Law Society of New South Wales v Roberts [1999] NSWADT 4 (2 March 1999)

Last Updated: 9 March 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Law Society of New South Wales -v- Roberts [1999] NSWADT 4

REVISION DATE:

DIVISION: Legal Services

APPLICANT:

The Council of the Law Society of New South Wales

RESPONDENT:

Dai Peter Roberts

FILE NUMBERS: 9802

HEARING DATES: 15/12/98, 16/12/98

SUBMISSIONS CLOSED: 16/12/1998

DECISION DATE: 02/03/1999

JUDICIAL MEMBER: J W F Brennan Presiding Judicial Member

LAY MEMBER: R Cox Judicial Member

LAY MEMBER: J Geddes Member

APPLICANT KEYWORDS: Default error in carrying out clients' instructions; Misleading/deceptive/unfair dealing with client; Prescribed statutory/professional rules breach; Professional misconduct - solicitor ; Unsatisfactory professional conduct - solicitor

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Legal Profession Act 1987

APPLICANT REPRESENTATIVE: J S Gleeson of counsel instructed by R J Collins

RESPONDENT REPRESENTATIVE: J W Conomos of counsel instructed by G L Berry

ORDERS: 1. That the legal practitioner be reprimanded.

2. That the legal practitioner pay a fine of $12,000.00 by six instalments of $2,000.00 each the first of such instalments to be paid on or before 30 June 1999, the remaining instalments to be paid at three monthly intervals thereafter.

3. That for a period of twenty four months commencing on 1 April 1999 the Respondent legal practitioner's practice be subject to inspection by a suitably qualified legal practitioner appointed by the Law Society after consultation with the solicitor and that the periodic inspection be carried out once every third month at the Respondent legal practitioner's expense.

4. That within two months the legal practitioner at his own expense enrol and participate in an Introductory Course in the Best Practice Programme conducted by the College of Law and submit his firm for review by a Best Practice independent evaluation certified by the Best Practice Board by 30 November 1999.

5. That the legal practitioner pay the costs of the Law Society as agreed in the sum of $10,500.00, such payment to be made within twelve months of the date of this Order.

DECISION:

1. On 19 January 1998 the Applicant, the Council of the Law Society of New South Wales ("the Society") informed the Tribunal that as a result of the Society's investigation of complaints made under Part 10 of the Legal Profession Act 1987 against the Respondent ("the Solicitor") the Council claims that the Solicitor, while practising as a Solicitor was guilty of professional misconduct and unsatisfactory professional conduct. On the first day the matter was listed for hearing an amended information altering certain of the particulars was filed by the Society with the consent of the Solicitor.

2. The Society alleged that the Solicitor was guilty of seven counts of professional misconduct, five of which were alleged to arise out of his having acted for a client, Jannette Donney ("Donney") and a further two counts out of his acting for Peter McMurray ("McMurray") and that he was also guilty of unsatisfactory professional conduct in another aspect of the McMurray matter.

Ground 1:

3. The first complaint in relation to Donney arose out of a letter dated 21 March 1996 sent by the Solicitor to the Society in response to the Society's letter of 1 December 1995. Donney instructed the Solicitor to make a third party claim for damages for injuries she sustained in a motor vehicle accident on 1 November 1984. Those instructions were given to the Solicitor on or about 21 September 1989. It was not until 31 October 1991 that the Solicitor commenced proceedings in the District Court on behalf of Donney.

4. The Solicitor advised the Society that he was not instructed by the client until after November 1990, that he proceeded as quickly as possible to commence proceedings, that he was required to make certain enquiries to ensure that proper particulars were supplied, that the Statement of Claim could not be served as the Defendant was a company which no longer existed and that Donney was informed that the Statement of Claim could not be served on the Defendant since it no longer existed.

5. Subsequently Messrs Eakin McCaffery Cox responded on behalf of the Solicitor. The letter purports to explain the conduct and the inactivity of the Solicitor in relation to various matters raised concerning Donney. On this issue, a letter which is dated 17 October 1996 states:

"You will see that the file was opened on 21 September 1989. When our client wrote his letter of 21 March 1996, he advised you that he was not 'instructed until after November 1990' and this was obviously an error. The reason why one might understand such an error being made, becomes evident when one has an understanding of the chronology".

6. The Solicitor's instructions to his advisers were clearly misleading and, based on those instructions, the reply itself is misleading. The issue was raised by the Society in the clearest of terms:

"Please tell me when you first opened your file in respect of Ms Donney's third party claim?"

7. It stretches the imagination to fathom how an understanding of the chronology of events could lead the Solicitor into error in asserting the date on which he opened his file. The Tribunal finds this was simply not an error, as the Solicitor sought to have the Society believe on 17 October 1996. The Society alleged that the representations made by the Solicitor in his letter of 21 March 1996 were misleading and were intended to mislead the Society and the Solicitor, in his reply filed on the second day of the hearing, admitted this.

8. The Society further claimed in relation to the first ground, and the Solicitor admitted:

(i) That in September 1989 the Solicitor's instructions included the name and address of the driver of the vehicle at fault in the collision and the registration number of the vehicle;

(ii) The only enquiry made by the Solicitor to identify the owner of the vehicle was by his letter of 24 June 1992;

(iii) The Solicitor did not, prior to 21 March 1996, have any information to the effect that the vehicle owner was a company that no longer existed; and

(iv) At no time prior to October 1995 did the Solicitor advise his client that the Statement of Claim could not be served as the Defendant no longer existed.

9. The replies given by the Solicitor initially, and indeed which were substantially confirmed on his behalf in the subsequent responses from his then solicitors constitute grave and serious misconduct. Those intentionally misleading statements to the Society were disgraceful and dishonourable and constitute professional misconduct.

Ground 2:

10. The second complaint alleged that the Solicitor engaged in misleading conduct in relation to Donney. The particulars alleged that:

(i) The Solicitor had represented to the client that he had lodged a claim on her behalf and all that she had to do was to wait for the Solicitor to contact her with the hearing date;

(ii) That at the time of making the representations, the proceedings which the Solicitor had commenced were statute barred; and

(iii) In the alternative, when the Solicitor made the representations to the client, it was his belief that the District Court proceedings could not be served.

The Society claims, and the Solicitor admits, that in making these representations to Donney, the conduct of the Solicitor was both misleading and intended to mislead the client.

11. In his oral evidence the Solicitor admitted (T 56) that when he filed the Statement of Claim he was aware that it was out of time. He further gave evidence of his belief that he could seek leave to file outside the six year period if there were satisfactory reasons but he admitted that he did not make that application. He explained this as follows:

"Well, I thought the situation would be that if you filed the Statement of Claim, it was accepted by the Court because the Court certainly was aware that the cause of action, from seeing the Statement of Claim, arose in November of 1984. I thought that what would happen is that the Defendant would file a Defence claiming a limitation problem and that it would then be raised at any particular subsequent prehearing before any hearing of the claim itself."

12. The administration of justice requires that the public be able to engage an independent legal practitioner and be able to rely on the honesty and integrity of that legal practitioner. There is a complete lack of candour in the Solicitor's behaviour, and a monstrous misrepresentation to the client, as the Solicitor knew he was out of time and consciously did not tell the client of this but rather said, in effect, that it was a matter of waiting for the hearing date. The Tribunal finds that this misleading conduct, which was admitted by the Solicitor, clearly constitutes professional misconduct by the Solicitor.

Ground 3:

13. The third complaint alleged failure by the Solicitor to commence proceedings within the limitation period. The Society relied upon the fact that the limitation period expired on or about 1 November 1990 and proceedings were not commenced until 31 October 1991.

14. The Solicitor acknowledged that at the time of filing the Statement of Claim he was aware that the proceedings were statute barred and that he did not make any application for extension of time. This ground is before the Tribunal as a separate and distinct ground from that of delay (ground 5). There is no doubt some overlap but the mere fact that this Statement of Claim was filed outside the limitation period which does appear to be the Society's case does not satisfy the Tribunal that the allegation of professional misconduct is appropriate. It is in error to suggest that, by itself, failure to commence proceedings within the limitation period constitutes professional misconduct. The omission, of itself, is almost inevitably one that will give rise to a claim for negligence but one cannot treat negligence as synonymous with professional misconduct. Clearly, the Solicitor knew on 31 October 1991 that the limitation period had expired. He had the opportunity to commence proceedings within time and the short period remaining between the date on which he received instructions and the date the limitation period expired should have sounded the loudest possible alarm bells for the Solicitor. His failure to commence proceedings in these circumstances, in the view of this Tribunal, constitutes unsatisfactory professional conduct and not professional misconduct as claimed by the Society. The Tribunal makes this finding notwithstanding the reply of the Solicitor which did not dispute any of the grounds alleged.

Ground 4:

15. The fourth ground related to the failure of the Solicitor to advise his client on the progress of the matter. On 20 December 1990, 3 October 1991, 13 April 1992, 1 April 1993, 16 August 1993 and 27 September 1993, the Solicitor conferred with Donney. The Society alleges that the Solicitor did not, in any of these conferences, nor on any other occasion, advise the client that the District Court proceedings were statute barred, and further or in the alternative that he did not at any of those conferences or any time prior to October 1995 advise his client that the District Court proceedings could not be served because the defendant no longer existed.

16. The Solicitor was asked some questions on this issue (p56 and 57 of the Transcript)

"Q: Did you at any of those conferences say to Miss Donney 'Your proceedings are out of time, they are statute barred'?

A: I don't believe, no.

Q: You consciously didn't say it?

A: That's right.

Q: Can you explain how and why you adopted that approach with your client?

A: Well, I believe simply because I was hoping that the matter could have been revived out of time by the late filing of a Statement of Claim and I didn't want to give her any bad news"

17. It is clear that the conduct of the Solicitor in relation to the statute was both misleading and intended to mislead his client. It was a conscious act and an act of deception. It is not the role of a Solicitor to avoid imparting "any bad news". The duty to the client and the rights of the client have been ignored. This is far worse than conduct which falls short of acceptable standards. It is not suggested that the Solicitor was unaware of the limitation period. His instructions to his then Solicitors on this issue are quite clear from the letter of 17 October 1996 to the Society in relation to the conference on 3 October 1991:

"We are instructed that at this conference, our client informed Ms Donney of the problems with issuing a Statement of Claim when particulars of the Defendant or the registration of the offending vehicle were not available. Nevertheless, the Statement of Claim was filed, albeit within twelve (12) months of the statute of limitations period, but in the knowledge that the legislation at that time made provision for leave to be obtained to proceed within twelve (12) months of the expiration of the limitation period".

18. It is alarming that this acknowledgement is hard to reconcile with the oral evidence of the solicitor to the Tribunal quoted in paragraphs 11 and 16 of these reasons.

19. The conduct is clearly totally unacceptable and disgraceful. There were in reality no existing proceedings that could be resolved in the client's favour and this basic fact was kept from the client. The ground of professional misconduct is clearly established, as the Solicitor admits.

Ground 5:

20. The fifth complaint arising out of the Donney matter is in relation to the delay in that the Solicitor took instructions on or about 21 September 1989 and failed to commence proceedings prior to 1 November 1990. After filing the Statement of Claim on 31 October 1991, the Solicitor failed to further prosecute the claim, did not effect service, did not take any steps to seek an extension of the limitation period, and took no further steps to prosecute the claim.

21. The Affidavit of Donney makes it quite clear that this was not a delay which could in part at least be explained by some mitigating circumstance. There was no black hole into which the matter fell, no lost file, no disappearing client. There were five conferences between the Solicitor and the client between the date the Statement of Claim was filed in 1991and 1993 yet the Solicitor took no action to resolve his client's claim or prosecute the court proceedings. Donney in her Affidavit says (paragraph 15):

"At the beginning of 1994, I recall my words to the following effect to Mr Roberts:

'Has my claim been lodged?'

Mr Roberts said words to the following effect to me:

'It has. All you have to do is wait for me to contact you with a hearing date.' "

22. The delay covers failure to commence proceedings within time, failure to seek an extension of statutory period and then an ongoing failure to do anything thereafter. It is hard to believe that the Solicitor could have expected his reassuring statement to be true, even if he had filed the Statement of Claim within the limitation period. It is proper for the Solicitor to expect to contact his client between the issue of process and the listing of the case for hearing so that the Solicitor has instructions, for example, on some issue of particulars or to provide details of medical appointments and obtain details of the client's changing health, employment or general financial circumstances while waiting for the hearing date. The facts are admitted and the matter is serious. The Tribunal is comfortable that this ground constitutes, as the Solicitor admits, professional misconduct and finds accordingly.

Ground 6:

23. The sixth complaint is in relation to allegation of gross delay in the handling of the McMurray claim. It was acknowledged that in 1986 the Solicitor received instructions from Mr McMurray to make a claim for damages for personal injuries sustained in a motor vehicle accident on 26 July 1986.

24. It appears that a Statement of Claim was issued in 1987 and particulars under Part 12 Rule 4A served on or about 24 May 1988. Subsequently the matter was fixed for Arbitration on 24 November 1989, the Arbitration was adjourned and thereafter the Solicitor took no further steps in relation to the claim.

25. In the letter from his then solicitors, Messrs Ekin McCaffery Cox, of 16 October 1996 the Solicitor conceded that, after unsuccessful attempts to contact his client while holidaying in the Burleigh Heads area over the Christmas recess in 1989, the client wrote five letters to the Solicitor, the last of which was dated 4 April 1991 and also sent the Solicitor a tape recording said to include information about his case in a letter dated 7 January 1991. It appears that the Solicitor lost the tape and did not reply to the five letters.

26. Subsequently on 7 March 1995 another firm of Solicitors contacted Mr Roberts and requested that the file of papers be sent to them.

27. The Society alleges that in the proceedings there was a period of some six years when nothing was done, being from November 1989 until the change of Solicitor initiated in 1995. The unsuccessful efforts of the Solicitor to contact the client over the Christmas recess in 1989, if that is treated as action by the Solicitor, really only reduces the period of delay by a month. The delay is a gross one, it is admitted and the Tribunal finds that it constitutes professional misconduct.

Ground 7:

28. The seventh complaint relates to a breach of Section 152(1) of the Legal Profession Act by the Solicitor relating to his client Donney. The relevant portions of Section 152 are as follows:

"152

(1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following:

(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,

(b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice,

(c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.

(1A) A Council or the Commissioner may inspect any document produced before the Council or Commissioner under this section and may retain it for such period as the Council or Commissioner thinks necessary for the purposes of an investigation in relation to which it was produced. A Council or the Commissioner may make copies of the document or any part of the document.

(2) If a legal practitioner against whom a complaint is made claims a lien over documents relating to the matter the subject of the complaint, the Council or the Commissioner may require the legal practitioner to waive the lien if satisfied it is necessary for the orderly transaction of the client's business.

(3) A requirement under this section is to be notified in writing to the legal practitioner and is to specify a reasonable time for compliance.

(4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.

(5) A legal practitioner must not be mislead or obstruct a Council or the Commissioner in the exercise of any function under this Division. The wilful contravention of this subsection is capable of being professional misconduct."

29. On 16 January 1996 the Society wrote to the Solicitor requesting a response to the client's complaint within fourteen days. On 18 April 1996 the Professional Conduct Committee ("the Committee") resolved pursuant to Section 152 (1) to require the Solicitor to provide the Council with his response to the Council's letter of 16 January 1996 within fourteen days. On 24 April 1996 the Society advised the Solicitor by letter that the resolution of 18 April 1996 had been passed and this required the Solicitor to provide a response to the letter of 16 January 1996 within fourteen days. The Solicitor's attention was drawn in that letter to the terms of Section 152 (4).

30. From the material before the Tribunal it is apparent that there were other letters to the Solicitor from the Society, both before the letter of 16 January 1996 and then between that date and 24 April 1996. Subsequently on 19 July 1996 the Society wrote again to the Solicitor advising the matter would be raised again before the Committee on 8 August 1996 and requesting that the Solicitor advise if there was any reason why he had not been able to comply with the earlier resolution.

31. The Solicitor did not respond and on 8 August 1996 the Committee resolved that the Solicitor be informed that issues involved in the complaint amounted to professional misconduct and that his response within fourteen days was invited. In addition, it was resolved that the Solicitor be informed that, subject to any submissions he made, the Committee was satisfied that there was a reasonable likelihood that he would be found guilty under Section 155(2) of the Act. Clearly that subsection which relates to liens is incorrect and the reference intended by the Society was S152(4). The decision of the Committee was advised to the Solicitor by letter dated 15 August 1996 but the Solicitor did not respond. The Solicitor received a further notification by letter dated 4 September 1996 advising the matter would be raised at a Committee meeting on 3 October 1996 but once more he did not respond.

32. By letter of 4 September 1996 the Society notified the Solicitor that the matter would be tabled before the Committee on 3 October 1996 and indicated in that letter that the Committee would "be asked to consider the issue as to whether you should be referred to the Tribunal for statutory professional misconduct pursuant to Section 152(4) of the Legal Profession Act".

33. On 17 September 1996 the Society wrote once more to the Solicitor with copies of some of the prior correspondence, pointing out that no response had been received. That letter stressed again the effect of Section 152(4) and made it clear that consideration was being given to referring the Solicitor to this Tribunal.

34. The Solicitor ultimately did respond through his solicitor Miss MacDougal by letter of 2 October 1996. This letter is not before the Tribunal but from the Society's response on the following date it appears clear that the letter of 2 October 1996 sought additional time to comply.

35. The next letter, being the Society's letter of 3 October 1996 to Miss MacDougal, indeed makes it clear that the Solicitor has been given another chance. The relevant part of that letter, which is followed by details of the precise matters to which the Solicitor is requested to respond, is as follows:

"As advised, I tabled your letter before the Committee at its meeting today. The Committee has decided to give your client a further period of fourteen (14) days from today to respond to the above two matters. The Committee has asked me to emphasise that the fourteen (14) day period must be strictly complied with and that your client's response should be received by me by 5 p.m. on 17 October 1996 at the very latest. No further extensions of time will be granted.

To assist you, set out below are the outstanding matters that your client should respond to:"

36. In accordance with the provisions of Section 152 a Notice was served and that is admitted. This Section requires that the notice in writing specify a reasonable time for compliance and that was done. However, the Society, by its letter of 3 October 1996 extended the time for the Solicitor to respond to 5 p.m. on 17 October 1996. Miss MacDougal on behalf of the Solicitor supplied the information within the extended time allowed by the Society by letter dated 17 October 1996, sent by courier. The copy of that letter produced to the Tribunal by the Society is stamped by the Society "Received 17 Oct 1996". This ground cannot, on these facts, be sustained and is dismissed.

Ground 8:

37. The final complaint claims that the Solicitor was guilty of unsatisfactory professional conduct in relation to his delay in handing his file of papers for Mr McMurray to the client's new Solicitors. A request for the file was made to the Solicitor by letter of 27 October 1994. This was followed by contacts with the Solicitor's office on 18 November 1994, 31 January 1995, 21 February 1995, 28 February 1995, 3 March 1995 and 7 March 1995, seeking release of the file. It is alleged and admitted that the file was not released until 15 September 1995. This delay is not acceptable, the complaint is admitted and the Tribunal finds that the delay of the Solicitor clearly amounts to unsatisfactory professional conduct.

38. Apart from the non-exhaustive definition of professional misconduct in the Legal Profession Act the common law test still applies and the test formulated by Lapes LJ in Allinson v The General Council of Medical Education and Registration (1894) 1QB 750 at 763 in a medical case (since approved as a test of professional misconduct by legal practitioners) has for good reason been long accepted.

"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 shewn 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'.... "I do not propound it as an exhaustive definition".

39. The conduct and the delays which found the various allegations of professional misconduct which the Tribunal has found proved against the Solicitor fall comfortably within the Allinson test.

40. Accordingly, of the eight grounds alleged, the Tribunal finds that five of these matters constitute professional misconduct, two constitute unsatisfactory professional conduct, while the remaining ground has been dismissed.

Solicitor:

41. The Solicitor is a sole practitioner. He was born in Liverpool and has lived all his life in Sydney's Western Suburbs, where he now practises. He lives nearby in the Blue Mountains and evidence was elicited by his Counsel of his family background. His father was a Fitter and Turner and, from the questions asked by his Counsel, it is no doubt a matter of pride for the Solicitor and his family that he attended Sydney University and obtained his Degrees in Arts and Law before being admitted to practice on 10 July 1981. He married in the year prior to his admission and lives with his wife and three children, the youngest of whom is aged 8.

42. The Solicitor was previously involved in a hearing before the Legal Services Tribunal ("the prior Tribunal") in a matter which was heard on 1 and 2 July 1996 and in which reasons for determination and orders were handed down on 18 March 1997. In those proceedings the Solicitor was represented. The complaints all alleged professional misconduct and related to:

i. Gross delay in and about the discharge of his retainer;

ii. Failing to advise or inform his client of steps taken to advance the proceedings commenced on her behalf and the status of the proceedings;

iii. Gross delay in relation to the administration of an estate;

iv. Falsely purporting to attest an oath and witnessing the signature of a deponent when he was not in fact present to administer the oath or to witness the signature;

v. Misleading the Society in response to a request for information.

vi. In the alternative, acting recklessly and indifferently to ensure the information and responses provided to the Society in relation to the enquiry were accurate and not misleading; and

vii. Gross delay in the settlement of a sale by failing to file an Application for Probate within a reasonable time and failing to respond to enquiries from a fellow practitioner acting for third party as to the progress and status of the Application for Probate when knowing that the settlement of the sale was conditional upon the Grant of Probate.

43. The prior Tribunal found the first two complaints (which were contested) established. The third complaint was conceded insofar as the Solicitor admitted he was reckless and careless and that this had the effect of misleading the Society but he denied that he deliberately misled the Society. In this context, it is no doubt worth quoting as the prior Tribunal did in 1997, in the other matter involving the Solicitor, from the Judgment of Clarke J in O'Reilly -v- Law Society of NSW [1988] 24 NSWLR 204 at 230.

"It should be said at once that a finding that a Solicitor has deceived a Court or Tribunal provides compelling evidence of his unfitness to practise. The profession is an honourable one and nothing less than complete honesty and candour in all instances is acceptable. The client should be entitled to rely on the truthfulness of all that he is told. The Court should likewise be entitled to accept without question assertions made by a Solicitor. If a Solicitor is found to have deliberately lied to a client or to the Court then he has failed, in a fundamental respect to adhere to the required standards."

44. The prior Tribunal was not satisfied that the Solicitor had deliberately misled the Society.

45. In relation to the fourth complaint the Solicitor admitted he was not present when the four Affidavits were signed and in relation to the fifth complaint the prior Tribunal found the Solicitor did mislead the Society but was not satisfied that this was done deliberately and accordingly found him guilty on that count of unsatisfactory professional conduct and a similar finding was made in relation to the conduct alleged in the sixth count where the prior Tribunal found that the Solicitor did act recklessly and indifferently in ensuring that the information and responses provided to the Society in connection with the enquiry were true and accurate and not misleading.

46. Finally, the prior Tribunal found the Solicitor was guilty of gross delay and failed to respond to enquiries made by a fellow practitioner and that he was guilty of professional misconduct.

47. The prior Tribunal in that matter referred in the reasons for decision to the character evidence supplied in the form of Statutory Declarations by Peter John Wood and a letter from Mr William Beilby, both of whom attested to the honesty and integrity of the Solicitor. Mr Beilby, indeed, is quoted in asserting that the experience of that prior matter would not be repeated. Of course, there is an overlap of times between the matters which were the subject of the determination of 1997 and the issues before the Tribunal now.

48. The prior Tribunal found that the Solicitor was reckless and careless and his office management practices were deficient. It sought to send a strong message to the profession that the duty of honesty and frankness on the part of a Solicitor extends to being honest and frank in his responses to Law Society correspondence. The Solicitor was fined $20,000, and ordered to attend a risk management course and to pay the costs of the Society.

49. The events before the prior Tribunal in July 1996 related to the activities of the Solicitor at various dates between 1984 and 1987, during 1992 and subsequently in between 1989 and 1991 up to 1992. The decision in those proceedings was handed down on 18 March 1997.

50. These present proceedings were more protracted than necessary by reason of the Solicitor initially appearing for himself without clearly facing the issues involved and without any evidence in support of his situation or in mitigation of what he had done.

51. During the first day the seriousness of his position was pointed out to the Solicitor on a number of occasions. He indicated that he had previously taken advice. The nature of the advice was set out on Page 21 of the transcript:

"The advice I received is simply to come along and to avoid any extra costs, any particular burden to any other people and particularly, I suppose, embarrassment to myself in telling people about the proceedings, to come along by myself and seek the mercy of the Tribunal. In view of the fact that you have made comment on the fact that a penalty might be imposed by you is striking off, it has certainly caught me by surprise and if I had been aware that the proceedings might have led to that, Mr Chairman, I certainly can advise you that I would not have come along unrepresented."

52. The listing of the matter for a two day hearing made it possible for there to be some adjournments and the Solicitor sought and obtained advice. The fact that the matter was listed for what appears at first to have been an excessive period was a blessing in disguise as far as the proper resolution of the matter was concerned. There was time for adjournment, for advice and action to properly present the matter. The possibly apparent inefficiency in time in fact enhanced the capacity of the Tribunal to resolve the matter, which would not have been possible without an expensive lengthy adjournment under some case management systems.

53. It was not apparent to the Tribunal initially that the Solicitor had previously been before the Tribunal on other matters. At the late stage at which he obtained representation, his position was clearly one of great risk as the evidence called into question his fitness to practice. The Solicitor was most fortunate in obtaining, on the shortest of notice, the services of Mr Conomos of Counsel and Mr Berry, Solicitor. The Tribunal is not privy to the actual hours involved on short notice in taking proper instructions, preparing the Affidavits and generally presenting a difficult case in a most professional manner. The Tribunal is indebted to these gentlemen for their efforts and the Solicitor is most fortunate to have had their assistance.

54. Perhaps it is indicative of the Solicitor's embarrassment and his inability to face the realities of the situation in which he was placed by his oral evidence (T39) that it was only on the evening of 15 December 1998 that he informed his wife of these proceedings.

55. The fitness to practise of the Solicitor is indeed something that has concerned the Tribunal. The Solicitor has been foolish in the extreme but it is apparent that the matters complained of fall generally within the period of the matters that were previously before the prior Tribunal and the Solicitor has paid a substantial fine already for part of what occurred prior to 1997. He has, in addition, been the Defendant in proceedings brought against him by his former client Ms Dooney who recovered a verdict which has been paid. He has also undertaken and applied the lessons of a risk management course. He has clearly improved his office procedures. He has made greater use of Counsel which, in view of his problems before 1997 appears to indicate a greater awareness of his obligations, capacities and limitations. He consults with his peers now.

56. The Tribunal feels that this Solicitor, despite his shortcomings in the past, has much to offer his clients. He has been foolish, he has procrastinated and he has ignored alarm bells that must have been almost deafening, but the Tribunal finds merit in the man who has many positive qualities that have been of value to the community in the past.

57. The role of the Tribunal is primarily one of protection to the community. The Tribunal believes that Mr Roberts is worthy of another chance. The Tribunal would be uncomfortable to simply have this chastening experience as its insurance that there will be no repetition of this behaviour by the Solicitor after December 1998. There have been other unspecified complaints against the Solicitor but clearly those are matters that remain unresolved and which will need to be dealt with, if appropriate, at another time. These concerns are addressed by the Order for lengthy supervision of his practice and the order that he undertake further training. In calculating the fine, the Tribunal has looked at the fine previously imposed and taken into account the time sequence of the events before us and the events before the prior Tribunal in 1997. The failings of the Solicitor which led to the previous hearing were substantially the same or at least very similar to the faults or weaknesses (also in the period prior to 1997) which underlie the subject matter of these present proceedings.

58. The events now before the Tribunal are events involving this solicitor with his attitudes and procedures as they were prior to the decision of the Legal Services Tribunal in March 1997. The Tribunal is further fortified in reaching its decision by an impressive range of character witnesses who are supportive of the Solicitor. It is a serious step for a practitioner to provide an Affidavit in support of another practitioner who faces allegations of professional misconduct. Those character witnesses testify on important matters and their evidence requires careful consideration by the Tribunal. His peers who have sworn Affidavits in support of the practitioner have discharged a heavy responsibility to the community and to the administration of justice.

59. Kishhor Nand Govind, formerly President of the Fiji Law Society and a former Judge at the Supreme Court of Fiji, and now a Crown Prosecutor at Liverpool, deposed as to having read the information in this matter which related to facts that he regarded as aberrations. His Affidavit speaks of the ability, affability, dedication, competence, sincerity and honesty of the Solicitor and of his view of the Solicitor's fitness to practice.

60. Craig Edward Coburn, Registrar of the District Court Criminal Registry at Campbelltown swore an Affidavit detailing his knowledge of the allegations and of the Solicitor's competence, professionalism, commitment and the fact that he was well regarded by both the Judiciary and the legal profession.

61. There is further supporting Affidavit material including an Affidavit from Rory Evans, Deputy Registrar of the Local Court at Parramatta, Douglas Alfred Marr and Warwick Robert Ward (both Barristers-at-Law) and a financial broker, Richard Anthony Oliver.

62. The impact of the character evidence is very strong. The Tribunal sees the character and standing of the Solicitor in December 1998 as being enhanced from his standing in 1996. The situation is not perfect and the Solicitor while he has clearly, in the view of the Tribunal, benefited from the Risk Management Course that he undertook, he is still a source of real concern to the Tribunal.

63. The prime duty of the Tribunal is not to punish but to protect the community and it needs to send strong messages from time to time to practitioners in relation to conduct. No doubt the people of New South Wales and the Commonwealth of Australia have invested heavily in the education of the Solicitor now before the Tribunal, as indeed, they have invested in all members of the community who have had the benefits of our education system. The Tribunal has considered carefully the question of the solicitor's continuing right to practise, particularly in the context of the events now before the Tribunal having occurred before the prior hearing and the evidence of the rehabilitation to date of the Solicitor. The training and education of the Solicitor should not, in the Tribunal's view, be wasted and the Solicitor should be given the opportunity to continue practice, subject to his undertaking of the Best practice course and to his practice being supervised as detailed in the Orders.

64. The fine which has been imposed upon the Solicitor has been assessed with the Tribunal taking into account the fine he has previously paid for misconduct over approximately the same period of time, the damages that have been paid in relation to the claim against him by Donney and the costs that he has been ordered to pay in relation to both Tribunal matters.

65. The costs in this present proceeding have been agreed after the parties took into account for the Tribunal's indication that the costs incurred in relation to the Affidavit of Donney which was not served upon the Solicitor should be disallowed. The time for payment of the fine and costs has been scheduled in an effort to take into account the costs of the supervision of the practice, the expense of the best practice course, costs which the Solicitor has incurred for himself in the proceedings and his general financial position as disclosed in the proceedings.

66. The community and, indeed, the Solicitor's family have deserved better from the Solicitor than he has delivered in these various instances in the past but the Tribunal feels that he is can serve the community in the way spoken of so glowingly by his peers. The Tribunal trusts that henceforth this Solicitor will fulfil his capacity of providing long and honourable service to the community.