent must pay the costs of the Legal Services Commissioner of and incidental to the proceedings as agreed or assessed;
(4) In each of matters numbered 1420166 and 1520188, the respondent must pay the costs of the Law Society of NSW of or incidental to the proceedings as agreed or assessed.
Catchwords: Solicitor, disciplinary proceedings, professional misconduct, not assist investigation, not comply with sec 660 Notice, commenced proceedings with no prospect of success, claiming costs for work not done, bogus documents, attempting to mislead Law Society, false statutory declaration, substantial failure to maintain competence and diligence. Lack of integrity, not fit and proper person to removed from roll.
Legislation Cited: Legal Profession Act 2004;
Legal Profession Uniform Law (NSW);
Legal Profession Uniform Law Application Act 2014 (NSW);
Civil & Administrative Tribunal Act 2013
Cases Cited: BRJ v Councill of the NSW Bar Association [2016] [NSWSC 146:
Legal Services Tribunal (in the matter of Hugh James Byrne and the Legal Profession Act 1987) (23 November 1995 – unreported);
Legal Services Commissioner Byrne [2000] NSW ADT 70 (31 May 2000);
NSW Bar Association v Breeze [2015] NSW CATOD 152 (18 December 2015);
Council of the Law Society of NSW v Gates [2016] NSW CATOD 35 (30 March 2016);
Allinson v General Council for Medical Education and Registration [1894] 1 QB 750;
Texts Cited: Nil
Category: Principal judgment
Parties: Council of the Law Society of NSW (Applicant)
Hugh James Byrne (Respondent)
Representation: Solicitors:
C Gronewegen (Applicant)
No Appearance by the Respondent
File Number(s): 2014/00382661 (1420166) & 2015/00383873 (1520188)
Publication restriction: Nil
REASONS FOR DECISION
Introduction
1. This was a hearing of 2 disciplinary applications by the Law Society of NSW against the respondent solicitor.
2. Application 1420166 was filed on 14 April 2014 and complained that the respondent was guilty of professional misconduct by failing to comply with the requirements of Section 660 of the Legal Profession Act 2004 ("the Act"), which then applied and failing to assist the Law Society with the investigation of a complaint. In that application the Law Society sought order for the respondent to be reprimanded and fined, his practising Certificate be suspended till he provided a response to a Notice under section 660 of the Act, and he pay the costs of the Law Society.
3. Application 1520188 was filed by the Law Society on 24 September 2015. It complained that the respondent was guilty of professional misconduct because he:
1. Commenced proceedings which had no prospects of success;
2. Prepared and produced a document entitled "Plaintiff's Assessment of Costs with Complying Narrative" in which claims were made in relation to work which was not done and where events that occurred in the proceedings were misrepresented;
3. Prepared document title "Consent Orders" which contained false representations;
4. Prepared and propounded a document entitled "Writ of Possession" which contained false representations;
5. Attempted to mislead the Law Society; and
6. Made a false statutory declaration.
1. In that application the Law Society sought that the respondent's name be removed from the Roll of Solicitors.
2. These applications were heard with the application of the Legal Services Commissioner number 1520116 filed 20 April 2015 complaining that the respondent was guilty of professional misconduct in representing a client, Ms Kennedy, regarding family law proceedings.
3. The hearing of the 3 applications together was by agreement of the respondent, the Law Society and the Commissioner. Separate reasons are provided in relation to the application of the Legal Services Commissioner.
4. The matter was listed for hearing on 20 March 2016. There was no appearance by or on behalf of the respondent. The legal representative for the Law Society informed the Tribunal at the hearing that the respondent had spoken with her by telephone the week before the hearing and informed her that he would not be attending the hearing.
The Legal Profession Uniform Law
1. Complaints the subject of each of these applications were made under Chapter 4 of the Act. With effect from 1 July 2015, the Act was repealed and replaced by the Legal Profession Uniform Law (NSW).
2. The application in file 1420166 commenced the proceedings on 14 April 2014 and the application in proceedings 1520188 was filed on 24 September 2015.
3. There are savings and transitional provisions contained in Schedule 4 of the Uniform Law and Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW) ("The Application Act").
4. Clause 126 of Schedule 4 of the Uniform Law applies to these proceedings.
5. It relevantly provides that where a complaint has been made under the old Chapter 4, but not disposed of before the commencement day, then after the commencement day the complaint is to continue to be dealt with in accordance with the provisions of the Act (ie the Legal Profession Act 2004) and for that purpose the complaint is to continue to be dealt with by the "entity responsible for dealing with it under those provisions".
6. Accordingly, the proceedings have been dealt with in accordance with the provisions of the Act, rather than the Uniform Law (see also Council of the NSW Bar Association v Breeze [2015] NSW CATOD 152 (18 December 2015) at [41] to [47] and Council of the Law Society of NSW v Gates [2016] NSW CATOD 35 (30 March 2016) at [5] to [10]
PROCEEDINGS 1420166
Relevant Law – proceedings 1420166
1. Sections 660, 672 and 676 of the Legal Profession Act 2004 apply and provide:
Section 660 Requirements in relation to complaint investigations
(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:
(a) to produce, at a specified time and place, any specified document (or a copy of the document),
(b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states),
(c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.
(2) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the investigator may, on production of evidence of his or her appointment, require any associate or former associate of a law practice of which the lawyer is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the lawyer) who has or has had control of documents relating to the affairs of the lawyer to give the investigator either or both of the following
(a) access to the documents relating to the affairs of the lawyer the investigator reasonably requires,
(b) information relating to the affairs of the lawyer the investigator reasonably requires (verified by statutory declaration if the requirement so states).
(3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Maximum penalty: 50 penalty units.
(4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance.
(5) A person who is subject to a requirement under subsection (1) or (2) is not entitled to charge the investigator for doing anything in compliance with the requirement.
Section 672 General provisions relating to requirements imposed under this Chapter
(1) This section applies to any requirement imposed on a person under this Chapter.
(2) The validity of the requirement is not affected, and the person is not excused from compliance with the requirement, on the ground that a law practice or Australian legal practitioner has a lien over a particular document or class of documents.
(3) The investigator imposing the requirement may:
(a) inspect any document provided pursuant to the requirement, and
(b) make copies of the document or any part of the document, and
(c) retain the document for a period the investigator thinks necessary for the purposes of the investigation in relation to which it was produced.
(4) The person is not subject to any liability, claim or demand merely because of compliance with the requirement.
(5) The appropriate Council:
(a) may on its own initiative, or
(b) must if directed to do so by the Commissioner,
suspend a local legal practitioner's practising certificate while a failure by the practitioner to comply with the requirement continues.
(6) If a document:
(a) is not in writing, or
(b) is not written in the English language, or
(c) is not decipherable on sight,
a requirement under this Chapter to provide access to the document is not complied with unless access is provided to a statement, written in the English language and decipherable on sight, that contains all the information in the document.
(7) A Council may retain any copy of a document or part of a document made by an investigator under this Chapter and provided to the Council under this Chapter.
Section 676 Obligation of Australian lawyers
(1) The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Chapter, whether or not the lawyer is the subject of the investigation, examination or audit concerned.
(2) An Australian lawyer must not mislead an investigator or a Council in the exercise of:
(a) any power or function under this Chapter, or
(b) any power or function under a provision of a corresponding law that corresponds to this Chapter.
(3) An Australian lawyer who is subject to:
(a) a requirement under section 660 (Requirements in relation to complaint investigations), or
(b) a requirement under provisions of a corresponding law that correspond to that section,
must not, without reasonable excuse, fail to comply with the requirement
(4) An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.
The Evidence – proceeding 1420166
1. The evidence comprised:
1. The application of 14 April 2014;
2. The reply of 6 August 2014;
3. The affidavit of Anne-Marie Foord sworn 2 April 2014 and Exhibit AMF1 (total 137 pages);
4. The affidavit of the respondent of 8 August 2014 (6 pages).
1. The respondent in his reply admitted he failed to comply with the Section 660 Notice and failed to assist the Law Society in its investigation. He also admitted the particulars of those 2 complaints.
Findings 1420166
1. The following particulars of the complaint are established by the evidence:
1. Hugh James Byrne ["the solicitor"]
1. was born on 15 June 1953 and is currently 60 years of age;
2. was admitted to the roll of the Supreme Court of NSW on 11 July 1980; and
3. since 6 September 2000 to the present has been the sole principal of Hugh J Byrne Family Lawyer ['the Law Practice].
1. The solicitor is the subject of a complaint dated 13 January 2013 lodged with the Office of the Legal Services Commissioner ['OLSC'] by Mr Jeffrey Chard, solicitor, on behalf of his client, Ms Meng Belmonte.
2. On or about 21 January 2013 the OLSC referred the complaint to the Law Society for investigation. The matter was received by the Law Society on 22 January 2013. Shortly thereafter it was allocated to Mr Knox Sinclair, Investigator for the Law Society ['the Investigator], for investigation of the complaint.
3. After confirming with Mr Chard the substance of the conduct issues, the Investigator on 26 April 2013 wrote to the Solicitor seeking his response to the complaint by 20 May 2013. Enclosed with that letter was an information brochure entitled 'Senior Solicitors' Scheme'
4. The Investigator received no response to his 26 April 2013 letter from the Solicitor.
5. On 27 May 2013 the Investigator again wrote to the Solicitor, enclosing the letter of 26 April 2013 and stating:
"So I may proceed with my investigation would you kindly provide your response to the complaint by reply."
1. The Investigator received no response to his 27 May 2013 letter from the Solicitor.
2. On 14 June 2013 the Investigator again wrote to the Solicitor stating that he had not received a response to the earlier letters and:
"Your failure to respond ... delays unnecessarily the complaint investigation I am obliged to undertake under the Legal Profession Act 2004 (the Act).
If you do not respond by 24 June 2013 I will give you a notice pursuant to section 660 of the Act.
I draw your attention to the provisions of section 660 and in particular subsection 3 of the Act"
1. Under cover of letter dated 21 October 2013 the Investigator arranged for a Notice pursuant to section 660 of the Act ['the Notice'] to be personally served on the Solicitor.
2. The Notice was personally served on the Solicitor on 22 October 2013
3. Under the terms of the Notice the Solicitor was obliged to:
1. provide to the Investigator, verified by statutory declaration, the information set out in Schedule 1 on or before the twenty first day after service of the Notice; and
2. to produce to the Investigator at a given address on or before the twenty first day after service of the Notice, the documents specified in Schedule 2.
1. The twenty first day after service of the Notice was 12 November 2013.
2. On 5 November 2013 the Investigator wrote to the Solicitor correcting an error in the Notice:
"The Notice incorrectly states the complaint was first sent to you by letter dated 17 February 2011 (sic). I confirm the complaint was first sent to you by my letter dated 26 April 2013; copy enclosed (excluding annexures).
I await your response to the Notice to proceed with my investigation."
1. The Investigator received no response to the Notice from the Solicitor.
2. On 19 November 2013 the Investigator sent a fax to the Solicitor in the following terms:
"I refer to the Notice issued by me on 21 October 2013 under Section 660 of the Legal
Profession Act, 2004 that was personally served on you on 22 October 2013.
I confirm that your response to the Notice was to be provided by 13 November 2013.
I also confirm that I have not received your response to the Notice and therefore prima facie you are in breach of the Notice.
Subject to any submissions received by 4:00 pm tomorrow, 20 November 2013, I propose that, at its next meeting this Thursday, 21 November 2013, the Society's Professional Conduct Committee consider the making of Society complaints against you, to the effect, you have failed to comply with the Notice and to co-operate with the Society's investigation.
I urge your prompt provision of the information and documents requested in the Notice."
1. By letter dated 25 November 2013 the Investigator informed the Solicitor that the Professional Conduct Committee [PCC] acting under delegated authority from the Law Society Council resolved to make the complaint [now the subject of these proceedings] against him. Submissions in relation to this new complaint were sought by 10 December 2013. Again, a brochure entitled 'Senior Solicitors' Scheme' was enclosed with the letter. In addition the Investigator noted that:
"...your response to the Section 660 Notice remains outstanding."
1. On 13 December 2013 the Investigator wrote to the Solicitor noting amongst other things that no response had been received from the Solicitor and that any submissions he wished to make in relation to the complaint accompanied by any report from his treating psychiatrist should reach the Investigator by 20 January 2014.
2. By fax received on 31 January 2014, Mr Greg Walsh, solicitor for the Solicitor, requested a further 21 days to respond to the Notice.
3. In response to Mr Walsh's request, the Investigator sent a fax on 3 February 2014 stating that he:
1. was unable to extend the time for compliance with the Notice when the time for compliance ended before 13 November 2013;
2. would postpone the matter for consideration by the PCC from 6 February 2014 to 20 February 2014, thereby extending the time to 4 pm on 19 February 2014 for the Solicitor to make submissions.
1. No submissions were received by the Investigator from or on behalf of the Solicitor before the PCC meeting of 20 February 2014.
2. On 24 February 2014 Mr Walsh sent a fax to the Investigator stating that the Solicitor was not returning Mr Walsh's calls and seeking information about alternate representation for the Solicitor from the Senior Solicitors' Scheme
3. By letter dated 25 February 2014 the Investigator wrote to Mr Walsh providing information about the Senior Solicitors' Scheme and informing him that the PCC had referred his client to the Tribunal in relation to the complaint. In addition, the Investigator wrote that:
"Pending receipt of the response for the Section 660 Notice I am unable to progress my investigation into the complaint by Mr Chard on behalf of Ms. Belmonte (Society ref: 39919)."
1. On 3 March 2014 the Solicitor sent to the Investigator a fax in purported compliance with the Notice.
2. The responses by the Solicitor on 3 March 2014 pursuant to Schedule 1 of the Notice were not verified by statutory declaration.
3. By letter dated 11 March 2014 to Mr Walsh, the Investigator.
1. pointed out that the responses to Schedule 1 of the Notice needed to be verified by statutory declaration; and
2. sought clarification of some matters.
1. On 24 March 2014 the Investigator received from Mr Walsh a fax containing the Solicitor's responses to the Notice verified by statutory declaration and clarified in accordance with the request of the Investigator dated 11 March 2014.
2. Formal compliance with the Notice occurred on 24 March 2014.
3. The Solicitor effectively complied with the Notice on 3 March 2014 because:
1. but for the clarification sought by the Investigator, the Solicitor's response to Schedule 1 of the Notice remained the same on 3 March 2014 and 24 March 2014; and
2. the failure by the Solicitor to verify his response to Schedule 1 of the Notice was due to an oversight by Mr Walsh, conveyed by Mr Walsh to the Investigator on 14 March 2014.
Conclusions - 1420166
1. The offending conduct of not assisting the Law Society investigation occurred from when he failed to answer a letter sent to him on 26 April 2013 until 3 March 2014. The failure to comply with the section 660 Notice occurred from 12 November 2013 (when the time for responding to the notice expired) until 3 March 2014.
2. In his Reply and his affidavit the respondent attributed his subject failures to a depressive illness. He said he has been suffering from depression "for much of my professional life". He referred to a report of Dr Olav Neilssen, a psychiatrist, of 15 July 2014. From the respondent's affidavit it appears he did not consult Dr Neilssen about this episode of depression till 4 November 2013. Then his failure to assist the Law Society continued for another 4 months and his failure to comply with the section 660 notice occurred for 4 months after he consulted Dr Neilssen.
3. Dr Neilssen reported that the respondent told him his depression had become more serious in the 2 years before the consultation of 4 November 2013. He reported,
At the initial interview Mr Byrne reported longstanding symptoms of depression that had become more severe in the 2 years before the referral to the extent that it had a significant effect on his ability to conduct his practice. In particular, the impairment in his ability to concentrate and the anxiety associated with his depressed state had resulted in a pattern of avoiding difficult files and being unable to find a solution to the problems he faced in his practice.
1. Dr Neilssen prescribed an antidepressant to be taken from 4 November 2013 and when the respondent attended his next appointment on 25 November 2013 he reported an improvement in mood and on 3 February 2014 he reported good mood over the holiday break, improvement in his sleep, less mental fatigue, increased physical activity, and feeling more optimistic about the future, but being anxious and depressed about returning to work after the break.
2. From Dr Neilssen's report of 15 July 2014, it emerges that as the respondent continued with medication and adoption of "cognitive and behavioural techniques" his depressive symptoms retreated and his depression was "overcome".
3. The Section 660 Notice was served under section 660(1)(a) of the Act and non compliance is an offence under Subsection 660(3). The request for the respondent to assist with the investigation of a complaint is an exercise of the power under subsection 660(1)(c) of the Act and non compliance is also an offence under subsection 660(3). Under subsection 676(4) of the Act non compliance with each of the Notice and the request is professional misconduct unless there is a reasonable excuse.
4. The respondent seeks to rely on his depression as a reasonable excuse for his conduct. But his conduct under both grounds continued, or occurred, after he commenced, and while he continued, medication for his depression.
5. Also he has suffered from depression for many years and this episode of depression might not have occurred, or could have been curtailed before the Law Society requested his assistance, but for his failure to properly manage his mental health by ongoing assistance and advice of Dr Nielssen, antidepressant medication and other methods.
6. The evidence falls short of establishing that his depression was a reasonable excuse for either of the offending conduct. Both the complaints in proceedings 1420166 have been established. Pursuant to subsection 676(4) of the Act both of the grounds constitute professional misconduct.
PROCEEDINGS 1520188
The Evidence in Application 1520188
1. The evidence comprised:
1. Application filed 24 September 2015; and
2. Affidavit of Anne-Marie Foord sworn 21 September 2015 and Exhibit AMF2 (total 333 pages).
Other Relevant Law in 1520188
FAMILY LAW ACT 1975
SECT 4
Interpretation
"matrimonial cause " means:
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
(cb) proceedings between:
(i) a party to a marriage; and
(ii) the bankruptcy trustee of a bankrupt party to the marriage;
(iii) with respect to any vested bankruptcy property in relation to the bankrupt party, being
(iv) proceedings:
(v) arising out of the marital relationship
SECT 8
Supersession of existing laws
(1) After the commencement of this Act:
(a) proceedings by way of a matrimonial cause shall not be instituted except under this Act ...
Findings in Application 1520188
1. The Tribunal makes the following findings in relation to the 6 Grounds of the application. All 6 grounds have been proved.
Ground 1 – the solicitor commenced proceedings which had no prospects of success
Background
1. Between 2002 and 2008, the Husband and the Wife were parties to contested Family Law Property Proceedings SYF5636102 [Family Court Proceedings] in the Family Court of Australia.
2. In the Family Court Proceedings, the Wife was represented by Bull Son & Schmidt, solicitors and the Husband was represented by Hugh James Byrne [the Solicitor].
3. The Family Court Proceedings resulted in orders being made:
1. by consent on 20 April 2005 [the Property Orders];
2. on 30 August 2006 [the Capital Gains Tax Contribution Declaration].
1. Orders 2 and 3 of the Property Orders provided for the Husband's interest in the property situated at 9-11 Grasslands Road Galston [the Galston Property] to be transferred to the Wife simultaneously with her making a payment to him.
2. Order 7 of the Property Orders required the Husband to pay 50% of the capital gains tax calculated by chartered accountants as that which would have been payable if the Galston property were sold for $1.75 million on the date of the Orders.
3. To effect compliance with Order 7 of the Property Orders, the Capital Gains Tax Declaration specified that the Husband pay the Wife the sum of $78,737.00 [the Assessed Sum] on 12 December 2005.
4. Subsequently:
1. the Husband failed to pay to the Wife the Assessed Sum;
2. the Wife initiated bankruptcy proceedings against the Husband and the Husband was made bankrupt on 22 October 2007;
3. the Wife recovered the Assessed Sum plus interest plus costs totalling $122,937.00 from the Husband's bankrupt estate;
4. the Husband's bankruptcy was later annulled.
1. On 9 December 2010 the Solicitor as legal representative of the Husband, certified in a District Court of NSW Statement of Claim in which the Husband was the Plaintiff, that there were reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law, that the claim for damages outlined had reasonable prospects of success.
2. The relief sought in the Statement of Claim was an order against the Wife as Defendant, for reimbursement to the Plaintiff of $122,937.00 referred to in paragraph 7c above plus damages arising from its payment.
3. The alleged entitlement to the relief described above is pleaded in Paragraph 11 of the Statement of Claim, as follows:
"The Plaintiff contends that the payment to the Defendant of $78,737 together with interest and costs thereon is an unjust enrichment of the Defendant in circumstances where the Defendant will not become liable for land tax [sic] in relation to the Galston property until such time as the Defendant sells that property, if at all."
1. The Statement of Claim was filed in the District Court of NSW on 17 December 2010 and commenced proceedings numbered 2010/418735 [the District Court Proceedings].
2. On the dates listed before the Judicial Registrar stated, representatives appeared and orders were made in the District Court Proceedings as follows:
JUDICIAL
DATE OFFICER NOTES & ORDERS
&
APPEARANCES
Judicial Registrar Smith 1. Time to serve SOC extends to 25 March 2011
9 Mar 11 Pl: Byrne 2. PTC s/o 14/2011 at 12 noon
Def: NA 3. Notice of orders 1 and 2 to be served with SOC
Judicial Registrar Smith This matter is listed for Directions (Case Managed List) on 17 May 2011 2:00 PM before the District Court – Civil at Sydney
14 Apr 11 Pl: Byrne Note settled. S/0 to CMLDH 15/5/2011 at 2:00pm. If TOS filed, matter will not appear in the list
Def: (mentions)
Judicial Registrar Smith Def in China – back next week
17 May 11 Pl: Byrne This matter listed for Directions (Case Managed List) on 14 June 2011 2:00 PM before District Court – Civil at Sydney
Def: (mentions) S/O CMLDH 14/6/2011 at 2.00pm
Judicial Registrar Smith This matter listed for Directions (Case Managed List) on 19 July 2011 2:00 PM before District Court – Civil at Sydney
14 Jun 11 Pl: Byrne Note settled. S/O CMLDH 19/7/2011 at 2.00pm
Def: (mentions) If TOS filed, matter will not appear in the list
Judicial Registrar Smith I note there is no appearance by either party
17 Jul 11 Pl: Byrne I dismiss the proceedings under rule 12.7 Registry to notify plaintiff
Def: NA
1. The Statement of Claim was not served on the Defendant to the District Court Proceedings.
2. The District Court Proceedings were commenced without any prospect of success as their object was to recover monies paid to the Defendant by the Husband's bankrupt estate pursuant to an order of the Family Court of Australia. Any such claim was only recoverable by a successful appeal to a Full Court of the Family Court of Australia
Grounds 2, 3 and 4: The Solicitor prepared and propounded documents containing false representations
1. The Solicitor prepared a document entitled 'Plaintiffs Assessment of Costs with Complying Narrative'.
2. In the document described in paragraph 15 above, the Solicitor made claims as follows for work that he had not done:
1. 2.0 hours for various telephone attendances with the Defendant's solicitor between 14 April 2011 and 17 May 2011;
2. 3.0 hours for attending an informal settlement conference on 15 March 2011 in the precincts of District Court of NSW with the Plaintiff when there was no attendance by Defendant or her solicitor, including waiting and travelling time;
3. 0.5 hours spent on 17 May 2011 arranging for a city agent to appear and mention the matter on behalf of both parties.
4. in early June 2011 time spent in relation to the negotiations for settlement and the preparation of Consent Orders was as follows:
1. 0.5 hours for various communications with the Defendant's solicitor culminating in agreement being reached.
2. 1.0 hours preparation of Consent Orders for signing by the Plaintiff and the Defendant.
1. In the document described in paragraph 15 above, the Solicitor falsely represented that the following events occurred in the proceedings:
1. On 9 March 2011 the Defendant was represented by a solicitor from Bull Son & Schmidt at a pre-trial conference in the District Court Proceedings. The Defendant's solicitor informed the Judicial Registrar that the Defendant had only recently contacted his firm, wished to obtain legal advice in relation to her position and, as such, requested an extension of time for her to obtain such advice and/or file any Defence to the Statement of Claim.
2. Following the 9 March 2011 appearance before a Judicial Registrar, the Defendant's solicitor enquired whether a settlement conference conducted on an informal basis might be of benefit. An informal settlement conference was arranged for 15 March 2011 at 10.00 am in the precincts of the District Court.
3. On 15 March 2011 the Solicitor made a number of telephone calls to the Defendant's solicitor and was informed that the Defendant had failed to keep a number of arranged conferences and, this being so, he did not regard himself as being instructed by her.
4. On 14 April 2011 a city agent appeared for the Defendant in the District Court Proceedings. The city agent informed the Judicial Registrar that the Defendant had now instructed Ma & Associates, solicitors of Sydney.
5. Between 14 April 2011 and 17 May 2011 a solicitor for the Defendant was involved in negotiations with the Solicitor and advised him that the Defendant was still overseas but was anxious to resolve the proceedings.
6. In early June 2011 the Solicitor was contacted by the Defendant's solicitor and was advised that the Defendant was prepared to resolve the proceedings on the basis that the sum of $220,000 inclusive of costs be paid to the Husband; that those monies be held in the Solicitor's trust account; and that a Deed of Release be prepared.
7. Arrangements were made for the Defendant to attend the District Court on 14 June 2011 with her solicitor for the purposes of signing the Consent Orders, signed by the Husband on 9 June 2011.
8. On 14 June 2011 the Solicitor attended before the Judicial Registrar and handed up a copy of the Consent Orders signed by the Plaintiff on 9 June 2011 for inclusion in the Court file. The matter was stood out of the list with liberty granted to the Solicitor to restore the proceedings to the list on the giving of 14 days' notice to the Defendant or any solicitor acting for her.
1. The Solicitor prepared a document entitled 'Consent Orders' which falsely represented that a settlement had been reached with the Defendant.
2. The Solicitor prepared a document entitled 'Writ of Possession' which falsely represented that the Plaintiff was entitled to
1. obtain orders for possession of the Galston Property;
2. the sum of $232,000.00 from the Wife [being $220,000.00 exclusive of interest and assessed costs of $12,000]
1. On 15 December 2012, the Defendant was handed a bundle of documents by her children, passing them on for their father, the Plaintiff.
2. Within the bundle was a copy of the documents described in paragraphs 15, 18 and 19 above.
3. The Solicitor propounded the above documents by providing them to the Plaintiff for delivery upon the Defendant.
4. The Defendant did not participate in the District Court Proceedings, including any settlement conference or settlement; or by way of instructing solicitors Bull Son & Schmidt or Ma & Associates.
5. After receiving the documents, the Defendant retained the law practice Paul Bard Lawyers [PBL] to represent her in the District Court Proceedings, PBL filing a Notice of Appearance on 18 December 2012
Ground 5: The solicitor attempted to mislead the Law Society
1. By letter dated 3 March 2014 the Solicitor provided responses to a Notice dated 21 October 2013 pursuant to s 660 of the Legal Profession Act 2004 [the Notice].
2. Those responses were verified by Statutory Declaration dated 24 March 2014.
3. On 9 April 2015 the Solicitor made a Statutory Declaration in which he provided further answers to the Notice, the further answers being inconsistent with those provided by Statutory Declaration dated 24 March 2014.
4. The following table indicates requests by the Law Society on 21 October 2013 and 3 March 2015 for information from the Solicitor and his responses in his letter dated 3 March 2014 and in his Statutory Declarations dated 24 March 2014 and 9 April 2015
Section 660 Notice 21/10/2013 Solicitor's letter 03/03/2014 and stat dec 24/03/2014 Further request by Law Society 03/03/2015 Solicitor's stat dec 09/04/2015
8,3 Does para 7 of the costs document falsely claim that the Defendant was represented by a solicitor from Bull, Son & Schmidt, solicitors at the pre-trial conference on 9 Mar 11? No. no 1.1 Yes
8.4 If the answer to 8.3 is no, specify the basis for this response if the Defendant was never served with the claim and the law practice Bull Son & Schmidt was never instructed by her in relation to the claim. The Defendant was aware of the proceedings, had a copy of the Statement of Claim and a solicitor from Bull Son & Schmidt attended on 9 March, 2011 purporting to represent her 1.2 N/A
10.4 Identify the name and firm of the 'city agent' who appeared for the Defendant at the directions hearing on 14 April 2011 stating they were instructed by Ma & Associates, solicitors of Sydney. A female solicitor or barrister appeared purporting to be an agent for Ma & Associates 1.3 None
10.5 Do the statements falsely claim that a 'city agent' appeared for the Defendant instructed by Ma & Associates at the pre-trial conference on 14 April 2011? No 1.4 Yes
17.1 Did you appear at the pre-trial conference of the District Court claim in the District Court on 14 Jun 11? Yes 1.5 Yes
17.2 If you did not appear at the pre- trial conference on 14 Jun 11:
1. Identify who appeared for the Plaintiff; and Not relevant 1.6 N/A
2. Specify when the outcome of the pre-trial conference came to your attention including the adjournment of the proceedings to 19 Jul 11 as set out in the Justice Link record.
19.1 Do paragraphs 16 and 17 of the costs document falsely claim that on 14 Jun 11 you attended before the Judicial Registrar and stood the matter out of the list? Byrne's recollection is that on 14 Jun 11 he advised the Judicial Registrar of the settlement reached between the parties, advised that the Plaintiff had signed consent orders but that the Defendant had not and was granted leave to file the signed Consent Orders in due course. Byrne was unaware of any further listing of the proceedings to 19 Jul 11, but noted that liberty had been granted to restore the proceedings to the list on 14 days' notice to the Registry 1.7 Yes
1. The Solicitor's responses contained in the letter dated 3 March 2014 and in his Statutory Declaration dated 24 March 2014 as described in the table above are false.
2. Annexed to the 3 March 2014 letter was a copy of a file purporting to be a copy of a contemporaneous record of the Solicitor's telephone conversation with a person at the offices of Ma & Associates. [Ref AMF1 at p 119]
3. No such telephone call took place and the document as a file note is false.
4. By his false responses and by annexing a copy of a false file note the Solicitor attempted to mislead the Law Society.
Ground 6: The solicitor made a false Statutory Declaration
1. The Solicitor's responses, verified by Statutory Declaration dated 24 March 2014, to the above requisitions in the s 660 Notice dated 21 October 2013 were false.
2. The Solicitor swore a false Statutory Declaration dated 24 March 2014.
3. By letter dated 18 May 2015, the Law Society sought from the Solicitor, confirmation that the other responses in his Statutory Declaration dated 24 March 2014 were correct. [Ref AMF2 at p 301].
4. The Law Society received no response to its 18 May 2015 letter.
Conclusions in proceedings 1520188
1. The Tribunal finds that all 6 grounds have been proved.
Unsatisfactory Professional Conduct / Professional Misconduct .
1. Section 496 of the Act applied at all relevant times and provided:
Unsatisfactory professional conduct
For the purposes of this Act:
"unsatisfactory professional conduct" includes conduct of an Australian Legal Practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner.
1. Similarly section 497 of the Act applied and provided::
Professional Misconduct
(1) For the purposes of this Act "professional misconduct" includes:
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice;
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters;
1. Section 498 of the Act similarly applied and provided::
498 Conduct capable of being unsatisfactory professional conduct or professional misconduct
(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules;
(b) charging of excessive legal costs in connection with the practice of law;
(c) conduct in respect of which there is a conviction for:
(i) a serious offence, or
(ii) a tax offence; or
(iii) an offence involving dishonesty;
(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth;
(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice);
(g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law);
(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law;
(2) conduct of a person consisting of a contravention referred to in subsection (1)(a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.
1. Ground 1 involves gross incompetence, especially because the respondent had been practising since 1980 and, according to his affidavit filed in matter 142016, he has in that time "practised basically in the family law field of legal practice". The other 5 grounds all involve dishonesty. The false representations in the document entitled "Plaintiff's Assessment of Costs with Complying Narrative" were made with a fraudulent intent. Grounds 2, 3, and 4 involved extensive deceit of his client and Grounds 5 and 6 were attempts to deceive the law Society. The conduct of making false statements in a Statutory Declaration is prohibited by law and an offence.
2. Together the 6 grounds constitute professional misconduct. They demonstrate that the respondent is so lacking in competence, integrity and diligence that he is not a fit and proper person to engage in legal practice. They also satisfy the common law test of professional misconduct in Allinson v General Council for Medical Education and Registration [1894] 1 QB 750 as "reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency". It is conduct that such brethren would regard as both dishonourable and disgraceful.
Mental health – Depression
1. The only excuse offered by the respondent in the documents he has filed or provided to the applicant has been longstanding depression. But the test as to whether a lawyer's conduct constitutes professional misconduct or constitutes unsatisfactory professional conduct is an objective test measured by the conduct, and the issue of any mental illness arises in relation to the decision of what dispositive orders should be made (BRJ v Councill of the NSW Bar Association [2016] [NSWSC 146).
Previous disciplinary proceedings
1. The respondent has been the subject of prior disciplinary proceedings. In a decision of 23 November 1995 of the Legal Services Tribunal (in the matter of Hugh James Byrne and the Legal Profession Act 1987) (23 November 1995 – unreported).
2. The respondent was found to have committed professional misconduct by extensively lying to several of his clients in family law proceedings as to the progress of the matters and what was happening. He also lied in a letter to the husband of a client (the respondent to his client's application) as to what had happened on the proceedings.
3. The Tribunal described his conduct as "an appalling dereliction of duty by the solicitor to the clients concerned, but also a failure to understand his duty to the public and his duty to the profession".
4. He also was found to have his client required to "swear, on oath, an affidavit in support of a proposed application to the Family Court that was incomplete as to most of its material aspects, namely the orders to be sought (both interim and final) changes to the circumstances and relevant facts relating to the proposed removal of the child from Australia".
5. On one occasion he had the client attend the Family Court for a hearing. The matter was not listed. He pretended to make enquiries of Court staff and then reported to the client that the file had been sent to Melbourne by mistake. He knew that was not true. Later he reported to her that on a subsequent date her application had been heard. But he hadn't commenced proceedings. He didn't do that until more than 3 months later.
6. The events documented in those proceedings occurred in the period from 1990 to 1992.
7. The Tribunal made the following orders:
1. The solicitor is severely reprimanded;
2. The solicitor is prohibited from practicing as a sole practitioner for a period of 3 years from the date of his order;
3. The solicitor [must] complete, satisfactorily, a course of office management as agreed between the law society with liberty to either party to apply to the Tribunal in relation to the implementation of this order;
4. That the cost of the Law Society be paid for by the solicitor, such costs to be assessed and if assessed by a Supreme Court Cost Assessor pursuant to the provisions of Part XI, Legal Profession Act;
5. If the parties cannot agree on the quantum of these costs, either party have [sic] liberty to apply to the Tribunal to determine the amount of those costs.
1. On 31 May 2000, the Administrative Decisions Tribunal dealt with further disciplinary proceedings against the respondent in Legal Services Commissioner Byrne [2000] NSW ADT 70 (31 May 2000).
2. The complaints found proved in that matter found extensive failures to respond to letters and notices from the Legal Services Commissioner requiring information. He did not comply with the notices until the proceedings had been commenced. In respect to requests to initiate evidence first sent to him on 10 November 1997 and 29 August 1997, he did not respond until 19 July 1999.
3. His conduct was found to be professional misconduct and the orders made by the Tribunal were:
1. The respondent be publically reprimanded;
2. The respondent is to pay a fine of $3,000 within a period of 12 months from the date of this order;
3. The respondent is suspended from practice at the expiration of the said period of 12 months if the fine has not been paid and any suspension continued until the fine is paid;
4. The respondent's practice is, for a period of 2 years commencing from the date of this order, to be subject to inspection at 3 monthly intervals at the expense of the respondent by a suitably qualified solicitor appointed by the applicant or the Law Society after consultation with the respondent, such inspections to continue, notwithstanding any change in the constitution of the respondent's firm;
5. The costs of the applicant to be paid by the respondent as agreed or assessed.
Conclusions as to orders
1. Members of the public are entitled to expect that a member of the Legal Profession can be trusted and has integrity. The practitioner's conduct complained of in the 3 applications before the Tribunal involved deception and dishonesty. He has demonstrated disrespect for the Law Society and the Legal Services Commissioner in terms of his obligations to respond to their requests for information and to assist their investigations.
2. He has demonstrated substantial failures to achieve a reasonable level of competence and a reasonable level of diligence in acting for his clients in his chosen field of Family Law, including keeping his client informed and obtaining his client's instructions. He has a considerable history of not being trustworthy and of making misrepresentations to his clients and others, even the District Court.
3. His disciplinary record and the findings in the Law Society proceedings heard with this application establish that his dishonest and deceptive conduct has occurred over a considerable period. Despite prior disciplinary proceedings, he has not desisted from such conduct.
4. The public are entitled to trust their solicitors and rely upon them. They public are entitled to expect a solicitor to act with integrity. The practitioner has demonstrated that he does not have integrity and cannot be trusted by a client, nor by the Law Society of the Legal Services Commissioner.
5. In each of the 3 applications heard the practitioner has been guilty of professional misconduct. In the context of his prior professional misconduct, each justifies a finding that he is not a fit and proper person to engage in legal practice.
6. Together the grounds proved compel that finding and require that he be removed from the Roll.
Costs
1. Pursuant to clause 23(1) of Schedule 5 to the Civil & Administrative Tribunal Act 2013 where there is a finding of professional misconduct in disciplinary proceedings, the Tribunal "must make orders for the legal practitioner to pay the costs of the Council and (in this case the Commissioner) unless the Tribunal is satisfied that exceptional circumstances exist".
2. There are no exceptional circumstances disclosed by the evidence that require that such a cost order not be made.
Orders
1. Accordingly, the orders of the Tribunal made 21 March 2016 were:
1. The respondent, Hugh James Byrne, is guilty of professional misconduct;
2. The name of the respondent is to be removed from the Roll of Solicitors;
3. In matter 15201196, the respondent must pay the costs of the Legal Services Commissioner of and incidental to the proceedings as agreed or assessed;
4. In each of matters numbered 1420166 and 1520188, the respondent must pay the costs of the Law Society of NSW of or incidental to the proceedings as agreed or assessed.
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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
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Decision last updated: 03 April 2019