Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of New South Wales v Leslie [2013] NSWADT 81
• Hearing dates: 2 April 2013
• Decision date: 02 April 2013
• Jurisdiction: Legal Services Division
• Before: M Riordan, Judicial member; N Isenberg, Judicial Member; J Butlin, Non-Judicial Member

Decision

The Solicitor is guilty of professional misconduct on the grounds alleged in the Application.

1.The Solicitor is reprimanded.

2.The Solicitor is to pay a fine of $4,000.

3.The Solicitor is to pay the Applicant's costs, as agreed or assessed.

4.Leave granted to the Complainant, Mr Ciaran Donnelly, pursuant to s570 (4) LPA to request the making of a compensation order.

• Catchwords: Solicitor - professional misconduct - failure to adequately prepare the complainant's case - failure to comply with Court timetables - failure to attend Court for the hearing - making of an application for a compensation order
• Legislation Cited: Legal Profession Act, 2004
• Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; Allinson v General Council of Medical Education and Registration [1894] QBD 750 at 768; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157; Smith v New South Wales Bar Association (1992) 176 CLR 256 (at 270); Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (at 441-442)
• Category: Principal judgment
• Parties: Council of the Law Society of NSW (Applicant); James Edward Leslie (Respondent)
• Representation: C Groenewegen, (Applicant); J Leslie (Respondent, in Person)
• File Number(s): 122029

reasons for decision

EX TEMPORE FINDINGS AND ORDERS MADE AT THE HEARING ON 2 APRIL 2013

1 At the conclusion of the hearing of the Application for Original Decision (as at the hearing date) on 2 April 2013, the Tribunal made the following ex-tempore findings and orders and indicated that we would publish our reasons for decision in due course:

'We are comfortably satisfied on the evidence before us that the conduct alleged against the Respondent, and conceded by the Respondent, constitutes professional misconduct as defined in s497 (1)(a) of the Legal Profession Act, 2004, in that the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

Further, in our view, the Respondent's failure to adequately prepare the complainant's case and his failure to comply with the timetables set by the Federal Magistrates Court and his failure to attend Court for the hearing of the Application for Summary Dismissal on 1 July 2011 also constitute conduct of a type that his professional brethren of good repute would regard as disgraceful and/or dishonourable.

Accordingly, we find that the Respondent is guilty of professional misconduct on the grounds alleged in the Application.

We therefore make the following orders:

1) The Respondent is reprimanded.

2) The Respondent is to pay a fine of $4,000.

3) The Respondent is to pay the Applicant's costs, as agreed or assessed.'

2 Our reasons for this decision are set out below.

Background to Application for Original Decision

3 The Council of the Law Society of New South Wales ("the Law Society") filed an Application for Original Decision under the Legal Profession Act 2004 ('LPA') alleging that the Respondent, James Edward Leslie ("the Solicitor") was guilty of professional misconduct, in that while practising as a solicitor he failed to:

A. Adequately prepare the complainant's case;

B. Comply with Court timetables; and

C. Attend Court for the hearing on 1 July 2011.

4 The grounds of the Application, which were not disputed by the Solicitor, were particularised as follows:

Ground A - The Solicitor failed to adequately prepare the complainant's case

A1 About mid April 2010 the Solicitor was retained by the complainant to advise upon and, if appropriate, to pursue his rights in an employment dispute with his employer Hewlett-Packard Australia Pty Ltd ['HP'].

A2 The nature of the employment dispute was as follows:

a) The complainant was employed as a Software Services Specialist by HP from 1 July 2003 to 21 May 2010.

b) By way of letter dated 23 March 2010 the complainant was given written notice by HP that his position was being made redundant.

c) The complainant believed his selection for redundancy was discriminatory on the basis that his role at HP was not abandoned but was filled by a younger person returning from maternity leave.

d) The complainant was issued with a redundancy package that included a calculation of severance pay dated back to 1 July 2003.

e) Prior to his employment with HP the complainant had worked in the computer industry. He commenced working for Digital Equipment Corporation (Australia) Pty Limited ['DEC'] as a Projects Specialist in December 1990. The complainant believes that DEC was taken over by Compaq Global Services ['Compaq'] in 2002. The Complainant worked for Compaq until it was taken over by HP in 2003.

f) The complainant was engaged continuously from December 1990 until his redundancy took effect on 19 April 2010.

g) The complainant believed he was entitled to have the years from December 1990 until 1 July 2003 taken into account in the redundancy package issued by HP. On his own calculations, such an inclusion would have increased value of the complainant's redundancy package by $112,852.00.

h) HP asserted that the complainant was not an employee of DEC or Compaq but was in fact an independent contractor supplied by Manpower Services (Australia) P/L, and as such, was not entitled to have these working years considered in any redundancy package issued by HP.

A3 The issues in the case were:

a. Was the complainant lawfully made redundant or was his position unlawfully terminated?

b. If the complainant was unlawfully terminated what were his remedies?

c. If the complainant was lawfully made redundant, then:

i. Was the complainant an employee of entities ultimately taken over by HP?

ii. If so, did that render him effectively an employee of HP for those years?

iii. If so, was the complainant entitled to have those years of service accounted for in the redundancy package offered by HP?

A4 By letter dated 2 July 2010 from Norton Rose solicitors for HP, to the Solicitor, the issues in paragraphs A3a and A3c above were articulated including the following words:

'Basis for termination ...

Allegations regarding continuous employment service

We do not believe that there is any basis for the view that [the complainant] was employed by our client or Compaq prior to 1 July 2003.

We note that the congratulatory letter of 16 January 2002 you refer to is actually on Manpower letterhead and refers to 10 years service (sic) "within the Compaq environment". While you are correct to point out that this acknowledges "10 years of continuous service at Compaq", this is not indicative of (and legally equivalent to) 10 years continuous service with Compaq as the employer.

Far from being "unequivocal evidence of 19 years of continuous employment service", as is alleged in your correspondence, the . . . letter merely confirms that [the complainant] was placed at Compaq by Manpower during that period pursuant to a labour hire arrangement. While HP does not deny that this placement occurred, it does not accept that this placement amounted to an employment relationship between your client and HP and/or your client and Compaq.'

A5 On 2 July 2010 HP offered to settle the matter with the complainant by paying him $9,016.80 [gross] in consideration of him ceasing all current claims against HP.

A6 On 12 July 2010 the complainant met with the Solicitor in his office to discuss the details of HP's offer and to formulate a response.

A7 In his letter dated 15 July 2010 to Norton Rose, the Solicitor referred to the issues in paragraphs A3a and A3c above and rejected HP's offer of settlement.

A8 On or before 27 July 2010 the complainant instructed the Solicitor to serve a claim on HP.

A9 The relevant history of the complainant's case was pleaded in the form of a Table. However, we have summarised its contents as follows:

• On 24 November 2010 an Application and affidavit filed, said to be accompanied by a statement of claim was filed in the Fair Work Division of the Federal Magistrates Court of Australia: Ciaran Donnelly v Hewlett-Packard Australia Pty Ltd Court File Number SYG 2546 of 2010. However, no statement of claim was filed with the application. Further, the affidavit 'left completely obscure as to how [the applicant's entitlement to] claimed additional liability came about, or could come about as a matter of fact and law'. Donnelly v Hewlett-Packard Australia Pty Ltd [2011] FMCA 523 per Smith FM ['Judgment'] at paras 2,3.
• On 17 December 2010 the Application was returnable. The Solicitor attended at Court. The Judgment (at para 4) indicates that the following orders were made:

'3. The applicant must file and serve an amended application and statement of claim, which include the precise orders sought on the proceedings, and identify the causes of action relied upon by reference to all the material facts and any statutory provisions, and all further affidavits on which he intends to rely, including full particulars and evidence in support of any compensation or other relief claimed on or before 7 February 2011.'

• The timetable also directed for other procedures leading to a final hearing date on 12/5/2011. However, the Solicitor failed to comply with order 3.

• On 10 January 2011 the Respondent filed a Notice of Address for Service.
• On 9 February 2011 David Cross of Norton Rose wrote to the Solicitor seeking the applicant's documents that were due to be filed and served by 7 February 2011. No response to this letter was received by Norton Rose.
• On 15 February 2011 David Cross wrote to the Solicitor noting that no response had been received to his earlier letter and seeking the applicant's documents that were due to be filed and served by 7 February 2011. No response to this letter was received by Norton Rose.
• On 22 February 2011 Norton Rose telephoned the Solicitor and left a message. However, no response to this telephone call was received by Norton Rose.
• On 28 February 2011 David Cross wrote to the Solicitor noting that no response had been received to his telephone call of 22 February or his earlier letters and he sought the applicant's documents that were due to be filed and served by 7 February 2011. However, no response to this letter was received by Norton Rose.
• On 2 March 2011 Norton Rose requested that the matter be relisted.
• On 11 March 2011 the matter was relisted. The Solicitor appeared at Court. By consent, the time for compliance with Order 3 was extended to 25 March 2011 and the Timetable was adjusted to maintain a proposed hearing date of 12 May 2011. However, the Solicitor failed to comply with the direction for a properly pleaded case and no documents were served on HP.
• On March 2011 Norton Rose requested that the matter be relisted.
• On 8 April 2011 at 8:24am the Solicitor served by email unsealed copies of an amended Application, statement of claim and further affidavit of the complainant on Norton Rose.
• On 8 April 2011 the matter was relisted. A member of the Solicitor's firm appeared at Court. The orders were made (relevantly):

'1. Note that applicant is in default under Order 3 made on 17 December 2010, as amended on 11 March 2011.

...

3. The applicant must comply with order 3 made on 17 December 2010 no later than 15 April 2011.

4. If the applicant fails to comply, then the application is dismissed under r.13.03B(1)(c) as to the whole of the relief claimed by the applicant.' ...

7. Matter listed for directions on 10/6/2011.'

• Costs were ordered against the applicant 'due to the complete absence of any justification for the previous non-compliances'.
• On 8 April 2011 an amended Application and statement of claim and an affidavit of the applicant sworn 6 April 2011 were filed. However, these 'did not meet the requirements of the previous orders' (see: Judgment paras 9 to 13).
• On 11 April 2011 Norton Rose wrote to the Solicitor pointing out the defects in the statement of claim (see: Judgment para 12). However, no response to this letter was received by Norton Rose.
• On 27 April 2011 Norton Rose requested that the matter be relisted.
• On 6 May 2011 the matter was relisted. The Solicitor appeared at Court. The Judgment (paras 13 to 15) indicate that the following orders were made:

'Acknowledgment by the Solicitor that complainant's case had not yet been adequately pleaded or presented in a manner comprehensible to the respondent or the Court. Representation by the Solicitor that counsel had been briefed to draft pleadings or would be briefed urgently.'

Orders:

'2. The applicant must file and serve an amended application and a statement of claim which include the precise orders sought in the proceedings, and identify the causes of action relied upon by reference to all the material facts and any statutory provisions, and all further affidavits on which he intends to rely, including full particulars and evidence in support of any compensation or other relief claimed, no later than 23 May 2011.'

• The matter was relisted for further directions on 1 July 2011 when 'the respondent may make any application for summary dismissal returnable on that date'. Costs were ordered against the applicant and the Solicitor was alerted by Smith FM that such an application would be entertained favourably if there was further non-compliance. However, the Solicitor failed to comply with the orders.

• On 24 May 2011 Norton Rose wrote to the Solicitor seeking the applicant's documents that were due to be filed and served by 23 May 2011. It notified the Solicitor that the respondent had given instructions to proceed with an application for summary dismissal if the documents were not received by close of business on 26 May 2011.
• On 16 June 2011 Norton Rose filed an application for summary dismissal returnable on 1 July 2011, which was supported by an affidavit of David Cross sworn 16 June 2011. These were served upon the Solicitor in accordance with the Court's Rules.
• On 1 July 2011 the matter was listed for hearing of the application for summary dismissal. However, there was no representation on behalf of the complainant. Smith FM ordered that the proceeding be dismissed generally under r.13.03B(a) and that there was no appearance by the Solicitor and that he had not offered any explanation for his absence to the Court.
• On 12 July 2011 Smith FM delivered his reasons for Judgment. Paragraphs 19 to 24 provided (relevantly):

'On the material before the Court, it is plain and not contested, that the repeated and protracted defaults ... have occurred. In my opinion they show a complete disregard to the Court's directions, and for its efforts and responsibility to bring the proceedings to a proper state of preparation and finality...

[The applicant] has now been given more than six months to get his case into the shape where it should have been at commencement, that is, presenting a comprehensible assertion of rights by reference to material facts and the identification of relevant statutory provisions. His defaults, in my opinion, are so serious, repeated, and continuing as to justify the exercise of the Court's powers under r.13.03B(1).'

...

'In my opinion, the documents filed by Mr Donnelly have not presented a case showing prospects of success, and, by reason of [the applicant's] default, that failure to show a case with merit continues at a stage where he should be expected to show reasonable prospect by reference to proper pleading and evidence. I am therefore inclined to accept the grounds for summary dismissal under r.13.10(a) have also been established, However, I do not need to exercise that power, since I am satisfied that summary dismissal is appropriately ordered by reason of the defaults alone.'

A10. When asked by the Law Society if he had any comment to make on the decision Donnelly v Hewlett-Packard Australia Pty Ltd [2011] FMCA 523, the Solicitor replied in his letter to dated 26 March 2012 to the Society:

'I acknowledge that I did not fully consider the complexity and difficulty with the legal issue in the matter and what would be involved in securing a possible successful outcome, if such was even possible. I also acknowledge I should have retained Counsel much earlier in the proceedings to assist in determining and clarifying whether a successful claim would [be] made. I was hopeful that I could persuade HP to enter into a settlement of the matter but they were unwilling to do so. In the absence of any settlement of the matter, I did not take the necessary action to pursue the matter as it became too complex.'

A11 In his letter dated 3 August 2012 to the Law Society the Solicitor stated:

'4. I acknowledge that I did not fully consider the complexity and difficulty with the legal issue in the matter and what would be involved in securing a possible successful outcome, if such was even possible. I also acknowledge I should have communicated the difficulty more fully with the Complainant so that he could decide whether to proceed further or retained Counsel at a much earlier time in the proceedings. This would have assisted the Complainant in making a more informed decision about his case and clarified the degree of a success.'

A12 The Solicitor failed to adequately prepare the complainant's case by:

a. Failing to ascertain the issues in the case in a timely manner;

b. Failing to satisfactorily draft an application and statement of claim referable to the issues in the case;

c. Failing to marshal the evidence required to prove the complainant's case;

d. Failing to satisfy himself that the case had reasonable prospects of success before an offer of settlement dated 2 July 2010 was rejected and before proceedings were commenced on 24 November 2010;

e. In the absence of his own mastery of the matters described in paragraphs A12a to A12d above, failing to brief counsel;

f. Advising the complainant to reject an offer of settlement by HP dated 2 July 2010 in circumstances where the Solicitor failed to appreciate the issues, merits and prospects of success of the case;

g. Choosing to adopt a course of seeking to extract a settlement out of the respondent without first establishing the factual or legal basis of liability in the respondent and without formulating a plan if settlement was not forthcoming.

Ground B - The Solicitor failed to comply with Court timetables

B1 On 17 December 2010 the Court made orders that included Order 3 in the following terms:

'3. The applicant must file and serve an amended application and statement of claim, which include the precise orders sought on the proceedings, and identify the causes of action relied upon by reference to all the material facts and any statutory provisions, and all further affidavits on which he intends to rely, including full particulars and evidence in support of any compensation

or other relief claimed on or before 7 February 2011.'

B2 The Solicitor failed to comply with Order 3 above when no amended application and statement of claim were filed on or before 7 February 2011.

B3 On 11 March 2010 the Court made orders extending the time for compliance with Order 3 above to 25 March 2011.

B4 The Solicitor failed to comply with the Court Orders of 11 March 2011 when no amended application and statement of claim were filed on or before 25 March 2011.

B5 By letter dated 26 March 2012 to the Law Society the Solicitor states that he did not comply with the Court Orders requiring 'a further claim be filed setting out the precise nature of the claim' because 'I was now placed in a position that costs of continuing to litigate the matter would involve fees that were not allowed for by me in the matter.'

B6 On 8 April 2011 the Solicitor served and filed an amended application and statement of claim and further affidavit of the applicant.

B7 The amended application and statement of claim did not meet the requirements of the previous orders.

B8 On 8 April 2011 the Court made orders made noting that the applicant was in default under Order 3 made on 17 December 2010, as extended. Smith FM directed that the applicant must comply with order 3 made on 17 December 2010 no later than 15 April 2011. Costs were ordered against the applicant 'due to the complete absence of any justification for the previous non-compliances' The matter was listed for directions on 10 June 2011.

B9 In relation to the directions hearing of 8 April 2011, the Solicitor by his letter dated 26 March 2012 to the Law Society, states that he does not recall if orders were made on that date; does not recall what those orders were; does not recall whether the orders of the court were complied with; and does not recall any reasons for non-compliance, if in fact non-compliance with the orders occurred.

B10 The Solicitor failed to comply with the Court Orders of 8 April 2011 as no amended application and statement of claim were filed on or before 15 April 2011.

B11 The matter was re-listed for directions on 6 May 2011. The Court Orders included:

'2. The applicant must file and serve an amended application and a statement of claim which include the precise orders sought in the proceedings, and identify the causes of action relied upon by reference to all the material facts and any statutory provisions, and all further affidavits on which he intends to rely, including full particulars and evidence in support of any compensation or other relief claimed, no later than 23 May 2011.'

The matter was listed for further directions on 1 July 2011.

B12 In relation to the directions hearing of 6 May 2011, the Solicitor by his letter dated 26 March 2012 to the Law Society, states that he does not recall if orders were made on that date; does not recall whether the orders of the court were complied with; and does not recall any reasons for non-compliance, if in fact non-compliance with the orders occurred The Solicitor further states that the matter was listed for hearing on 24 May 2011.

B13 The Solicitor failed to comply with the Court Orders of 6 May 2011 as no amended application and statement of claim were filed on or before 23 May 2011 or at all.

Ground C - The Solicitor failed to attend Court for the hearing on 1 July 2011

C1 The Solicitor advised the complainant that he would not be required to attend the hearing on 1 July 2011 ['the Hearing'] 'because there was only a legal issue involved in the matter relating to whether the inclusion of his subcontracted employment could be considered as part of his years of service with HP and its predecessors'.

C2 Neither the Solicitor, nor any other legal representative, appeared for the complainant at the Hearing.

C3 In his letter dated 26 March 2012, the Solicitor states that he did not appear at the Hearing 'because the matter was not properly prepared for the hearing and I was concerned about an adverse cost [order] arising in the matter'.

C4 The matter was summarily dismissed at the Hearing.

C5 In his letter dated 3 August 2012 to the Law Society the Solicitor states on page 2:

'6. My subsequent withdrawal of the matter on 1 July, whilst not properly communicated to the Complainant or the Court, avoided any further costs being incurred that could have become payable by the complainant if the claim was ultimately unsuccessful...

7. I also note that no costs were incurred by the complainant with the matter proceeding on a no win no cost basis...

8. I was clearly over ambitious in terms of what could be achieved in the matter and once the complexity of the claim became real, I was confronted with needing to incur substantial costs with no guarantee of success...'

C6 The Solicitor did not withdraw the matter: he abandoned it without notice to either the Court or the complainant.

C7 The Solicitor failed to fulfil his duty to the Court and to his client because to do so may have resulted in him incurring costs which he could not, in a 'no win no fee' arrangement, claim from the complainant.

Statutory Provisions Relevant to the Determination of the Application

5 Section 496 of the Legal Profession Act, 2004 ('LPA') defines 'unsatisfactory professional conduct' as follows:

'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.'

Section 497 LPA defines 'professional misconduct' (relevantly) as follows:

(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...'

The Federal Magistrates Court Rules 2001 provide (relevantly):

13.03B Orders on Default

(1) If an applicant is in default, the Court may order that:

(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

(b) a step in the proceeding be taken within the time limited in the order; or

(c) if the applicant does not take a step in the time mentioned in paragraph (b) - the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

13.10 Disposal by summary dismissal

The Court may order that a proceeding be stayed, or dismissed generally in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b) the proceeding or claim for relief is frivolous or vexatious; or

(c) the proceeding or claim for relief is an abuse of the process of the Court.

6 The Law Society relied upon Affidavits sworn by Anne-Marie Foord on 22 October 2012 and Cora Groenewegen sworn on 24 October 2012. These were admitted into evidence without objection and neither deponent was required for cross-examination.

7 The Solicitor filed a Reply in which he did not dispute 'the factual basis upon which the Application has been made'. However, while he conceded 'having acted unprofessionally', he denied 'a finding of professional misconduct'. In addition, the Reply indicated that he 'concedes a reprimand and warning but denies a fine is necessary'.

8 The Tribunal noted that in his letter to the Law Society dated 3 August 2012 the Solicitor stated (relevantly):

'As a result, I also concede, without objection, to a finding of professional misconduct as resolved by the Committee. As set out by the Committee, I failed to adequately prepare the case, attend to the Court timetable and attend on 1 July 2011, although in the latter case I was seeking to avoid any further adverse costs orders for the complainant...'

9 We queried the Solicitor's denial of the allegation of 'professional misconduct' in his Reply, given his previous written concession of this allegation to the Law Society. He replied that he had decided to deny this allegation in these proceedings as he did not regard his conduct as being 'disgraceful and/or dishonourable' and that this was required to be found for a determination of professional misconduct to be made. While this was clearly a reference to the Allinson test, being the common law test for professional misconduct, the Solicitor did not turn his mind to or address the statutory definition under section 497 LPA.

10 The Solicitor relied upon a short affidavit that he swore on 31 January 2013. This was admitted into evidence without objection and the Law Society did not seek to cross-examine him on its contents.

11 In this affidavit, the solicitor stated that he opposed a finding of professional misconduct for the following reasons:

'6. I made no personal gain from the matter and never sought any personal gain.

7. My conduct whilst below what should have been provided to the complainant was not misconduct in that no improper action or inaction was directed with intent or otherwise at the claimant.

8. It is relevant and I submit that my personal circumstances be taken into consideration...'

12 We further note that the Solicitor also deposed to certain 'issues' and difficulties of a personal nature, which he said existed at the time that the conduct occurred, including the breakdown of his marriage and concerns regarding the welfare of his children. He stated that these caused him to suffer 'significant anxiety and depression' for which he sought professional assistance from a psychiatrist and a counsellor and that he had sought a report from his treating psychiatrist, 'which I will file shortly'. While he properly conceded that these 'personal affairs' did not excuse 'my lapse in professional conduct', he asserted that they were 'provided as an explanation for my lapse and failings in better dealing with the complainant's matter'.

13 We further note that while the Solicitor deposed that he was 'regretful and saddened by my lapse in professional behaviour', which had led to the complainant 'being let down by me and not provided with the necessary and proper advice for his legal problem', he did not express any regret or the like regarding his conduct towards the Federal Magistrates Court. This omission has caused us significant concern.

14 Ultimately, however, the Solicitor failed to file any medical evidence and when asked about this, he informed the Tribunal queried that he did not intend to rely upon any medical evidence and that his treating doctor had advised him 'not to hide behind health issues but to face up to what happened'. Accordingly, there is no medical evidence that in any way offers an explanation for the relevant conduct.

Submissions

15 In relation to the issue of whether or not the relevant conduct comprises 'unsatisfactory professional conduct' or 'professional misconduct', Ms Groenewegen submitted that if the conduct set out in the grounds and particulars were viewed as 'a single event', then a finding of 'unsatisfactory professional conduct' may be appropriate. However, if they were viewed as a series of events over a period of time, then a finding of 'professional misconduct' was appropriate. She submitted that the latter finding was appropriate as the Solicitor's conduct comprised both malfeasance and nonfeasance, in that he:

• failed to observe and comply with numerous orders of the Court;
• he failed to assess the merits of the complainant's case;
• he failed to brief counsel; there were elements of negligence in relation to his attempts at preparation and analysis of the claim;
• there were elements of negligence in relation to his assessment as to whether HP's settlement offer was adequate and/or represented a bonus to the complainant; and
• there were elements of negligence in relation to his failure by November 2011 to recognise the issues sufficiently so as to plead them properly in an Application that was supported by an appropriate affidavit.

16 Ms Groenewegen also referred to the Solicitor's explanation to the Law Society in his letter dated 3 August 2012, that in failing to attend Court on 1 July 2012 he was 'seeking to avoid any further adverse costs orders for the complainant' and also (relevantly):

'6. My subsequent withdrawal of the matter on 1 July, whilst nor properly communicated to the Complainant or the Court, avoided any further costs being incurred that could have become payable by the Complainant if the action was ultimately unsuccessful. I note that upon my withdrawal from the action, the employer took no action to seek any costs payable against the Complainant.

7. I also note that no costs were incurred by the Complainant with the matter proceeding on a no win no cost basis to avoid the Complainant having any liability for my costs if the claim was unsuccessful.

8. I was clearly over ambitious in terms of what could be achieved in the matter and once the complexity of the claim became real, I was confronted with needing to incur substantial costs with no guarantee of success which had not previously been anticipated by me. If so, the complainant could have made a more informed decision about whether to proceed any further with the case bearing in mind the extent of costs that would then arise by the retention of Counsel and drawing of further evidence in the matter.'

17 While Ms Groenewegen properly conceded that the Application did not allege that the Solicitor had preferred his own interests to those of his client, she nevertheless argued that this was a relevant factor in determining the nature of the conduct.

18 Ms Groenewegen pressed for the orders sought in the Application to be made, namely that:

• the Solicitor be reprimanded;
• the Solicitor pay a fine;
• the Solicitor pay the Law Society's costs of the Application, as agreed or assessed; and
• any further order that the Tribunal deems fit.

19 In relation to the issue as to whether any fine ought to be imposed, Ms Groenewegen argued that while the Tribunal's role is not punitive in nature, it is nevertheless educative and that a fine should be imposed in this matter in order to send a message to the legal profession as a whole that conduct of the type alleged in this matter is abhorrent and will not be tolerated.

20 The Solicitor did not seek to raise in oral submissions any matters in addition the maters contained in his Affidavit (and discussed above). As previously stated, he restricted his submissions to the issue of whether the common law test of professional misconduct (as stated Allinson v General Council of Medical Education and Registration [1894] QBD 750 at 768) was satisfied. In that matter, Lopes LJ approached the definition of the term "infamous conduct" as follows:

"Then I come to the question of 'infamous conduct in a professional respect,' and, in my opinion, if there was any evidence on which the council could reasonably have come to the conclusion to which they did come, their decision is final. If, on the other hand, there was no evidence upon which they could reasonably arrive at that conclusion, then their decision can be reviewed by this Court. It is important to consider what is meant by 'infamous conduct in a professional respect.' The Master of the Rolls has adopted a definition which, with his assistance and that of my brother Davey, I prepared. I will read it again: 'If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,' then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct in a professional respect.'"

21 While the Solicitor argued that his conduct did not warrant the imposition of a fine, he did not refer to any case law that supported his submission. However, he ultimately conceded that he should have advised the complainant to accept HP's settlement offer and he concluded his submissions by stating that he was 'prepared to concede to a compensation order in favour of the complainant to the extent of that settlement offer.'

Reasons for Decision

22 It is clearly established law that legal practitioners owe a duty to the Courts; a duty to their clients; a duty to the proper and efficient administration of justice (which includes a duty to uphold the law); a duty to the legal profession as a whole; and a duty to the public (including members of other professions). The existence of these duties was confirmed by the Court of Appeal in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279, as follows:

"19. Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the State regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

20. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to their lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The Judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the Judiciary and/or public in the performance of professional obligations by professional people".

23 The facts alleged in the application are not disputed. Based on the undisputed evidence before us find that the Solicitor clearly breached his duty to the complainant in respect of each of the grounds of the Application. In so finding, we agree with the Law Society's submission that his conduct involved both malfeasance and nonfeasance.

24 We also find that the Solicitor breached his duty to the Federal Magistrates Court by reason of his failure to comply with its Timetables and the Orders made by Smith FM and by failing to appear at the hearing on 1 July 2011 without notice or explanation to the Court.

25 Further, as a result of his breach of duty to the complainant and the Court, we find that the Solicitor's conduct was of such a nature as being capable of undermining the public's confidence and trust in the legal profession.

In this regard, we reject the explanation for his non-attendance at the hearing on 1 July 2011 that the Solicitor offered to the Law Society in his letter dated 3 August 2012. There is no evidence that supports his assertion that he withdrew the complainant's matter and/or that he 'withdrew from the action'. Rather, the evidence indicates that he failed to attend Court for the hearing and, by so doing, allowed HP's application for summary dismissal to proceed to determination in circumstances in which the Complainant was left without legal representation.

Considerations as to Penalty

26 The broad and well-established principle that the 'primary object' of disciplinary proceedings against a legal practitioner 'is to protect members of the public from professional misconduct' was stated by the High Court of Australia in Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157 (per by Mason CJ and Wilson, Deane, Toohey and Gaudron JJ).

27 Further, in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270), Justice Deane stated that 'disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner'.

28 This principle was restated by Mahoney JA in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441-442:

"What, then, are the purposes of the orders to be made and the considerations to be taken into account? It has frequently been said that disciplinary procedures and the orders made in the course of them are directed not to the punishment of the solicitor but to the protection of the public. This, of course, is true. The protection of the public has been described as, for example, the primary purpose or a primary object of such proceedings: Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157E; 77 ALR 228 at 235; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 per Deane J; or one of the primary objects of the proceedings and the orders made: see Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251. In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done."

29 For these reasons, we determined to make the ex-tempore orders (set out previously in this decision).

Claim for Compensation

Background

30 While the Application for Original Decision did not indicate the existence of a claim for compensation by the complainant, we note that on 5 February 2013, Mr Donnelly signed a document headed 'Submissions to Administrative Decisions Tribunal 6 Feb 2013', in which he stated (relevantly):

'What remains unresolved is the fact that on James Leslie's advice, I turned down an amount of $10k which was on offer to me by HP. He assured me that I had a very good case for an increased redundancy based on my special circumstances. But it appears from the comments made by the Magistrate in court on 1 July 2011, that James Leslie did little to advance my case by repeatedly failing to comply with court orders re Notices of Motion and by suggesting to hire counsel to assist but failing to do so. So 3 years later I'm still out of pocket and I had to abandon a 12 month contract job in the city due to the added stress of the collapse of my case and the fact that I had to defend myself personally in court without preparation due to James Leslie not showing up to represent me. My hands were shaking so badly after the case that I could not hold a cup of coffee. I have not worked since and I am under Doctor's supervision at the moment.'

31 This clearly indicated that the complainant wished to pursue a claim for compensation against the Solicitor. This issue was discussed at the directions hearing on 6 February 2013 and those discussions were then confirmed in a letter dated 1 March 2013 from Ms Groenewegen to Mr Hargrave (who appeared for the Solicitor at the directions hearing).

32 We note that in this letter, which forms part of the Tribunal's file, Ms Groenewegen noted that Mr Hargrave had expressed the view that 'the basis upon which the complainant was seeking compensation was unclear and that he needed to particularise the same'. She set out the basis of the compensation claim as follows (relevantly):

'First, the power of the Tribunal to award compensation to a complainant is found in Part 4.9, sections 570 to 575 of the Legal Profession Act 2004.

Secondly, the basis of the complainant's claim for compensation is that:

Your client was retained by the complainant in mid-April 2013. The facts necessary for your client to determine the issues in the complainant's case were available at that time;

Even if your client was unable to grasp the issues in the case, they were made clear by letter dated 2 July 2010 from Norton Rose ['the Norton Rose Letter'], solicitors for the complainant's former employer;

Even if, after receipt of the Norton Rose Letter your client was still unable to grasp the issues in the case, then he should have sought counsel's advice to assist him or pass the case to someone who may have been able to grasp the issues and assist the complainant;

Had your client either grasped this (sic) issues himself or been alerted to them by the Norton Rose Letter or counsel's advice, then he would have known that the complainant's case was probably hopeless and at best unlikely to succeed;

In these circumstances, the offer dated 2 July 2010 by the complainant's former employers to settle the matter for $9,016.80 should have been accepted. If the complainant refused to accept the offer, against the advice of your client, then your client should have obtained written instructions from the complainant or at least documented the complainant's election by way of file notes;

The offer was formally rejected by your client acting on the instructions of the complainant who had not had the benefit of adequate legal advice;

The rejection of the offer amounted to an opportunity missed by your client to secure for the complainant any monies from the complainant's former employer.

Any further claims for compensation on the basis of psychological injury suffered by the complainant as a result of your client's admitted mismanagement of the complainant's matter may be articulated by him, or his wife on his behalf at the hearing.'

Legislation relevant to a claim for the making of a compensation order

33 Section 570 LPA provides:

(1) A complainant may request a compensation order in respect of loss suffered by:

(a) the complainant, ...

because of the conduct the subject of the complaint. The complainant, or other person, suffering the loss is referred to in this Part as an "aggrieved person".

(2) A complainant who makes such a request must describe the loss suffered by the aggrieved person and the relevant circumstances.

(3) Such a request may be made in the complaint. The request may also be made, by notice in writing to the Commissioner or the relevant Council, at any time after the making and before the disposal of the complaint.

(4) However, such a request may not be made after proceedings have been commenced in the Tribunal with respect to the complaint unless the Tribunal grants the complainant leave to make the request.

(5) Such a request may only be made within 6 years after the conduct that caused the loss is alleged to have occurred.

Section 571 LPA provides (relevantly):

(1) A compensation order is an order, made in respect of a complaint against an Australian legal practitioner, to compensate the aggrieved person for loss suffered because of conduct that is the subject of the complaint.

(2) A compensation order consists of one or more of the following:

...

(c) an order that the practitioner pay to the aggrieved person, by way of monetary compensation for the loss, a specified amount.

...

(5) A compensation order under subsection (2) (c) requiring payment of an amount exceeding:

(a) $25,000, except where paragraph (b) applies ...

is not to be made unless the complainant and the practitioner both consent to the order.

Section 572 LPA provides:

(1) Unless the complainant and the Australian legal practitioner concerned agree, a compensation order is not to be made unless the person or body making it is satisfied:

(a) that the aggrieved person has suffered loss because of the conduct concerned, and

(b) that it is in the interests of justice that the order be made.

(2) A compensation order is not to be made in respect of any loss for which the aggrieved person has received or is entitled to receive:

(a) compensation received or receivable under an order that has been made by a court, or

(b) compensation paid or payable from a Fidelity Fund of any jurisdiction, where a relevant claim for payment from the Fund has been made or determined.

Section 573 LPA provides (relevantly):

(1) If the Tribunal has found that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint, the Tribunal may:

(a) make a compensation order, or

(b) refer the matter to the Commissioner for the making of a compensation order.

Relevant considerations

34 Having determined that the Solicitor is guilty of professional misconduct on the grounds alleged in the Application, the Tribunal is empowered to make an order for the payment of compensation to the complainant by the Solicitor, subject to the provisions of sections 570, 571, 572 and 573 LPA being satisfied. As leave had not previously been granted, we granted leave to the Complainant to request the making of a compensation order pursuant to s570 (4) LPA.

35 At the hearing, the Solicitor stated that he conceded to the making of an order for compensation in favour of the complainant 'to the extent of the offer made to him by HP'. This appeared to be the compensation claimed by Mr Donnelly in his Submissions to the Tribunal dated 6 February 2013.

However, Mr Donnelly attended the hearing and he advised the Tribunal that he 'wished to make a further statement' in relation to the issue of the compensation that he sought. He then handed to the Tribunal and the Solicitor an unsigned and undated document, comprising approximately 2 pages, in which he set out extensive allegations of negligence against the Solicitor. He also stated (in part):

'After my court case collapsed, I felt distracted and depressed, unable to focus on my new job. I was sleeping badly so I attended my local GP who prescribed anti-depressant medication and referred me to a psychologist for a series of treatments. My medical bills for the 3 month period 6/9/11 to 5/12/11 came to a total of $1,692.00. My doctor declared me unfit for work for a continuous period of 3 weeks but I was unable to return to work. I resigned on the grounds of ill health. Now I am still unfit for work and will have to settle for a lower level of lifestyle than I had planned for.

If I were to get fairness and justice in all of this:

I would be able to bring my matter before the court again, for my case to be heard on its merits. The additional redundancy alone is about $60k

I would receive compensation for the 9 months of my contract that I sacrificed for this matter. This equates to about $71k.

I would receive compensation for the stress and trauma I suffered from appearing in court with no warning, no notes and no legal support. Despite getting medical support and psychological treatment, I am still unable to work.

I had managed any emotional difficulties that arose from my redundancy quite well but it was the consequences of James Leslies (sic) failure to prosecute my case properly that caused me to seek medical and psychological help.'

36 In view of the matters raised in the complainant's further 'Statement', we made the following directions:

(1) The Compensation claimant is to file and serve an Application that particularises the compensation claimed and any evidence in support upon which he intends to rely by 3 May 2013.

(2) The Solicitor is to file and serve a Reply to the claim for compensation and any evidence upon which he intends to rely by 31 May 2013.

(3) Matter is listed for directions on 5 June 2013.

(4) Liberty to apply on 3 days' notice.

37 It is our observation that many of the claims indicated in the complainant's most-recent 'statement' appear to be relevant to a potential claim for damages for negligence against the Solicitor and/or a claim against his Fidelity Fund rather than to a claim for compensation under Section 571(2)(c) LPA. We also note that Section 572(2) LPA provides that a compensation order is not to be made 'in respect of any loss for which the aggrieved person has received or is entitled to receive:

(a) compensation received or receivable under an order that has been made by a court, or

(b) compensation paid or payable from a Fidelity Fund of any jurisdiction, where a relevant claim for payment from the Fund has been made or determined.'

38 There is no evidence before us as to whether the complainant has given notice to the Solicitor of any claim for compensation of the type referred to in Section 572 LPA and, if he has done so, whether that claim has been determined.

39 Accordingly, we note that it is possible that the determination of any request for the making of a compensation order under Section 571 LPA (once properly made) may need to be stood over pending the determination of any alternative remedy that may be available to the complainant in respect of any loss suffered as a result of the solicitor's misconduct. We recommend that the parties properly consider this issue before the directions hearing on 5 June 2013 and suggest that an application under Section 571 LPA should not be listed for hearing until such time as any claim for any alternative remedy has been determined.

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Decision last updated: 18 April 2013