Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Legal Services Commissioner v Thurairajah [2011] NSWADT 287
• Hearing dates: 1 August 2011
• Decision date: 07 December 2011
• Jurisdiction: Legal Services Division
• Before: G Mullane - Judicial Member,; S Hale - Judicial Member; C Bennett - Non-judicial Member.

Decision

1.The respondent is guilty of professional misconduct;

2.The Respondent is publicly reprimanded;

3.The respondent must pay a fine of $5,000.00; and

4.The Respondent must pay the costs of the Legal Services Commissioner of and incidental to the proceedings, such costs to be as agreed or as assessed.

• Catchwords: Solicitor, discipline, obstruct or mislead investigator, reasonable excuse.
• Legislation Cited: Legal Profession Act 2004
• Cases Cited: Taikato v R (1996) 186 CLR 454 [1996] HCA 28; Legal Services Commissioner v Tsolakis [2000] NSWADT 21.
• Category: Principal judgment
• Parties: Legal Serices Commissioner (Applicant); Harinee Thurairajah (Respondent)
• Representation: Ms C A Webster for the Applicant; Mr S Crawshaw SC for the Respondent; Thurai Rajah Lawyers for the Respondent
• File Number(s): 102016

reasons for decision

INTRODUCTION

1 This was a hearing of disciplinary proceedings against the respondent solicitor commenced by the Legal Services Commissioner by the application filed with the Tribunal on 22 June 2010. The hearing was on 1 August 2011.

VARIATION OF THE APPLICATION

2 At the hearing the Commissioner sought to proceed only on the first of 2 grounds in the application. The second Ground was: " The Respondent, without reasonable excuse, failed to communicate with the Office of the Legal Services Commissioner ". The particulars referred to failure to respond to a letter of 1 September 2009 regarding a complaint by Mr Peter Cornock on behalf of Mr Paul Galea and failure to respond to letters of 31 July 2009 and 1 September 2009 regarding a complaint by Ms Sharlene Naismith on behalf of Mr Henry Stoerr.

3 Section 555 of the Legal Profession Act 2004 ("the Act) provides:

555 (1) The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances.

(2) The Commissioner is to be regarded as the applicant in connection with a disciplinary application for the purposes of an application by the Commissioner under section 545(1)(i)(Decision of Commissioner on review).

(3) Without limiting subsection (1), when considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the disciplinary application will affect the fairness of the proceedings.

(4) The inclusion of an additional allegation is not precluded on any or all of the following grounds:

(a) the additional allegation has not been the subject of a complaint,

(b) the additional allegation has not been the subject of an investigation,

(c) the alleged conduct concerned occurred more than 3 years ago.

4 The amendment to omit Ground 2 will not cause any unfairness to either party. We are satisfied that the amendment is reasonable, having regard to all the circumstances and findings set out in these reasons.

THE GROUND

5 Although the application included two grounds of alleged professional misconduct, at the hearing the Commissioner proceeded with only Ground 1 which was:

The Respondent obstructed or mislead an Investigator exercising a power under the Legal Profession Act without reasonable excuse in breach of section 674 of the Act.

THE RELEVANT SECTION

6 Section 674 of the Legal Profession Act 2004 provides:

(1) A person must not, without reasonable excuse, obstruct or mislead an investigator exercising a power under this Act.

Maximum penalty: 100 penalty units.

(2) In this section:

Obstruct includes hinder, delay, resist and attempt to obstruct.

THE REPLY

7 The respondent denies the ground in her reply and gives the following particulars:

1.1 The respondent injured her right hand in December 2008 and was subsequently diagnosed with Complex Regional Pain syndrome.

1.2 The Respondent was on sick leave from August 2009 to June 2010.

1.3 In relation to the Practice Review, by letter dated 19 February 2010, the Respondent informed the applicant that the Practice Review would be facilitated at a mutually convenient time, upon the Respondent return to Thurai Rajah Lawyers from sick leave.

8 It appears from the Reply that the defence was one of reasonable excuse, rather than denial that her conduct obstructed or mislead an investigator. The Respondent in her Reply did not dispute any of the particulars in the Application.

THE EVIDENCE

9 The evidence comprises:

1 The Application filed 22 June 2010;

2 Affidavit of the Legal Services Commissioner sworn 16 June 2010;

3 The Reply filed 16 July 2010;

4 Affidavit of the respondent sworn 20 October 2010;

5 Affidavit of the Legal Services Commissioner sworn 17 March 2011;

6 Affidavit of Esther Charlotte Bedggood sworn 5 April 2011;

7 Affidavit of the respondent dated 21 August 2011 (sic), which was filed with the Tribunal on 21 July 2011;

8 Affidavit of Dr Ross Mellick dated July 2011 and filed with the Tribunal on 29 July 2011;

9 Affidavit of Dr Ivan Thomas Lorentz sworn 28 July 2011;

10 Affidavit of the respondent sworn 28 July 2011;

11 Oral evidence and cross examination of the Respondent on 1 August 2011;

12 Oral evidence and cross examination of Dr Mellick on 1 August 2011;

13 Oral evidence and cross examination of the Dr Thomas on 1 August 2011;

BRIEF BACKGROUND

10 At all material times the respondent held a current Practicing Certificate as a solicitor. From July 2003 onwards she was the sole director and principal solicitor of a company "Legal Group 525 Pty Ltd" carrying on a solicitors practice under the business name "Thurai Rajah Lawyers". The practice was registered with the Law Society as conducting business from premises at Pitt Street, Sydney. That was the registered practice address of the respondent.

11 In December 2008 the respondent suffered an injury to her right hand. She was, in addition to her work as a solicitor, working full time with Sydney Water as a Senior Procurement Specialist. She had been in that employment, in addition to conducting the legal practice, since April 2008. Her duties in her employment included vetting proposed contracts involving Sydney Water, making conflict of interest assessments, and providing necessary disclosures to all parties to avoid any conflict of interest. She also carried on some of the business of the legal practice business from her home at Cherrybrook, but this was not her registered address with the Law Society.

12 After the injury to her right hand, the respondent continued her full time employment with Sydney Water.

13 On 20 April 2009 the Legal Services Commissioner sent a letter to the Respondent at her registered office as a result of complaints by clients. In that letter he referred to "various requests for information" with regard to those complaints. He asked that she telephone his office and arrange an appointment to see him. She did not respond.

14 The Legal Services Commissioner served a letter dated 8 May on the respondent by prepaid post addressed to her at her registered office in Pitt Street, Sydney. The letter drew the attention of the respondent to the provisions of subsections 140(3) and (5) of the Legal Profession Act 2004, which provide:

(3) Each legal practitioner director of an incorporated legal practice must ensure that appropriate management systems are implemented and maintained to enable the provision of legal services by the incorporated legal practice:

(a) In accordance with the professional obligations of Australian legal practitioners and other obligations imposed by or under this Act, the regulations or the legal professional rules, and

(b) So that those obligations of Australian legal practitioners who are officers or employees of the practice are not affected by other officers or employees of the practice.

(5) A contravention of subsection (3) by a legal practitioner director is capable of being professional misconduct.

15 In the letter the Commissioner also stated:

I refer to various requests for information with respect to complaints made to the OLSC (complaint numbers 27465 and 28599). I also refer to my letter of 20 April 2009 in which I requested that you telephone this office in order to make an appointment to attend this office and see me. I note you have not done so.

I also note that in my letter I stated:

"If you fail to respond to this request I will arrange to undertake a compliance audit of your practice in terms of s670 of the Legal Profession Act."

In view of your lack of response and failure to make an appointment with me, I have concerns about the appropriateness of the management systems adopted by Thurai Rajah Lawyers (Thurai), as an ILP and the compliance of Thurai with its obligations under the Act, the Regulations and the Rules. Accordingly, my Office will conduct a practice review of Thurai's management systems and compliance with its other obligations to ascertain whether Thurai is meeting the requirements of the Act and Regulations.

Practice review

Esther Bedggood, Acting Practice Review Officer, and David Pashley, Compliance Project officer, will attend your premises to begin the practice review. Ms Bedggood will telephone you within 10 days of the date of this letter to arrange an appropriate time to attend your offices.

The practice review process will be as follows:

Step 1: Initial preparation by Thurai

A copy of the practice review plan will be sent to you one week prior to the practice review commencing. The self-assessment document sent to you in 2004 will form the framework for the conduct of the practice review. I recommend that you review the practice review plan and consider how you might answer the questions proposed by my office. Reviewing the questions prior to the actual practice review will minimise the time spent by my staff at your office and also allows you to familiarise yourself and your employees with what is expected during the practice review.

My staff will have some initial questions to confirm data we hold relating to the operation of the ILP. My staff will then discuss and work through the completed self-assessment document with you.

Step 2: Practice Review

During the practice review, the following will occur.

Ms Bedggood will have a meeting with you when she arrives to discuss the approach to be taken and to answer any questions you may have. Other legal practitioner directors (if any) of Thurai, and any other members of management who are involved in the provision of legal services are welcome to attend this meeting. If there are any areas in the self-assessment of your management systems which you have determined to be less than "C" i.e. "Compliant", my staff can provide helpful suggestions to assist you to take remedial action and thereby ensure that your systems become compliant;

Client files may also be audited under your supervision so that my staff can determine the extent of compliance; and

Short interviews will be conducted with your employed solicitors and other staff members so that my staff can ascertain the level of compliance by your staff with management systems.

Closing interview where my staff will summarise and indicate the next steps involved.

It is anticipated that the audit will take two days.

Step 3: Follow up investigations

After the practice review, my staff may contact you or visit your premises again to obtain any additional information, which may be required to complete the practice review.

Step 4: Preparation of practice review Report

My office will prepare a practice review report in respect of Thurai management systems and compliance with other obligations. You will be sent a copy of the practice review report and asked for comments. The practice review report will then be finalised by my Office and a copy of the final report may be forwarded to the Law Society.

Step 5: Compliance period

Thurai will be granted a three month "Compliance Period", to commence from the date of the final practice review report. During the Compliance Period, Thurai will have the opportunity to ensure that any areas of its management systems that are rated less than "C" (Compliant), as per the self-assessment document, becomes compliant.

Step 6: Follow up practice review

At the end of the Compliance Period, my office will contact you to arrange a follow-up practice review. The purpose of the follow-up practice review will be to verify that appropriate management systems have been put in place to address the objectives set out in the self-assessment document which were rated less than "C".

Final Comments

It is intended that the practice review of your management systems and compliance with other obligations will occur with minimum disruption to your normal business activity. Accordingly, please ensure that suitable facilities are made available to my staff, for your staff to be available for short interviews with my staff, and for your client files to be easily accessed by my staff.

Please note that even when full compliance is achieved, my Office is not precluded from conducting further reviews of your management systems and compliance with other obligations to ensure on-going compliance. Furthermore, the conduct of a practice review by my Office will not nullify any future complaints that may be raised in respect of Thurai.

If you have any questions in relation to the practice review or the practice review process, please do not hesitate to contact Ms Bedggood on 9377 1800.

Thank you for your co-operation.

Yours sincerely

Steve Mark

Commissioner

cc. Professional Standards Department, Law Society of NSW

16 In July 2009 the respondent closed the Sydney office, but continued to do some legal work from her home at Cherrybrook and also continued her full time employment with Sydney Water.

17 The respondent's problems with her right hand had worsened since December 2008 and also had affected her left hand, From 4 August 2009 until 22 December 2009 she was on sick leave from Sydney Water. She was diagnosed in October 2009 as suffering from Complex Regional Pain Syndrome, which appears to have developed because of her ongoing use of her right hand when she had not recovered from the injury. She continued to undergo treatment.

18 On 23 December 2009 the respondent commenced a Return to Work Program at Sydney Water. The Program involved her attending her work, but with limits on the types of activity she could perform, limits on the periods for which she could perform some duties, and prescribed breaks. The Program, through gradually reducing restrictions, was intended to enable her to return to normal duties.

19 The respondent was released from the Return to Work Program on 23 June 2010. She then resumed her normal duties in full time employment with Sydney Water, but subject to a self management regime intended to avoid any over-use of her right hand and consequent relapse.

20 Subsequently the Respondent had communications with the office of the Legal Services Commissioner and the Audit was commenced on 24 September 2010 and completed that day.

WHAT THE COMMISSIONER ASKED OF THE RESPONDENT

21 The letter of the Commissioner of 8 May 2009 proposed the following:

(1) Be available to receive a telephone call from Ms Bedggood to arrange an appropriate time for the Audit.

(2) It was recommended that on receipt of the review plan one week prior to the Practice Review commencing the Respondent review the plan "and consider how you might answer the questions proposed by my office".

(3) At the start of the review there would be some initial (oral) questions to confirm some of the data held by the Legal Services Commissioner regarding the incorporated legal practice. The persons conducting the Review would then "discuss and work through" the completed self-assessment document provided to the Respondent in 2009.

(4) During the Practice Review it was proposed that Ms Bedggood would have a meeting with the Respondent upon arrival to discuss the approach to be taken and answer any questions of the Respondent.

(5) It was proposed that "Client files may also be audited under your supervisions so that my staff can determine the extent of compliance".

(6) "Short interviews will be conducted with your employed solicitors and any other staff members so that my staff can ascertain the level of compliance by your staff with management systems." (The Respondent had no employed solicitors or other staff.)

(7) "There would be a closing interview where the Legal Services Commissioner's staff would summarise and indicate the next steps involved."

(8) After the Practice Review the staff from the Legal Services Commissioner might contact the Respondent or visit her premises again to obtain any additional information required to complete the Practice Review.

22 The Respondent would then be sent a copy of the Practice Review Report and asked for comments, whereupon the Review report would be finalised by the Legal Services Commissioner.

23 The first step was participate in a telephone conversation with Ms Bedggood to arrange when the Audit would occur. The second step was to read the review plan which would be provided a week before the audit. The third step was to make herself available at her office for the audit, answer any questions (orally) and supervise any audit of any of her files. The next stage was for her to be present at her premises for an exit interview when the Legal Services Commissioner's staff would summarise the audit and tell her what further steps, if any, were proposed.

24 There was no requirement or proposal for the Respondent to do any writing or any keyboard work. There was no requirement for her to do any lifting or anything repetitive with either hand.

ORDERS SOUGHT

25 In his Application of 16 July 2010 the Legal Services Commissioner sought the following Orders in relation to Ground 1:

1 A finding that the Respondent is guilty of professional misconduct.

2 In the alternative, a finding that the Respondent is guilty of unsatisfactory professional conduct.

3 Order that the Respondent's name be removed from the roll of practitioners.

4 Further, and in the alternative, order that the respondent be publicly reprimanded.

5 In the alternative, order that the Respondent be fined.

6 Order that the Respondent pay the costs of an incidental to the filing and hearing of the information.

7 Order that a compliance audit be conducted of the Respondent's incorporated legal practice pursuant to section 670(1) and (2) of the Act.

26 However, at the hearing, the Commissioner amended the Application to omit Orders 3 and 7 of the orders sought in the application.

PARTICULARS OF GROUND

27 Particulars of the ground in the Application (which the Respondent did not dispute in her Reply) are as follows:

Particulars 1.1

The Respondent was notified of the Commissioner's intention to conduct an audit of Thurairajah Lawyers (the practice) pursuant to sections 670(1) and (2) of the Act on 8 May 2009. The notification was sent to the Respondent 's registered office address.

Particulars 1.2

Pursuant to the contents of that letter Esther Bedggood, Practice Review Officer, attempted to contact the Respondent via telephone in order to arrange a suitable time to attend the practice to conduct the audit. Two telephone numbers were listed for the practice -9634 1170 and 9267 8810. Messages were left at voicemail on both telephone numbers on the following dates:

a) 21 May 2009

b) 22 May 2009

c) 25 May 2009

d) 26 May 2009

e) 5 June 2009

f) 9 June 2009

g) 10 June 2009

The Respondent did not return the telephone calls.

Particulars 1.3

David Pashley, Compliance Project Officer, attended the registered office of the Respondent at The chambers 1105, 370 Pitt Street, Sydney in order to arrange a suitable time to attend the practice and hand deliver the letter of 8 May 2009. The office was shut and the Respondent was not present on the following dates:

a) 26 May 2009

b) 27 May 2009

c) 28 May 2009 morning and afternoon

d) 29 May 2009

e) 5 June 2009

Particulars 1.4

A copy of a letter dated 8 May 2009 was sent to the Respondent's home address of 29 May 2009.

Particulars 1.5

On 11 June 2009, the Respondent telephoned the OLSC and spoke to Esther Bedggood. Following discussion with Ms Bedggood, the Respondent agreed to attend the OLSC's office

At 2.30pm on Wednesday 17 June 2009 to discuss the impending audit and complaints that the Respondent had not responded to.

Particulars 1.6

On 16 June, the Respondent left a voicemail on Ms Bedggood's telephone requesting that the meeting be rescheduled to 22 June 2009. On 16 June, 17 June and 19 June 2009 Ms Bedggood telephoned the Respondent and left voicemail messages on both telephone numbers in an attempt to reschedule the meeting. The Respondent did not return Ms Bedggood's calls to confirm the meeting.

Particulars 1.7

The Respondent attended the OLSC on 22 June 2009. During the meeting it was agreed that the practice review would be put on hold until the Respondent had responded to section 660 notices in relation to complaints that had been made about her failure to respond.

Particulars 1.8

The Respondent was due to respond to the section 660 notices on 17 July 2009. The Respondent telephoned Ms Bedggood on 17 July and requested an extension until close of business 20 July 2009.

Particulars 1.9

Following the Respondent's response to the section 660 notices, Ms Bedggood attempted to contact the Respondent to arrange a suitable time to conduct the audit. Ms Bedggood telephoned and left messages at the listed telephone numbers on the following dates:

a) 24 August 2009

b) 26 August 2009

c) 1 September 2009

d) 3 September 2009

The Respondent did not return the calls

Particulars 1.10



On 7 September 2009 Ms Bedggood again attempted to contact the Respondent by telephone number 9634 1170. Later that day the Respondent left a message on Ms Bedggood's voicemail stating that she had been on sick leave since the beginning of August. The message stated that the Respondent would telephone the following day and that 02 9634 1170 was the best telephone number to contact her.

Particulars 1.11

On 8 September 2009, the Respondent left a message on Ms Bedggood's voicemail stating that she was still on sick leave and would be so until the end of the week and that she would telephone again on 10 September 2009.

Particulars 1.12

On 11 September 2009, Ms Bedggood telephoned the Respondent on 02 9634 1170 and left a voicemail message asking her to return the call. On 16 September Ms Bedggood left a voicemail message on the Respondent's mobile telephone voicemail.

Particulars 1.13

On 17 September 2009, the Respondent sent a facsimile to Ms Bedggood stating that "due to unavoidable circumstances and prior commitments" she was unable to address Ms Bedggood's call. The facsimile also stated that the Respondent would be on leave from 21 September 2009 up to 16 October and that she would contact Ms Bedggood upon her return to arrange a mutually convenient time to meet,

Particulars 1.14

On 28 September 2009, Ms Bedggood sent a letter to the Respondent's home address noting that she would telephone on 19 October 2009 to arrange a suitable time to conduct an audit of the practice.

Particulars 1.15

Telephone messages were left for the Respondent on the practice telephone voicemail by Ms Bedggood on:

a) 21 October 2009

b) 23 October 2009

c) 26 October 2009

d) 26 November2009

It was not possible to leave messages on the Respondent's mobile telephone number as the number went straight to voicemail and the mailbox was full. The Respondent did not return the calls.

Particular 1.16

By letter dated 1 December 2009, Ms Bedggood notified the Respondent that she would attend the Respondent's home address at which her office is now located to conduct an audit of the practice on 18 January 2010. The letter was sent via Australia Post, Registered Post, facsimile, email and a voicemail message was left on the Respondent's office telephone

number advising of the audit date.

Particular 1.17

On 11 January 2010, Ms Bedggood telephoned the Respondent on her mobile phone number to confirm her arrival time at the practice on 18 January 2010. The Respondent alleged that she had sent a letter in mid December 2009. At that time the OLSC had received no such correspondence.

Particular 1.18

During the conversation the Respondent stated that she was unable to attend the audit as her office was closed until 1 February and that she had signed herself off on sick leave until the end of April 2010.

Particular 1.19

Subsequent to that telephone call the OLSC received a copy of a letter from the Respondent dated 18 December 2009. The letter was not received by the OLSC until 11 January 2010.

Particular 1.20

On 22 January 2010, a letter was sent to the Respondent notifying her of the grounds of the complaint and requesting her submissions. The letter was sent via facsimile, Australia Post, registered post, email and personal service. The email was unsuccessfully delivered. Personal service was not completed as the agent found no person in attendance at the practitioner's registered address, despite there being a sign for Thurairajah Lawyers at the premises.

Particular 1.21

By letter dated 19 February 2010 the Respondent advised the OLSC that she was on sick leave due to Complex Regional Pain Syndrome and would be unable to provide submissions or comply with the OLSC's request to conduct an audit until she returned to work. The Respondent provided a certificate of sickness from a Dr S Balakrishnan of Yagoona, which stated that she had progressed to suitable duties with the assistance of a hand therapist and would be returning to normal duties by April 2010.

Particular 1.22

By letter dated 26 February 2010, Ms Bedggood advised the Respondent that she would not be expected to provide submissions until April 2010 and that Ms Bedggood would contact her at that time.

Particular 1.23

Telephone messages were left on both the practice and personal mobile phone of the Respondent by Ms Bedggood on

a) 12 April 2010

b) 19 April 2010

c) 20 April 2010

d) 22 April 2010

The Respondent did not return those calls.

Particular 1.24

By letter dated 27 April 2010 Ms Bedggood sent a letter to the Respondent advising her that a response was required by 12 May 2010. The letter was sent via facsimile, email, registered post and Australia Post. The respondent did not respond in that time.

Particular 1.25

Further telephone messages were left on the Respondent's practice and personal mobile telephone numbers on 17 May 2010. The Respondent did not return those calls.

CREDIT OF THE RESPONDENT SOLICITOR

28 In her affidavit of 20 October 2010 the Respondent swore that she was " placed on sick leave in August 2009 pending further medical assessment ". In her affidavit swore 21 July 2011 she said she was " placed on sick leave from SWC in August 2009 pending further medical assessment " and " On or about 4 august 2009, SWC declared me unfit to work because of my medical condition ." In letters of instruction to 2 Neurologists she engaged to do reports for this hearing she said, " She was declared unfit for work and stood down from her position with Sydney Water Corporation in August 2009 ". These statements expressly or impliedly convey that her employer initiated the sick leave. However, any such indication is hearsay evidence and the Respondent has not provided any admissible evidence that Sydney Water initiated the sick leave. On the contrary, the Respondent obtained various sickness certificates from her general practitioner from 4 August 2009 onwards and took sick leave. On the evidence we find that it was the Respondent who initiated the sick leave. There was no reliable evidence provided that she was "stood down" by Sydney Water.

29 There is no evidence that her employer agreed to her having any of the sick leave before she took it. We find on the evidence that the sick leave allowed to the Respondent by Sydney Water was in response to the medical certificates she provided from her general practitioner and was not initiated by Sydney Water.

30 The certificate for 4 August 2009 certified that she would be unfit for work "on keyboards" up to and including 7 September 2009. It did not say she was unfit for work generally. The certificate of 24 August 2009 certified that since 4 August she had not been using keyboards or using her hands and would be unable to attend her work until 7 September 2009. The Certificate of 9 September 2009 certified that she was unfit to attend her work from 7 September to 9 September inclusive.

31 There were subsequent Workcover certificates the Respondent relied upon dated 23 October 2009, 18 November 2009, and 19 December 2009. Each of these was signed by her general practitioner.

32 The certificate of 23 October 2009 said that she should not lift anything more than 250 grams with her right hands and she had the capacity on suitable duties to work at her pre-injury hours per day and for five days per week. The suitable activities would have had to avoided activities that aggravate the right hand and wrist and to provide for rest periods, therapy and analgesics.

33 The certificate of 18 November 2009 similarly certified her as fit for suitable duties from 26 October 2009. It recommended that suitable duties would involve her having assistance for typing and continuing hand therapy and hand exercises. It recommended use of voice-recognition software.

34 The certificate of 9 December 2009 also certified her as fit for suitable duties. It noted that the diagnosis was "Complex Regional Syndrome of right hand". It recommended no lifting of weights over 200 grams, no repetitive lifting, and maximum 15 minutes of typing with 15 minutes off after it.

35 In her second affidavit she alleged that in a telephone conversation with Ms Bedggood on 11 January2010 she asked Ms Bedggood for a copy of the Audit Check List and Ms Bedggood agreed to send her one. She said that Ms Bedggood didn't send it. The Respondent produced no record of the conversation. In Ms Bedggood's detailed record of the conversation there is no reference to any Audit Check List. There is a statement, however, " I said that I did not require her to bring anything in relation to the audit of the practice at this stage." The letter of 8 May 2009 did not require the Respondent to complete any document and did not refer to any Audit Check List. On the balance of probabilities there was no statement by Ms Bedggood that she would send any Audit Check List for completion.

36 In an e-mail the Respondent send to Esther Bedggood on 15 January 2010 the Respondent said, "We confirm we have not as yet been provided with the Practice Review Plan. As per our discussion, can you please provide same by facsimile ..." The letter of the Legal Services Commissioner to the Respondent of 8 May 2009 clearly indicated that the Practice Review Plan would be sent to the Respondent a week prior to the audit commencing. When the Respondent sent that e-mail, she had already written on 18 December to the Legal Services Commissioner and and spoken to Ms Edggood on 11 January and advised on both occasions that she would not facilitate the audit that had been arranged for 18 January 2010 and proposed that it be deferred until March or April 2010. A new date had not been fixed, so there was no requirement at that stage for her to be given the Practice Review Plan.

37 In cross examination about a telephone conversation between Ms Bedggood and the Respondent on 11 January 2010, the Respondent said " I told her what my medical condition was and she termed it as "ridiculous". The Respondent had not previously given such evidence in either of her affidavits. She did not allege that she made any record of the conversation. The file record made by Ms Edggood on the day of the conversation shows a very different version. It includes "I again expressed my frustration about her lack of communication and again told her that I had been attempting to arrange this audit since May last year. I said it was getting ridiculous." Ms Bedggood was not cross-examined. We find Ms Bedggood's version of what was said involving the term "ridiculous" more likely.

38 The Respondent intentionally mislead the investigator in the conversation of 11 January by failing to disclose to her that in December she had been found suitable to return to full time work on a Return to Work Plan and she was waiting for the Plan to be agreed upon;

39 In a letter of 19 February 2010 to the Commissioner, the Respondent said:

"As previously indicated, I have no objections to a Practice Review and as duly acknowledged by Ms Bedggood I note I have complied with your prior request for a Practice Review. Unfortunately, I am unable to facilitate the same at present and can only facilitate the same on my return to work. In this contest, as previously indicated, I will contact Ms Bedggood on my return to convene a mutually convenient time."

40 The evidence is that at that time the Respondent had been eligible to return to work on a full time basis under a Return to Work Program since 23 December 2009 and on her evidence had been attending work on that basis since 18 January 2010, a month before she wrote the letter. The letter was misleading in that it omitted to disclose that she had returned to work (at Sydney Water) 32 days before and purported that she had not returned to work.

41 In cross-examination the witness was repeatedly evasive. She avoided many questions when, it appeared, the answer might not assist her case. She sought to minimise her capacity. For example, when it was put to her that she was able to do some work over the period from December 2009 to beyond 17 February 2010, she replied, "a minimal amount".

42 When it was put to her that she did some work in January, she replied, "I wouldn't call it 'work'. It was 'team work'."

43 Despite cautions from the panel about her evasiveness, she continued to be evasive. It was put to her that at no time between December 2009 and May 2010 did her doctor indicate that she was unfit to attend work five days per week. She avoided the question and gave an unresponsive answer. The question was repeated and she conceded the proposition. When she was asked about suitable duties that had been suggested for her, she was again evasive.

44 She told the investigator, Ms Bedggood, on 11 January that her letter of 18 December "outlines my medical condition". But it did not disclose what medical condition she had and what effects it had on her. We find that because she had repeatedly withheld such information from the investigator and the Commissioner, she knew that the letter did not disclose the diagnosis or the effects of her problem and her statement was knowingly false;

45 Although she did not deny receiving the letter of 8 May 2009 which was sent to her at her registered office address in Pitt Street Sydney, and also a copy that was sent to her on 29 May 2009 to her residential address, she swore in her affidavit that she told Ms Bedggood on 11 June 2009 in the telephone conversation, when the letter of 8 May 2009 was referred to, "I don't recall having received such a letter ... What is it all about? ... Can you please send me a copy of it? ... What do I need to bring on the day?" Ms Bedggood's record of the conversation made that day records that the Respondent told her she had received no letter from the Office of the Legal Services Commissioner since the letter of 8 April.

46 We find that the Respondent, purported to Ms Bedggood that she didn't recall the letter of 8 May 2009 or the letter of 29 May 2009 enclosing a copy of the letter of 8 May and that was untrue in respect of both letters. We find she intended to mislead Ms Bedggood.

47 In the telephone conversation with Ms Bedggood of 11 January 2010, Ms Bedggood asked her, in relation to the allegation that she was suffering Complex Regional Pain Syndrome and was on sick leave, "Who approved your leave? Do you have a medical certificate?"

48 The Respondent replied, "I have placed myself on sick leave as I am not fit to work. I haven't got a medical certificate but I can get one when I next see the doctor if you need one ..." Of course, at that stage, the Respondent had been on sick leave from 4 August 2009 to 23 December 2009 and had still not resumed employment and presumably had been continuing to receive sick leave payments. She had in the period between 4 August 2009 and the conversation on 11 January 2010 obtained six medical certificates from her general practitioner. They, or copies, were apparently in her possession, because they were attached to her affidavit of 21 July 2011 and also because of other oral evidence she gave.

49 We find that the statement she made to Ms Bedggood on 11 January 2010 that she did not have a medical certificate was untrue and misleading.

50 When cross-examined about this, it was put to her that she said in her affidavit that she did not have a medical certificate, but she did. She replied that she did not have one regarding the law practice. It was then put to her that she had extensive medical certificates by January 2010, but said she had no medical certificate. She avoided the question. When it was put to her a second time she answered, "Yes".

51 It was put to her that when she said to Ms Bedggood that she was "on sick leave as I am not fit to work", she was implying that she was unable to do any work. She avoided the question. It was only when it was repeated to her that she conceded the proposition. Then when it was put to her again that she had a number of medical certificates when she told Ms Bedggood that she had none, she said, "Yes, but I didn't think of them", which contradicted her earlier evidence.

52 She intentionally mislead the investigator, Ms Bedggood, on 11 January when she further described her medical condition in that conversation and also by her statements that she would be on sick leave till the end of January, and that "I have another assessment at the end of January to determine how much longer I am required to be on sick leave";

53 In her affidavit of 21 July 2011, the Respondent swore that the letter of 29 May 2009 that she received from the Office of the Legal Services Commissioner "enclosed a copy of the letter of 8 May letter [sic] but did not include the audit check list referred therein". But the letter of 8 May 2009 made no reference to any "audit check list". When this was put to her in cross-examination, the Respondent avoided the question twice.

54 When the Respondent was cross-examined about not returning telephone calls, she said that in 2009: "I wasn't 100% able to answer phone calls. The office was in my home and was shut." She said the office was closed from 18 December 2009 and did not re-open until 24 June 2010. She then testified that during that period there was a message bank on the telephone service which informed callers that she would return their calls. She volunteered: "Anyone who wanted to contact me should have sent me a text message". She said she did not attend to any mail till she returned on 24 June 2010.

55 When asked about a letter of 27 April 2010, she received from the Legal Services Commissioner, she was asked whether she responded to it and she replied, "No. The office was closed." This was notwithstanding that a doctor's certificate had certified her fit for her normal employment duties at Sydney Water from 10 April.

56 By letter of 17 September 2009 at a time when the Respondent was on sick leave from Sydney Water, she wrote to Ms Bedggood and said:

"Following my message last Tuesday, I regret due to unavoidable circumstances and prior commitments, I have been unable to address your call. I am on leave from the 21 September 2009 up to the 16 October 2009. I will contact you on my return to arrange a mutually convenient time to meet."

57 It appears that the reference to being on "leave" was misleading in that in fact she was on sick leave. In her subsequent letter of 18 December 2009 she again purported that she was on leave for that period. She said, "By my letter of 17 September 2009 I indicated to Ms Bedggood that I was on leave and would contact her on my return to work. Unfortunately I have had to extend my leave due to medical reasons."

58 Contrary to Particular 1.5 in the Application where it alleges that the Respondent in the telephone conversation of 11 June 2009 agreed to attend at 2.30pm on Wednesday, 17 June 2009, the Respondent says, "I tentatively agreed". There was no cross examination of Ms Bedggood and the Respondent's credit was poor. We accept Ms Bedggood's evidence and find on the balance of probabilities that the Respondent did agree on 11 June to attend on 17 June to discuss the proposed audit and client complaints. It was not expressed to be a tentative agreement.

59 In her affidavit sworn 21 July 2011 (dated 21 August 2011) the Respondent acknowledged receiving telephone messages in late May/early June. She swore that they were "unclear, faint". But she had not in her Reply or her first affidavit disputed having received any of those messages.

60 We found that the Respondent was frequently evasive in oral evidence, gave inconsistent evidence and at times lied. She was an unreliable witness.

PERIOD 8 MAY 2009 TO 20 JULY 2009

61 Particulars of the Ground numbered 1.1 to 1.8 relate to this period. They are supported by the evidence in the applicant's case. This was the period from the giving of the request to phone to make an appointment so that arrangements could be made for the audit until the Respondent was told at a meeting with representatives of the applicant on 22 June 2009 that the priority was for her to comply with notices under section 660 of the Act served on her that day and she would not be required to further respond to the requests in respect of the proposed practice audit until she had complied with the notices.

62 The Respondent in her Response did not take issue with any of the particulars 1.1 to 1.8. In her first affidavit (dated 20 October 2010) she did not dispute any of those particulars. Her defence is that she had injured her hand and had Complex Regional Pain Syndrome. She was not on sick leave because of any hand problems in that period.

What is the relevant conduct established?

63 She did not respond to the letter of 8 May. A copy of the letter of 8 May 2009 was also sent to her at her home address on 29 May 2009.

64 In her oral evidence in cross-examination on 1 August 2011 the Respondent did not deny receipt of the Notice of 8 May 2009 and in her affidavit of 21 July 2010 she conceded receipt of the copy with a letter from the Legal Services Commissioner in early June 2009 (presumably the letter of 29 May which also included a copy of the letter of 8 May).

65 We find on the balance of probabilities that the Respondent received the letter posted on Friday, 8 May 2009 by Tuesday, 12 May 2009. Despite four subsequent telephone messages from Ms Bedggood in May, receipt of a further letter from the Legal Services Commissioner with a copy of letter of 8 May in early June, and in the period 21 May to 10 June, 7 further telephone messages from Ms Bedggood to call her about the audit, the Respondent did not make contact with Ms Bedggood regarding the letter of 8 May until 11 June 2009, about 30 days after she first received the letter of 8 May.

66 There were voice-mail messages left by Ms Bedggood on 21, 22, 25, and 26 May and 5 and 9 June asking her to call. She did not dispute that Ms Bedggood had left a message for her again on 10 June 2009. The Respondent in her affidavit said that the first occasion she attempted to contact Ms Bedggood was on 10 June, 20 days after the message of 21 May and about 9 days after she received the letter of 29 May and the copy of the letter of 8 May. Her evidence is that she attempted to phone Ms Bedggood 3 times (once on 10 June, and twice on 11 June) but according to the Applicant's records she left a message with reception and/or on the voice-mail for Esther Bedggood only once, on 10 June 2009 . That message was 21 days after the first phone message of Ms Bedggood (21 May) asking the Resondent to call.

67 The Respondent on 11 June 2009 spoke to Esther Bedggood. She said she could not make herself available any sooner than 17 June for the meeting. She agreed to attend the office of the Legal Services Commissioner on Wednesday, 17 June to discuss the proposed audit and complaints that she had not responded to.

68 She did not dispute that subsequently on 16 June she left a voice-mail message for Ms Bedggood requesting that the meeting be delayed until 22 June. Indeed she testified she had made prior calls once on 15 June and 4 times on 16 June, all apparently to seek to have the meeting postponed, but according to the evidence for the applicant she left no message on 15 June and only once left a message on 16 June.

69 The Respondent's explanation for deferring the meeting by her telephone message left on 16 June 2009 was that she was informed "on or about 16 June 2009 ... that I may be required to attend the Supreme Court of NSW in relation to a property proceedings to provide assistance and evidence on 17 June 2009". She has provided no evidence that she was in fact required to attend Court on 17 June or did attend. There is no other evidence in support of her allegation that she was informed "on or about 16 June 2009 ... that I may be required to attend the Supreme Court of NSW..................... on 17 June 2009".

70 The Respondent did not dispute that Ms Bedggood left messages for her on 16 , 17, and 19 June in an attempt to confirm the re-scheduling of the meeting and the Respondent did not return any of those calls. The meeting was rescheduled to 22 June.

71 When the Respondent attended the meeting on 22 June 2009, it was then agreed to defer the audit until such time as the Respondent had responded to the Notices under Section 660 of the Legal Practitioners' Act 2004 in relation to complaints that had been made about her failing to respond. That was due to occur by 17 July 2009. There is no evidence before us that even with her problems with her right hand, the 25 days allowed was not an ample period for her to respond to those notices, even if she had to have a friend, neighbour or family member under her instruction do the writing and the locating and copying of documents.

72 But the respondent did not comply with the Section 660 Notices by 17 July. She contacted Ms Bedggood on 17 July. Her evidence is she told Ms Bedggood:

I am still to photocopy the documents in support of the Response and have documents witnessed by an independent person. I do not think I will finish by close of business today. Can I please have some time till Monday just in case I do not finish in time?

73 Ms Bedggood spoke to the Commissioner and telephoned the Respondent to confirm that the time had been extended to close of business on 20 July 2009.

74 On that day the Respondent delivered both the responses to Ms Bedggood. She asked Ms Bedggood, "When would you like me to carry out the practice review?", and Ms Bedggood said, "I will contact you once the Section 660 Notices have been finalised ..."

75 We conclude that in the period from 8 May 2009 to 20 July 2009 the Respondent obstructed or mislead the investigator, Ms Bedggood, in that:

She delayed the investigator by not contacting Ms Bedggood to arrange an appointment (in response to the letter of 8 May, 14 telephone messages and the letter of 29 May) until 11 June;

She delayed the investigator on 16 June by declining to attend on 17 June and not making herself available till 22 June;

She delayed and obstructed the investigator by not returning her phone calls of 16,17, and 19 June; and

She delayed the investigator by not responding to the Section 660 notices by 17 June, the date specified in the notices, and not providing those responses till 20 July 2009.

What did the Respondent say about her reasons for not complying with the requests from the Legal Services Commissioner and Ms Bedggood in this period?

76 In her telephone conversation with Ms Bedggood on 11 June the Respondent did not mention any problem with her hands or any other health problem. In response to Ms Bedggood saying that visits to her Sydney office by representatives of the Legal Services Commissioner had found no one in attendance, the Respondent said "I only attend that office by appointment".

77 During the meeting on 22 June 2009 at the office of the Legal Services Commissioner, the Respondent was asked about the conduct of her Pitt Street office and she replied "I only attend the practice on Pitt Street by appointment. I have an agreement with the other members that share the suite that they tell clients that walk in to telephone me to make an appointment. At the moment I do not have clients." The respondent did not at any stage of that meeting mention any health problem.

78 During the period from 8 May 2009 to 20 July 2009 the Respondent did not disclose to the Commissioner or his staff any problem with her hands and did not indicate any of her failures to comply with their requests were because of any health problem.

79 In her affidavit of 20 October 2010 the client's only reference to her health in this period was her statement "Between December 2008 to August 2009, as my condition worsened, I was restricted from using my hands and placed on sick leave in August 2009...". She did not make any attempt to provide evidence as to the extent and effects of her hand condition in the period in question or precisely what the restrictions on use of her hands were, when they applied and who advised such restrictions. Her affidavit of 21 July 2011 was much more detailed, but still did not include any attempt by her to describe the effects of her hand condition in the period in question. Presumably if the condition worsened over the period, there would have been different levels of pain and of other problems.

What is the medical evidence of relevant effects of her hand problems for this period?

80 During that period of five months she was generally attending her employment at Sydney Water 5 days per week and working there seven hours per day, although suffering increasing problems with her hand(s).

81 The Respondent in her Reply did not state what the relevant effects of her hand problems were that amounted to a reasonable excuse for not complying with the requests in the letter of 8 May. She merely stated that she had injured her hand in December 2008, that she was subsequently diagnosed with Complex Regional Pain Syndrome, and that she was on sick leave from August 2009 to June 2010.

82 In her affidavit sworn 20 October 2010 she alleged that "between December 2008 to August 2009, as my condition worsened, I was restricted from using my hands. She did not provide any evidence of what relevant effects the condition had in the period 8 May 2009 to 20 July 2009. She annexed medical certificates to that affidavit, but none of them shed any light on her condition prior to October 2009.

83 She did not in her second affidavit provide any evidence by her of relevant effects of her hand condition in the period 8 May 2009 to 20 July 2009. Annexed to her affidavit were about 40 documents that were medical certificates, medical reports and health records and these included some evidence of the effects of her hand condition and the restrictions advised by health professionals. But none of those documents are dated prior to August 2009 except a radiologist's report of Dr Ketheswaran of 7 January 2009 in relation to XRays of the right hand and the right foot. He detected no abnormality. He did not relate what difficulties, if any, the Respondent was experiencing with either hand.

84 Evidence of her problems at or about the time she went on sick leave may have given some indication of her condition in the period 8 May 2009 to 20 July 2009. The sickness certificate of her general practitioner dated 4 August 2009 says she is suffering "carpal tunnel" in her right wrist and is unfit for work on keyboards until 7 September. It did not say she was unfit for work. It provided no information about her symptoms. The certificate of 24 August certified her unfit for work till 7 September. It too provided no information about her symptoms. The certificate of 9 September verified her unfit for repetitive use of her right wrist, such as using keyboards, for 3 months. It said she was "unable to attend her usual employment" from 7 to 9 September. It too provided no information about her symptoms.

85 Dr Ahmed Saafan, an occupational Health Specialist , saw the Respondent on 17 September for an assessment as to her fitness to return to work. He reported that the Respondent told him that in January 2009 she had intermittent swelling to the right hand and forearm, but an X Ray and an ultrasound showed no abnormality. She went to physiotherapy for 2 months. She told him that around June or August, she noticed discolouration of her skin in the right hand. A nerve conduction study of her hands was normal. Dr Saafan reported :

Current symptoms

She describes pain mainly in the index finder of the right hand. She states that she gets a throbbing, "stinging" type of pain. She states that it is like electricity running through her hands. She states that there is intermittent discolouration of the palms and "they turn blue". She has radial sided wrist pain with swelling of the hands and forearms. She states that putting her hand in a bucket full of iced water relives the pain.

She states that she gets swelling and throbbing pain in her hands with minimal activity, especially to the right index and middle fingers. She states that she gets fatigued quite easily. Minimal typing and driving aggravate her condition.

Examination

There was altered sensation to all the fingers except the ring fingers. She had decreased range of motion on active and passive movements. Movement reproduced her pain. She could not grip. There was no obvious swelling or discolouration of the skin.

Conclusion and opinion

Ms Thurairajah is a 35 years old female who works as a senior procurement specialist for Sydney Water. She has an undiagnosed condition of the hands, which is causing her pain, swelling and discolouration of the skin. She is due to see a rheumatologist.

After reviewing the inherent requirements of her job, I believe that she would be unfit to return to this position temporarily. She needs the advice of a rheumatologist regarding further investigation and/or management. When a clearer diagnosis has been made, then classification regarding prognosis and future return-to-work may be made.

In the meantime, I recommend that she would be unsafe to drive. She should not do any repetitive activities with the hands, especially the right hand. She should not perform any duties which require any firm gripping with the hands. She should not do any keying."

86 A Hand Therapist, Christine Morel, in a report from an assessment of the Respondent on 22 October 2009 stated that the Respondent told her that June/July 2009 she noticed swelling in her right hand and pain migrating to her right shoulder. " She advised that when her right upper limb was compressed it was very painful. She advised that she had a high volume of typing during this time which flared up her condition. "

THE PERIOD 4 AUGUST 2009 TO 22 DECEMBER 2009

87 Particulars 1.9 to 1.15 in the Application relate to this period. They are supported by the evidence in the applicant's case. In her Reply to the Application the Respondent did not dispute any of them.

88 During this period the Respondent was on sick leave from Sydney Water. It was clear from her cross-examination that she considered that if she was on "sick leave" or she had "closed the office" or her office was "officially closed from the Friday before Christmas 2008 then till the Monday after the school holidays", that she regarded that as excusing her from any responsibility to facilitate the audit. But that is obviously not so.

89 During this period from 4 August 2009 to 22 December 2009 the Respondent continued to have treatment from hand therapist, as required.

90 Certainly by 4 August her condition had worsened since the injury in December 2008 and she was unfit at times to perform some of the duties required of her in her position with Sydney Water, particularly keyboard work. But from 4 August when she ceased attending work at Sydney Water, until December 23 when she was found to be fit to return to her normal hours of work with Sydney Water, but subject to the conditions of a Return to Work Programme, her condition improved.

What is the relevant conduct established?

91 Ms Bedggood telephoned and left messages at the Respondent's listed telephone numbers for the Respondent to contact her to arrange a suitable time for the conduct of the audit. Those calls occurred on 24 and 26 August 2009, and 1 and 3 September 2009. The Respondent did not return those calls.

92 Then there was a telephone call by Ms Bedggood on 7 September 2009 when she left another message. That was the fifth call. Later there was a message left on Ms Bedggood's voice mail by the Respondent saying that she had been on sick leave since the start of August. She said she would telephone Ms Bedggood the following day. She did call the following day and left a message for Ms Bedggood that she was still on sick leave until the end of the week and she would telephone again on 10 September. She did not do that.

93 Ms Bedggood telephoned the Respondent on 11 September and left a voice-mail message asking her to return the call. The Respondent did not return the call.

94 On 16 September Ms Bedggood left a voice-mail message on the Respondent's mobile telephone asking her to return the call . The Respondent did not return the call.

95 On 17 September the Respondent sent a facsimile to Ms Bedggood stating that, "Due to unavoidable circumstances and prior commitments" she was unable to address Ms Bedggood's call. She said in the facsimile that she would be "on leave from 21 September to 16 October" and would contact Ms Bedggood upon her return to arrange a mutually convenient time to meet. She did not do that.

96 On 21, 23 and 26 October and on 26 November Ms Bedggood telephoned the Respondent on her practice telephone number and left a message each time asking the Respondent to call her to make arrangements for the audit. Ms Bedggood also telephoned the respondent's mobile telephone number on those occasions. It was unanswered, but a message could not be left as the voicemail mailbox was full. The Respondent did not return any of those calls.

97 Ms Bedggood sent the Respondent a letter dated 1 December 2009 notifying her that she would attend the Respondent's home (at which the Respondent's office was then located) to conduct the audit of the practice on 18 January 2010. The letter was sent by registered post, by facsimile and e-mail. A voice-message was also left on the Respondent's office telephone number advising of the audit date.

98 By a letter to the Legal Services Commissioner on 18 December 2009 the Respondent said she would not make herself available for the audit to take place on 18 January 2010 and she would not be available till March or April 2010.

99 We conclude that in the period from 4 August 2009 to 22 December 2009 the Respondent obstructed or mislead ( in the extended meaning in section 674 of the Act) the investigator, Ms Bedggood, in that:

She delayed the investigator, Ms Bedggood, by not contacting Ms Bedggood as requested in telephone messages on 24 & 26 August and 1 & 3 September;

She delayed the investigator by failing to speak to Ms Bedggood on 8 September as she had said she would in a phone message the previous day;

She delayed the investigator by telling her in a phone message that she would phone her again on 10 September, but failing to do so;

She delayed the investigator by failing to telephone her in response to a telephone message of 11 September;

By her facsimile message of 17 September she delayed the investigator for about a month;

By that message she attempted to mislead the investigator by saying that "due to unavoidable circumstances and prior commitments" she was unable to respond to the investigator's call ;

She delayed the investigator by failing to telephone Ms Bedggood as she had said in the facsimile she would do after 16 October;

She delayed the investigator by failing to act upon the investigator's letter of 28 September and failing to return phone calls of 21, 23, and 26 October 2009;

She delayed the investigator by failing to return a phone call of 27 November 2009;

She delayed the Investigator by delaying her reply to the letter of 1 December 2009, which she received that day by facsimile, until 17 Days later; and

She delayed the investigator by, in her letter of 18 December, declining to be available on 18 January for the audit to take place and declining to be available until April or May.

What did the Respondent say about her reasons for not complying with the requests from the Legal Services Commissioner and Ms Bedggood in this period?

100 The Respondent on 7 September 2009 telephoned Mr Collins of the Professional Standards Division of NSW Law Society. She told him that she had been on sick leave since 4 August and would be until the end of the week. She gave him her mobile phone number and said it was best if a text message was sent before phoning. He urged her to remain in contact with the Office of the Legal Services Commissioner. Mr Collins conveyed that information to Ms Bedggood. On Wednesday 9 September 2009 the Respondent telephoned the Office of the Legal Services Commissioner and left a messages for Ms Bedggood that she was on sick leave and would be until the end of the week.

101 On 17 September the Respondent wrote to Ms Bedggood by fax and said in that letter,

I regret due to unavoidable circumstance and prior commitments, I have been unable to address your call. I am on leave from the 21 September 2009 up to the 16 October 2009. I will contact you on my return to arrange a mutually convenient time to meet.

102 She testified in an affidavit that she was diagnosed in October 2009 as suffering from Complex Regional Pain Syndrome.

103 In the Respondent's letter to the Legal Services Commissioner of 18 December, in response to his letter of 1 December 2009, she said that the reasons she was not going to make herself available for the audit on 18 January or at any time before March/April 2010 were:

" Unfortunately I have had to extend my leave due to medical reasons. "

"At this stage, my health, wellbeing and the prevention of permanent disability is (sic) of paramount consideration to me"; and

"Further, this office is closed and due to reopen on Monday 1 February 2010 in line with our normal practice";

104 In her 2 affidavits the Respondent did not give direct evidence of any relevant effects of her hand problems that she experienced in the period 4 August 2009 to 22 December 2009. But she set out under a heading "Holiday Closure" evidence that she usually closed the law practice from the Friday before Christmas and did not reopen until the last week of January or the first week of February in the following year "in line with school holidays" .

105 The respondent said in her affidavit of 20 October 2010 that she was diagnosed with Complex Regional Pain Syndrome in October 2009. Dr Sari Kannangara, a Consultant Physician - Rheumatology and Sports Medicine diagnosed the Respondent was suffering Complex Regional Pain Syndrome. That was on 21 August 2009. But the only report or medical record the Respondent relied upon from that doctor was a report of 17 September 2010, long after the Respondent had returned to normal duties with Sydney Water, and apparently obtained for the purpose of these proceedings. That report was annexed to her affidavit of 20 October 2010, but the evidence did not disclose whether the doctor was asked the same questions that the Respondent directed at 2 Neurologists about the likely effects she would experience from her hand problems.

What is the medical evidence of relevant effects of her hand problems for this period?

106 The Respondent's case included evidence from two neurologists: Dr Lorentz and Dr Mellick. Neither of these Specialists saw the Respondent prior to July 2011. The only occasion that Dr Mellick saw her was 26 July 2011 for the purposes of his report and the only occasion that Dr Lorentz saw her was 12 July 2011 for the purpose of his report.

107 In her letter to each of the neurologists, the relevant question asked of each of the doctors was:

3. Given the above facts would CRPS have created any harm, impediments or difficulties for Ms H. Thurairajah between May 2009 and June 2010 in carrying out the following duties as a sole legal practitioner:

a) replying to communications, both telephone and written;

b) retrieving files from an external storage facility;

c) analysing files;

d) making written submissions to an external agency in relation to the carriage and conduct of the legal practice;

e) face to face interaction for periods of up to a day's duration with an auditor from an external agency.

108 Both of the neurologists responded in the affirmative to each of those paragraphs. Unfortunately neither doctor was asked to give an opinion as to the nature and extent of any effects she would suffer from her condition if she performed at a particular time any of the specific activities the Legal Services Commissioner had requested of her. Neither opined whether the Respondent's condition would for the whole of that period have caused any specific "harm, impediments or difficulties" for the respondent in relation to any of those nominated activities.

109 They did not say that at any time any of such activities would be prevented by her condition. They did not give any evidence of the specific "harm, impediments or difficulties" they would have expected the Respondent to have experienced at a particular time had she undertaken one of the specific activities requested of her by the Legal Services Commissioner.

110 They did not give an opinion, for example, as to he effects of her condition by January 2009, after she had been on sick leave for 5 months. They were not asked to give any opinion as to what harm, pain, impediments or difficulties she would experience if she communicated by telephone with Ms Bedggood to arrange the date for the audit if a friend, relative or neighbour dialled the number for her and held the handpiece for her or she used a phone on "speaker" mode to avoid having to hold the handpiece.

111 They were not asked to give any opinion as to what harm, pain, impediments or difficulties she would experience if she was present at her home when the audit was conducted and participated in the conversations and supervision that the office of the Legal Services Commissioner had requested.

112 In relation to the requests for her to telephone the office of the Legal Services Commissioner, the evidence of Dr Mellick in his report said that:

I regard Chronic Regional Pain Syndrome to have been sufficient reason and of sufficient severity to impair Ms Thurairajah's capacity to reply to communications, both telephone and written, because of the impaired dominant right hand and other more proximal symptoms.

113 He did not say that impairment would have applied for the whole of the period. Dr Lorentz in his report responded to the question with a mere "Yes", not distinguishing between "harm, impediments or difficulties", and not distinguishing between telephone and written communications.

114 Clearly there were occasions during the period when the Respondent used the telephone to communicate with the office of the Legal Services Commissioner or to leave a message with that office. Clearly she was not prevented from such activity, although she may have incurred some pain. But the Respondent did not give any evidence of any pain or other harm or other difficulties she experienced in making telephone calls at any time. Nor did she make any complaint to the Legal Services Commission or any of his staff of any "harm, impediments or difficulties" she was experiencing in telephoning his office, as she did many times.

115 In her second affidavit she again made the allegation that she was diagnosed with Complex Regional Pain Syndrome in October 2009. Annexed to the affidavit is a copy of a report by Dr Sari Kannangara, a Consultant Physician - Rheumatology and Sports Medicine. That report is dated 21 October 2010 and confirms that the doctor on 17 September 2009 diagnosed the Respondent suffering "Complex Regional Pain Syndrome (CRPS) as a result of the repeated use of her right hand which she had injured in 2008".

116 There was no evidence given by Dr Kannangara in the proceedings and it appears that the Respondent did not ask him to provide evidence of the type she requested from the two neurologists.

117 Dr Ahmed Saafan, an Occupational Health Specialist, saw the Respondent in October 2009 and prepared a report for Sydney water on 8 October 2009. In his report he said of the Respondent's description of her current symptoms:

She describes pain mainly in the index finger of the right hand. She states that she gets a throbbing, 'stinging' type of pain. She states that it is like electricity running through her hands. She states that there is intermittent discolouration of the palms and 'they turn blue'. She has radial sided wrist pain with swelling of the hands and forearms. She states that putting her hand in a bucket of iced water relives the pain.

She states that she gets swelling and throbbing pain in her hands with minimal activity, especially to the right index and middle fingers. She states that she gets fatigued quite easily. Minimal typing and driving aggravate her condition.

118 Dr Saafan noted that the Respondent was to see a rheumatologist. He said that he needed the advice from a rheumatologist regarding further investigation and/or management. He said that when a clear diagnosis was made then classification regarding prognosis and future return to work could be made. He said:

In the meantime, I recommend that she would be unsafe to drive. She should not do any repetitive activities with the hands, especially the right hand. She should not perform any duties which require any firm gripping with the hands. She should not do any keying.

119 Christine Morel, the Occupational Therapist/Hand Therapist, assessed the Respondent on 22 October 2009 and noted in her report:

She advised that she cannot open doorknobs with her right hand due to the pressure required. She advised that she finds it difficult to carry things in her right hand. She advised that her current pain level at rest is 4-5/10 where 0 = no pain and 10 = the most unbearable pain.

120 Ms Sophia Papadopolous, a Rehabilitation Consultant, prepared a report of 3 December 2009 for the workers' compensation insurer. She reported that the Respondent reported right wrist pain during the performance of her work tasks. Ms Papadopoulos said that the Respondent said " that she occasionally takes Panadol medication for symptom management only when her pain is significant, and also submerses her right upper limb in cold water when needed. "

121 She also reported:

Ms. Thwrairajah advised her current pain levels in her right wrist/ hand is 4/10 (i.e. on a scale of 1-10, where 1 = least amount of pain and 10 = most severe amount of pain) in resting. She described the pain as a slight pulling/ throbbing/ dull pain in the right index finger. She reported that during aggravating movements (ie. Pronation/ supination, gripping, all finger movements etc) her pain will increase to a 5/10 describing the pain as a throbbing/ burning / electricity pain in the index and 3 rd digits which refers up into the right shoulder. Ms. Thwrairajah rated her initial pain levels (i.e. following the incident) in her right wrist / hand at 8/10 describing the pain as a severe throbbing/ pulling/ burning/ electricity pain presenting the 2 nd and 3 rd digits referring into the entire upper limb up to the right shoulder.

Upon a brief physical screening (i.e. on 01.12.09), Ms. Thwrairajah demonstrated full range of motion in all right wrist and finger movements, such as digits 1-5 flexion/ extension, right wrist flexion / extension, right wrist radial / ulnar deviation and right hand thumb opposition. She noted some electricity / pulling sensations with most range of movements; especially thumb opposition, finger/ wrist flexion and wrist extension. Ms. Thwrairajah further had a noted significant reduction in grip strength in her right dominant, affected upper limb when compared with her non dominant, non affected left upper limb.

The physical tolerances as indicated by Ms. Thwrairajah are listed below:

(Please note that the following tolerances were reported by Ms. Thwrairajah at the time of the initial rehabilitation assessment and have not been formally assessed unless indicated otherwise).

Lilting: Has been advised by her NTD not to lift anything with her right upper 1mb. Ms. Thwrairajah reported she has not attempted any heavy lifting since the date of her injury with her right upper limb. Reported that she has only attempted to lift approximately 1kg with her left non-affected upper limb.

Activities of daily living: Ms. Thwrairajah advised that she is currently independent with most activities of daily living such as eating, grooming, dressing / undressing and showering tasks. She informed that she compensates by predominately utilising her left non-dominant hand to complete majority of the tasks and finds it especially difficult when cutting her food. She informed that since her date of injury her mother has had to cut her food for her.

Mobility: Not affected by this injury. No limitations noted.

Reaching: Not affected by this injury. No limitations noted.

Gripping/Fine motor: Reported a significant decrease in grip strength in her right dominant. affected upper limb as opposed to her left non dominant, non-affected upper limb.

Standing: Not affected by this injury. No limitations noted.

Walking; Not affected by this injury. No limitations noted.

Sitting; Not affected by this injury. Demonstrated a good sitting posture during the initial assessment

Driving: Reported that she is independent with driving her automatic power steering vehicle with no problems noted and advised that she mainly steers with her left non dominant upper limb and stabilizes the wheel with her right upper limb. She advised that initially she was not driving due to feedback from Dr Saafan (IMC) indicating she would be unsafe to drive; however is at present reportedly able to drive short distances with no problems noted.

Crouching/ bending: Not affected by this injury. Not affected by this injury.

Squatting: Not affected by this injury. Not affected by this injury.

Climbing/ Stairs: Not affected by this injury. Not affected by this injury.

Kneeling: Not affected by this injury. Not affected by this injury.

Sleeping: Reported that she s currently independent with all sleeping tasks. She advised that at present she is able to achieve a normal 7-8 hours of sleep per night and that she is not awakened by pain throughout the night. She further advised that she no longer needs to utilise pillows whilst sleeping to keep the right upper limb level, and informed that she is not dependent on medication to assist with falling asleep each night.

Pushing Pulling: Reported being independent with pushing a shopping trolley and advised that she is able to manage with pushing bilaterally when directing straight. However when steering the trolley requires to only use her left non dominant, non affected upper limb.

122 It is important to note that although the respondent's condition had deteriorated from December 2008 to 3 August 2009, she did not attend her work at all in the period of nearly 5 months from 4 August till 23 December 2009 and her problems with her hands had resolved so much by 23 December 2009 that she was considered fit to return to work on a Return to Work program designed to gradually restore her to all her former duties. Indeed her oral evidence, which we accept, is that the details of the Return to Work arrangements were not finalised till 18 January and that was when she resumed, after more than 5 months off work.

PERIOD FROM 23 DECEMBER 2009 TO 16 JUNE 2010

123 This was the period from when the Respondent was considered suitable to return to work under a Return to Work Program until 16 June 2010 when Legal Services Commissioner signed the application to commence these proceedings. That was one week before the respondent was released from the Return to Work Program to resume normal duties in her employment. It is the period covered by particulars 1.17 to 1.25 of the Application. The evidence in the Applicant's case establishes those matters.

What is the relevant conduct established?

124 The evidence establishes that on 11 January 2010 Ms Bedggood telephoned the Respondent and confirmed the arrival time for audit on 18 January. The Respondent said to Ms Bedggood, "I have sent a letter to your office which outlines my medical condition and to advise that my office will be closed until 1 February. I sent it in mid-December." The Legal Services Commissioner did not receive that letter (dated 18 December 2009) until later on 11 January 2010. The letter purports that a copy was sent to Mr Ray Collins at the Law Society, but the evidence does not disclose whether he received it and, if so, when.

125 In her affidavit of 20 October 2010 the Respondent attached a copy of the letter dated 18 December 2009 addressed to the Legal Services Commissioner. It referred to the letter of 1 December 2009 and sought to have the audit deferred until March or April 2010 because:

"Unfortunately I have had to extend my leave because of medical reasons";

"At this stage, my health, wellbeing and the prevention of permanent disability is of paramount consideration to me;" and

"Further, this office is closed and due to reopen on Monday 1 February 2010 inline with our normal practice."

126 The Respondent said in the letter, "For the reasons mentioned above, unfortunately, I do not believe I can facilitate the Practice Review in person as scheduled on the 18 January 2010."

127 The advice of Sophia Papadopoulos, the Rehabilitation Consultant at 4 December 2009 was that it was reasonable to believe that the Respondent would return to her pre-injury status at her position at Sydney Water. She estimated the time frame as "1-2 months". She did not anticipate that any long term restrictions would be applicable.

128 On 7 December 2009 Dr Kannangara, the Consultant Physician/ Rheumatology and Sports Medicine, endorsed those recommendations, "I have no objections".

129 In a telephone conversation with the Respondent on 11 January 2010 Ms Bedggood asked the Respondent to describe her "medical condition". The evidence is that the Respondent said:

"I have a condition which means that I am loosing control of my right hand. It is getting worse and I am not allowed to get stressed as it makes it worse. I do not have a medical certificate as I am my own boss and I don't need one. I will be on sick leave until the end of April but I am hoping to open my office at the beginning of February", and, "I have another assessment at the end of January to determine how much longer I am required to be on sick leave."

130 We find that this conversation occurred when the Respondent had not attended her work at Sydney Water for more than five months and had in December been found to be suitable to return to work on a Return to Work Program. She did so seven days after the conversation. Accordinlgly, the description by the Respondent of her condition to Ms Bedggood was untrue and misleading. We find that it was intended to mislead Ms Bedggood.

131 We also find that her statement that she did not have a medical certificate was also untrue and misleading and intended by the Respondent to mislead Ms Bedggood.

132 We further find that the statement that she was having an assessment "at the end of January to determine how much longer I am required to be on sick leave" was untrue because she had already been determined as suitable to return to work on a Return to Work Program and the statement was misleading. We find that by each of these misrepresentations the Respondent intended to mislead Ms Bedggood.

133 Suitable duties for the Respondent's Return to Work Program at Sydney Water were not agreed upon until January 2010 and then the Respondent returned to work under the Return to Work Program on 18 January 2010.

134 On 22 January 2010 the Legal Services Commissioner wrote to the respondent and in that letter stated:

"Due to your unnecessary unwarranted delays in contacting my office and your inadequate and inconsistent responses to correspondence and telephone messages, I have initiated a complaint about you pursuant to Section 504 of the Legal Profession Act, 2004 ("the Act"). A copy of the complaint is enclosed.

As commissioner I have determined that I am satisfied that there is sufficient evidence to create a reasonable likelihood of a finding of unsatisfactory professional conduct or professional misconduct in relation to your conduct should the matter be brought before the Legal Services Division of The Administrative Decisions Tribunal.

You were notified of this Officer's intention to conduct a Practice Review of your office on 8 May 2009. You have ignored this Officer's numerous attempts to contact you in relation to the Practice Review and complaints made about you, without reasonable excuse."

135 The letter set out various relevant provisions of the Legal Profession Act and sought the Respondent's submissions in relation to his determination that there was sufficient evidence to create a reasonable likelihood of a finding of unsatisfactory professional conduct or professional misconduct and that proceedings should be taken. The letter was sent to the Respondent by facsimile, Australia Post and registered post. Service by e-mail and personal service were attempted, but were not successful. The Respondent replied by a letter of 19 February 2010, 28 days later. She said in that letter:

"I refer to your letter facsimile dated 25 January 2010. I must say I am somewhat disappointed with your latest correspondence and complaint. Your allegations therein are denied.

"As discussed with Ms Bedggood in January 2 010, I confirmed I have been diagnosed with Complex Regional Pain Syndrome. It is normal practice fo r persons diagnosed with a medical condition to take sick leave. I do not believe it is appropriate for y ou to harass me in this manner whilst I am on sick leave. As requested, a certificate of sickness confirming the same is enclosed.

"In so far as the complaints are concerned, I sincerely apologise, however in accordance with my previous correspondence, it is not possible for m e to address the same until my return to work. Nor do I believe it is appropriate for you to request a reply whilst I am on sick leave.

"In relation to the matter of Galea, I am n ot aware of any letter dated I September 2009 and note that y our letters dated 20 November 2009 and 26 November 2009 make no reference to the same. My reply dated 11 December 2009 is self-explanatory. Please provide a copy of the letter dated I September 2009 and I shall address the same or my return.

"In relation to the matter of Totic, I am not aware of any letters dated 31 July 2009 and 1 September 2009. Please provide a copy of the letters dated 31 July 2009 and 1 September 2009 and I shall address the same on my return.

"As previously indicated, I have no objections to a Practice Review and as duly acknowledged by Ms Bedggood, I note I have complied with your prior request for Practice Review. Unfortunately, I am unable to facilitate th e same at present and can only facilitate th e same on my return to work. I n this context, as previously indicated, I w ill contact Ms. Bedggood on my return to convene a m utually convenient time."

136 With her letter of 19 February 2010 the Respondent provided a copy of a certificate of sickness from her general practitioner dated 10 February 2010 which stated that "She has been on sick leave since August 2009 and has progressed to suitable duties with the assistance of a hand therapist. It is anticipated that she should return to normal duties by April 2010."

137 It did not disclose that she had been found in December to be suitable to return to work on a Return to Work Program. She did not disclose that she had returned to full time work with Sydney Water on that program on 18 January. The use of the certificate in that way by the Respondent in a context where she had not disclosed the other information was misleading. We find that she intended by that conduct to mislead Ms Bedggood. Ms Bedggood was misled. As a result she wrote to the Respondent on 26 February 2010 advising that she would not be expected to provide any further submissions until April 2010 and Ms Bedggood would contact her at that time. By misleading Ms Bedggood, the Respondent delayed the investigation until April.

138 Ms Bedggood left telephone messages on the practice telephone and the Respondent's personal mobile phone on 12 April, 19 April, 20 April and 22 April 2010, requesting the Respondent to return the call. The Respondent did not return any of those calls.

139 On 27 April 2010 Ms Bedggood wrote to the Respondent and in that letter she said:

"I again note that the doctor's certificate that you provided with your letter of 19 February 2010 statement that you should return to normal duties by April 2010. Accordingly, I have no reason to believe that you are still on sick leave and I now ask that you provide submissions in relation to this complaint as requested in my letter of 22 January 2010 (copy enclosed) by 12 May 2010. I also ask that you provide your availability for a two day Practice Review as discussed and agreed some time ago."

140 The Respondent did not reply to that letter.

141 On 17 May 2010, further telephone messages were left on the Respondent's practice and personal mobile telephone numbers requesting her to telephone Ms Bedggood. The Respondent did not return those calls.

142 We conclude that in the period from 23 December 2009 to 16 June 2010 the Respondent obstructed or mislead (in the extended meaning in section 674 of the Act) the investigator, Ms Bedggood, in that:

In her letter of 19 February she intentionally mislead the investigator by

(a) not disclosing she had been attending full time employment at Sydney Water since 18 January on a Return to Work Program; and

(b) purporting by the statement in the medical certificate that she was still on sick leave, when that was untrue;

She delayed the investigator by misleading her by the letter of 19 February resulting in the investigator extending the time for the Respondent to answer the letter of 22 January until April 2010;

She delayed the investigator by failing to return her telephone calls as requested in recorded messages on 12,19,20 and 22 April 2010;

She delayed the investigator by not responding to the Investigator's letter of 27 April 2010; and

She delayed the investigator by failing to return her telephone calls as requested in recorded messages on 17 May.

What did the Respondent say about her reasons for not complying with the requests from the Legal Services Commissioner and Ms Bedggood in this period?

143 In her letter of 18 December 2009 to the Commissioner the Respondent did not disclose that she had Complex Regional Pain Syndrome or any effects of her condition. She merely said her reasons for not co-operating with the Commissioner was that she had she was on extended leave because of medical reasons and her office was closed till 1 February for her summer break. Her letter to the Commissioner of 19 February 2010 disclosed that she had Complex Regional Pain Syndrome, but did not disclose any effects of that. Nor did the sickness Certificate that accompanied that letter.

144 By the time of her telephone conversation with Ms Bedggod on 11 January 2010, she had not worked for more than 5 months. Her condition had improved. She said that she was losing control of her right hand, that the condition was getting worse, and that she would be on sick leave till the end of April, all of which were false.

145 In her affidavit of 20 October 2010 she gave no direct evidence of the effects she experienced from her hand problems in the period 23 December 2009 to 16 June 2010. Nor did she in her affidavit of 21 July 2011.

What is the medical evidence of relevant effects of her hand problems for this period?

146 On 17 February 2010 in a Workcover Certificate Dr Balakrishnan, the Respondent's general practitioner, certified that subject to limiting her activities within the pain-free range for her hands, she was fit for pre-injury hours per day, five days per week. He recommended she not engage in any repetitive lifting, typing be !5 minutes on/ 15 minutes off for the period to 21 February and then 30 minutes on and 10 minutes off until 28 February, then 45 minutes on and 10 minutes off to 7 March 2010 and then 60 minutes on and 10 minutes off until 14 March 2010.

147 In his report of 14 December 2011 to the Respondent he set out the restrictions that applied during the Return to Work Program period from 23 December 2009 to 23 June 2010, which are:

23/12/09-17/02/10 - limit activities to pain free range

- Lifting up to 200g and no repetitive lifting

- SW to provide appropriate keyboard, mouse and pen support

- SW to provide appropriate VRS support

- Typing and mouse work: 15 minutes on / 15 minutes off (x 4 to total 60 minutes) followed by 30 minutes completely off and repeat.

17/02/10-04/05/10 - Limit activities to pain free range

- Lifting up to 1kg with right hand and no repetitive lifting

- Typing and mouse work: 15 minutes on / 15 minutes off (x 4 to total 60 minutes) followed by 30 minutes off

- Upgrades in return to work plan be in consideration with pain threshold

17/02/10-21/01/10:

- Ms HT was required to complete pre-injury procurement specialists duties for period of up to 15 minutes at a time / 15 minutes off (x 4 to total 60 minutes) alternated with use of the VRS for period of 30 minutes

22/02/10-28/01/10:

Ms HT was required to complete pre-injury senior procurement specialist duties for period of up to 30 minutes at a time alternated with VRS for period of 10 minutes

01/01/10-07/03/10:

- Ms HT was required to complete pre-injury senior procurement specialist duties for periods up to 45 minutes with a 10 minutes break on an hourly basis.

08/03/10-14/03/10:

- Ms HT was required to complete pre-injury senior procurement specialist duties for periods up to 60 minutes at a time with 10 minutes break on an hourly basis.

15/03/10-28/03/10:

- Ms HT was required to complete pre-injury senior procurement specialist duties for periods up to 90 minutes at a time with a 10 minutes break on an hourly basis.

29/03/10-04/05/10:

- Ms HT was required to complete pre-injury senior procurement specialist duties for periods up to 2 hours at a time with a 10 minute break on an hourly basis alternated with VRS as required.

- Ms HT was to avoid excessive workload to allow for new technique.

- Work within manageable pain levels

- Pause breaks every 20-30 mins

05/05/10-23/06/10 - Work within manageable pain level

- To avoid excessive workload to allow for learning new techniques

- 10 minutes break every 2 hours

- Pause break every 20-30 mins

05/05/10-23/06/10:

Ms HT was required to complete trial of pre injury senior procurement specialist duties alternated with the use of VRS as required.

148 On 23 June 2010 the Respondent was released from the Return to Work Program and returned to her normal duties with Sydney Water, subject to a self-management regime intended to avoid any over-use of her right hand and consequent relapse.

REASONABLE EXCUSE

149 The meaning of "reasonable excuse" in section 674 of the Act is not defined. It is, however, an expression used in other legislation and has been the subject of interpretation by the courts. In the High Court decision of Taikato v R (1996) 186 CLR 454 [1996] HCA 28 , the majority (Brennan CJ, Toohey, McHugh and Gummow JJ) said that although the expression "reasonable excuse" has been used in many statutes and has been the subject of many reported decisions, " decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case, but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception. "

150 In that decision the legislative provision was intended to protect the public by prohibiting possession of certain articles. Their honours held that the purpose of self defence for possession of a prohibited article (a pressurised canister of formaldehyde) was not a reasonable excuse because there was no perceived threat, immediate or otherwise, of attack at the time of possession.

151 In criminal proceedings where there is such a defence available, it might be argued that the expression "reasonable excuse" should be given wide interpretation, particularly if the liberty of the accused would be at risk.

152 One purpose of section 674 of the Act is to deter persons from obstructing or misleading an investigator and ultimately to avoid investigations being obstructed or frustrated. It also has purposes of protecting the public and the reputation of the profession. It is also intended to punish offenders by creating a criminal offence, but these are not such proceedings.

153 In Legal Services Commissioner v Tsolakis [2000] NSWADT 21) 8 March 2000) the Respondent was alleged to have failed to comply with a Notice under Section 152 of the Legal Profession Act 1987. The Tribunal decided that "reasonable Excuse' should be given their "normal meaning". The Respondent had received notice of a complaint by a client in February 1998. He was in Nepal from 27 March to 20 April. On 21 May the Legal Services Commissioner wrote to the Respondent asking for a reply to an earlier letter of 2 April. The Respondent on 29 May requested a copy of that earlier letter and further details. They were provided on 10 June. On 7 July he asked for a further 14 days. He separated from his wife and left home in October. Another request for the information was made on 2 November, but he didn't reply. The Notice was served on 15 December requiring the information by 15 January 1999. On 15 January1999 he sought and was granted an extension of time to 29 January. Then by letter of 18 February he was required to answer by 12 March. He did not reply and the proceedings were commenced on 26 March 1999.

154 The Tribunal held that the excuses offered were:

The solicitor didn't like the client;

The solicitor thought the complaint was unjustified;

There were many pressures from his growing practice;

He was demoralised by the estrangement from his wife; and

he was busy not just in the practice, but also sitting on various committees.

155 The Tribunal found that the excuses did not constitute a reasonable excuse.

156 The Australian Concise Oxford Dictionary has various meanings for "excuse" but the most appropriate is " a reason put forth to justify the offence, fault, etc ". "Reasonable" is defined as including "having sound judgment" "moderate" and "in accordance with reason".

157 In this matter in para 142 we found the Respondent by her letter of 19 February intentionally misled the investigator. She has not offered any excuse for that. That is a serious matter and reflects badly on her integrity.

158 There is no excuse offered for her conduct of delaying the investigator by her facsimile message of 17 September 2009.

159 The excuse the Respondent offered for some of her conduct that she was on sick leave, was not of itself a reasonable excuse. Nor was the excuse that her office was closed; whether because of public holidays or a habit of closing for a particular period in the summer. As excuses those matters were not proportionate to the serious purpose section 674, particularly its roles in protection of the public and the reputation of the profession. Those excuses were not reasonable.

160 The only other excuse offered for the delaying conduct we have found was contrary to the section is that she had problems with her right hand-initially from an injury, but later from use of keyboards at work it worsened and it was diagnosed 10 months after the injury that she had developed Chronic Regional Pain Syndrome. We find that the evidence does not establish that at any time she was prevented by her problems with her hands from doing any of the things the Commissioner required of her by the notice of 8 May 2009. She was never unable to telephone Ms Bedggood and arrange a date for the Audit. She was not unable to have attended that audit and carried out the roles that the letter proposed.

161 Given her conduct and dishonesty, we do not accept that at any time she was concerned to implement the audit as soon as reasonably practicable or recognised how serious the requirements of the Commissioner were in relation to her career as a lawyer.

162 The question then is what adverse effects she would have risked if she had made such a telephone call and participated in the audit as requested. Given the option of having a friend, relative or neighbour assist her with dialling the number, and using speaker mode or a friend to hold the handpiece for her, then what pain, discomfort, expense, impediment or harm would she have suffered? There is no evidence that answers that question.

163 There is precious little evidence going to the question of what pain, discomfort, expense, impediment or harm would she have suffered if she had attended for the Audit and done the things proposed by the Commissioner. For the period 8 May to 20 June 2009 she was still in full time work with Sydney Water, and did not go on sick leave until 4 August, and even then the medical evidence was that she was unfit for keyboard duties; not generally. We find for the period 8 May to 20 June 2009 that the Respondent has not established any reasonable excuse.

164 Then for the period from 8 August to 22 December the Respondent was on sick leave from Sydney Water, not performing any keyboard work or repetitive hand activity, and not lifting any weights greater than the limit set by her medical advisers. She was continuing hand therapy. Her hand problems were gradually resolving in that period until in early December she was fit to return to full time work with the restrictions of the Return to Work Program.

165 The remaining conduct in that period that we found offended the section comprises failing to make telephone contact with Ms Bedggood (between August 24 and November 27) to organise the date for the audit, delaying her reply to the letter of 1 December 2009 for 17 Days, and by her letter of 18 December declining to be available until April or May. What pain, discomfort, expense, impediment or harm would she have suffered if she had in that period of August 24 to December 18 returned a phone call and attended the Audit to do as the Commissioner asked? The evidence does not establish that her Complex Regional Pain Syndrome was a reasonable excuse for her conduct on those occasions.

166 Finally there is the period from 23 December 2009 to 16 June 2010. The conduct we found had offended the section is at para 142. The first 2 items have already been discussed above. The remaining items are all about her conduct in the period from 12 April 2010 to 17 May of failing to return telephone calls and failing to respond to a letter. By 12 April the Respondent had completed 5 months of sick leave and 3 months of the Return to Work Program. What pain, discomfort, expense, impediment or harm would she have suffered if she had in that period of April/May returned a phone call or telephoned Ms Bedggood in response to the letter? The evidence does not establish that her Complex Regional Pain Syndrome was a reasonable excuse for her conduct on those occasions.

167 The Respondent has not established a reasonable excuse for any of the conduct we have found obstructed or misled the investigator.

"UNSATISFACTORY PROFESSIONAL CONDUCT" AND "PROFESSIONAL MISCONDUCT"

168 Sections 496, 497 and 498 of the Legal Profession Act 2004 provide:

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 .

497 Professional misconduct

(1) For the purposes of this Act:

"professional misconduct" includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner , where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice .

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

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.

CONCLUSIONS

169 The conduct by which the Respondent misled the investigator was dishonest. That conduct and the other conduct that delayed the investigation comprised a pattern of behaviour intended to delay, obstruct or prevent the proposed investigation. The Respondent's conduct displayed contempt for the investigator, the Legal Services Commissioner and the investigation process. It was for a legal practitioner, disgraceful and dishonourable conduct.

170 Such conduct is not merely unsatisfactory professional conduct; it constitutes professional misconduct. Under subsection 562(7) of the Act the maximum fine for professional misconduct is $75,000.00.

171 The appropriate outcome, recognising the need for an appropriate sanction for such conduct and the needs to protect the public from such conduct and protect the reputation of the profession from the damage that such conduct can cause, is for a finding of professional misconduct, a public reprimand and a fine of $5,000.

COSTS

172 The Respondent has engaged in professional misconduct. There is no evidence of exceptional circumstances that would justify an exception to the general rule that a legal practitioner who is found to have engaged in professional misconduct should pay the costs of the applicant (see section 566 of the Act).

 

Decision last updated: 07 December 2011