Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Legal Services Commissioner v Bryden and Hagipantelis (No 3) [2012] NSWADT 225
• Hearing dates: 24 August 2012
• Decision date: 01 November 2012
• Jurisdiction: Legal Services Division
• Before: Deputy President, D Patten; Naida Isenberg, Judicial Member; E Hayes, Non-Judicial Member

Decision

Each Respondent is found guilty of Professional Misconduct.

Each Respondent is reprimanded.

Each Respondent to pay a fine of $48,000.

The Respondents are to pay the Applicant's costs.

• Catchwords: Alleged breach of Advertising Regulations - clear breach - no exception or defence proved - Professional Misconduct
• Legislation Cited: Legal Profession Act 2004; Legal Profession Regulation 2002
• Cases Cited: Legal Services Commissioner v Keddie [2008] NSW ADT 185; Legal Services Commissioner v Malouf [2007] NSW ADT 215
• Category: Principal judgment
• Parties: Legal Services Commissioner (Applicant); Robert Stanley Bryden (Respondent); Bandeli Hagipantelis (Respondent)
• Representation: Counsel; N Beaumont (Applicant); T Molomby SC with Ms M Fraser (Respondents)
• File Number(s): 082005 and 092022; 082006 and 092023

REASONS FOR DECISION

1 On 12 June 2012 the Tribunal published reasons for holding that the Respondents Robert Stanley Bryden and Bandeli Hagipantelis were guilty of Professional Misconduct. We made this finding in respect of each of the four applications before us (being file numbers 082005, 082006, 092022 and 092023).

2 On 24 August 2012 we heard submissions as to the orders which should flow from our previous findings and Mr Beaumont tendered (over objection) a bundle of documents from which we were asked to infer that Mr Hagipantelis caused the publication of further unlawful material after 12 June 2012. However certain correspondence in the bundle raised an issue as to whether the further material was published unlawfully. As the evidence before us in our opinion does not enable us to resolve that issue we have decided to disregard the documents in the exhibit as irrelevant to any matter we have to decide.

3 The previous findings related to unlawful advertisements and advertising material published by the Respondents in 2007 and 2008.

4 In relation to Mr Bryden his Counsel Mr T Molomby SC read the Affidavits of Mr Bryden himself and of Angelo Bilias, Solicitor, Geoffrey Thomas Connellan, Solicitor, John Eades Solicitor, Roslyn Elizabeth Everett, Solicitor, Richard John Harvey, Solicitor, Michael John Maxwell, Barrister, Paul McGahen Insurance Consultant, June McPhie Solicitor, Michael James Weylan, Solicitor, Ross Owen Pooley, Solicitor, Richard Wallace Seton, Senior Counsel, and John David Watts, Barrister.

5 Mr Bryden's affidavit sworn 10 July 2012 recited his admission as a Solicitor in 1981, his joining the practice then conducted by his brother at Liverpool in 1983, and the constitution of a new partnership including Mr Hagipantelis in 1994. He also referred to the decision of the partnership in the early 2000's to appoint a dedicated general manager to the firm. Seemingly he blames the general manager at the time of the offences for letting the firm down. However as we noted in the reasons published on 12 June 2012 that manager was not called to give evidence and there was no explanation for his absence from the witness box other than that his services had been terminated. We dealt with this matter in our previous reasons.

6 The second section of Mr Bryden's affidavit referred to his community and voluntary work within and outside the legal profession. They have been extensive and demonstrate a range of personal and financial support to a variety of causes. In the legal profession itself he has served as a Law Society Councillor, on a number of Committees, and as the Society's representative on various outside bodies including the Board of LawCover - a remunerated position.

7 He referred to the impact of our decision of 12 June 2012:

"27. Due to the decision of the Tribunal in these proceedings I have been asked to resign from my paid position on LawCover as well as from my voluntary positions on the Professional Conduct and Audit Committees. I had also been appointed by the Specialist Accreditation Board to the Advisory Committee to assist with examination process which is at presently underway in the personal injury area. I have been asked (sic) resign from that committee as well. I have sought leave of absence from Council pending developments. Following an approach from a member on the Specialist Accreditation Board concerned with the Tribunal's decision I have withdrawn my accreditation. I have been an accredited specialist since the inception of the scheme in 1993.

28. I was due to seek re-election to Council after expiration of my 3 year term in a few months and have decided, due to the Tribunal's decision that I will not do so. I am extremely disappointed and upset about this as I have many friends on Council and on staff and I was keen to support the incoming President".

8 The affidavit further reveals that Mr Bryden and his wife have had health problems and that as a result of our decision he has retired from the partnership although he continues as a consultant.

9 The deponents of the other affidavits for the most part were professional acquaintances and all spoke very highly of his hard work, professionalism, ethical conduct, dedication, integrity and ability.

10 Typical are the remarks of Ms McPhie who deposed that she has known Mr Bryden for a period in excess of 10 years in a professional capacity and as a fellow Councillor of the Law Society.

"4. Throughout the period I have known him, I believe that I have come to know Mr Bryden well. I believe I am in a position to assess his character.

5. I consider Mr Bryden to be a person of fine and honest character. He has served the legal profession knowledgeably, altruistically, and generously throughout the whole period of our association.

6. Based on my knowledge and observation of him, it is my view that Mr Bryden would not knowingly or deliberately contravene any regulation imposed upon the legal profession. Nor, in my view, would he knowingly or intentionally authorise, encourage or condone any such contravention.

11 All this evidence was unchallenged and we accept it as we accept that Mr Bryden did not knowingly or intentionally cause the publication of unlawful advertising material.

12 In relation to Mr Hagipantelis Mr Molomby read his affidavit sworn 6 July 2012, together with affidavits of Elizabeth Welsh, Barrister, John Turnbull, Barrister, Anne Healey, Barrister, Warwick Reynolds, Barrister, Paresh Khandhar, Barrister, John Renshaw, Solicitor, Mark Daley, Barrister and the Statutory Declaration of Anthony Renshaw, Barrister.

13 Mr Hagipantelis recited that he was admitted as a Solicitor in April 1989 and became a partner at Brydens in May 1994. He purchased Mr Bryden's interest in their partnership as at 30 June 2012 and has continued to conduct the practice since. Mr Bryden is to remain a consultant for 3 years.

14 Mr Hagipantelis has also made a significant contribution to the affairs of the Law Society although not nearly to the extent of Mr Bryden. He too seems to attribute responsibility for the unlawful advertising to the firm's general manager at the relevant time.

15 He said that since the termination of that person's employment he has accepted the role himself and has trained suitable staff to assist. In particular he said that all advertising must be approved and signed off by him.

16 After our reasons were published on 12 June 2012, Mr Hagipantelis said that he retained an accreditation consultant Ms Margaret Jacobsen to codify the firm's policy concerning advertising and marketing and be annexed to his affidavit a copy of her report. We have read Ms Jacobsen's report which, if fully implemented, should ensure that there is no repetition of the breaches considered by the Tribunal.

17 As was the case with Mr Bryden the other deponents spoke very highly of Mr Hagipantelis' professional and ethical conduct. An example is the affidavit of Mr Daley who has known Mr Hagipantelis since 1989 and has been regularly briefed by him since 1994:

"6. In that capacity I have had the opportunity to observe Mr Hagipantelis over a period of in excess of 20 years grow in both a personal and legal sense.

7. In a personal sense he has matured into a kind and compassionate human being. He is loyal to a fault. I have also found him unscrupulously honest in all my dealings with him.

8. He cares about his clients and he cares about the injustice which many of them suffer as a result of a life changing injury.

9. He is diligent and hard working in pursuing their interests. Often he is the first in at work and the last to leave.

10. On numerous occasions over the years I have seen Mr Hagipantelis take on claims and pursue them even when the prospects of being paid were not great because it was a difficult case for the injured party to win. Notwithstanding those difficulties never once in the time I have been briefed by Mr Hagipantelis has he ever declined to pay for a disbursement to obtain a medical report or other evidence that I have advised was necessary to advance the clients claim as best as it could.

11. I recall one claim in particular where the injured person had suffered devastating personal injury at work but that due to changes in the law that had taken place the day before his injury had been advised by a number of different law firms, senior counsel and junior counsel that the claim could not be won. Despite this Mr Hagipantelis and his solicitor with the carriage of the matter took the view that something had to be done and he authorised the expenditure necessary to obtain the medical and other experts reports necessary to pursue the case. The claim proceeded twice at first instance and involved two trips to the Court of Appeal. It was a very expensive exercise and in light of the previous legal opinions the prospects of recovering those expenditures was not good. Fortunately the claim was ultimately successful and new law was made. The case is still regularly cited in the Workers Compensation Commission.

12. Over the years I have also been briefed in numerous claims on behalf of injured children. It has been my observation that Mr Hagipantelis' invariable practice in relation to injured children, no matter how costly the case is to prove and run, only charges those costs that can be recovered on a party/party basis. In some cases pursuing justice for the infant is totally un-economic but I have never once seen the case abandoned.

13. Further there have been numerous cases where to see a result for the injured person the legal fees that would otherwise have been charged have been waived in substantial part."

18 The evidence given in support of Mr Hagipantelis was unchallenged and we accept it. As with Mr Bryden we also accept that Mr Hagipantelis did not knowingly or intentionally breach the law regarding advertising.

19 Mr Beaumont submitted that each respondent should be reprimanded and fined. He referred to a non-exhaustive list of relevant considerations viz the nature and seriousness of the misconduct, whether the Practitioner exhibits insight and remorse, the general standing and character of the practitioner and the need for specific and general deterrence.

20 As to the seriousness of the transgressions Mr Beaumont contended that the breaches were repeated and substantial. He instanced the fact that the original complaint about the firm's website was made on 11 October 2006 yet the website was not changed until September 2007.

21 Mr Beaumont also submitted that neither respondent had demonstrated insight into or remorse for his conduct .... "in particular there is no apology from either of them ..... no acknowledgement of wrongdoing or of the damage which their conduct has done to the name of the profession as a whole".

22 We were referred to Legal Services Commissioner v Malouf [2007] NSW ADT 215 and Legal Services Commisioner v Keddie [2008] NSW ADT 185. In Malouf where the Solicitor made full admissions prior to the hearing he was reprimanded and a fine of $4,000 in respect of each complaint was imposed. The application was said to be the "first one brought under clause 139 of the Legal Profession Regulation 2002". The offences seem to have been committed at various times before October 2005.

23 In Keddie there were two complaints made respectively 20 May 2005 and 8 June 2006. The Solicitor made full admissions by his Formal Reply to the Application. The Tribunal reprimanded the Solicitor and imposed a fine of $5,000 for each breach.

24 In his submissions Mr Molomby pointed to evidence that the Respondents engaged in extensive advertising of their services without complaint for several years suggesting that in that period the system they had in place operated effectively. He submitted, as we have accepted, that neither Respondent knowingly or intentionally breached the law in relation to advertising. In that circumstance Mr Molomby contended that the case is to be distinguished from both Malouf and Keddie.

25 However we are not persuaded that the fact that the Respondents did not knowingly or intentionally publish the offending material is as significant as Mr Molomby submits for the reason that the Respondents seem to have taken no steps whatever over a lengthy period to ensure that their manager complied with their direction that all advertising material accord with the law. As indicated in our previous reasons they seemed to have turned a blind eye to whether their extensive advertising campaign was or was not compliant.

26 However contrary to Mr Beaumont's submission we are satisfied that the Respondents by their words and conduct have indicated that they now have both insight into and remorse for their conduct. The impact upon Mr Bryden's hitherto unblemished and distinguished career in particular has been very considerable.

27 The proven breaches of the law in relation to advertising were however objectively very serious and presumably operated to the financial advantage of the Respondents. The conduct in our view requires the Tribunal to make orders designed to denounce the Respondents' conduct to deter them from further offending and perhaps more importantly to deter other members of the profession who might otherwise be minded to offend in a similar way.

28 Although we accept that the offences do not warrant removal from the roll we agree with Mr Beaumont that the imposition of reprimands and fines is required to merit the circumstances of the case.

29 The powers to reprimand and impose fines are contained in s 562 of the Legal Profession Act 2004. The maximum fine which may be imposed is limited by sub section (7):

(7) Maximum fine

The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal's findings about a complaint must not exceed in total:

(a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or

(b) $75,000 in the case of professional misconduct.

If the Tribunal finds that the practitioner has engaged in both professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct, the amount must not exceed $75,000 in total.

30 In all we have found that six complaints were proved against each respondent. In the circumstances we think that the same fine should be imposed in respect of each transgression and that their culpability should be regarded as equal. They both are entitled to the benefit of their high standing in the profession and the community at large and to the absence of an intent to offend. They are not entitled as were Mr Keddie and Mr Malouf to the benefit of early admissions of wrongdoing. Indeed we believe that neither respondent exhibited any remorse or contrition for his wrongdoing prior to the publication of our decision on 12 June 2012. In our view a fine of $8,000 for each proved offence against each respondent would meet the circumstance of the case.

ORDERS

31 We make these findings and orders:-

(1) Each Respondent is found guilty of Professional Misconduct.

(2) Each Respondent is reprimanded.

(3) Each Respondent to pay a fine of $48,000.

(4) The Respondents are to pay the Applicant's costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 01 November 2012