Law Society of New South Wales v di Bello & Legal Services Commissioner v di Bello [2000] NSWADT 13 (3 February 2000)

Last Updated: 29 February 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Law Society of New South Wales -v- di Bello & Legal Services Commissioner -v- di Bello [2000] NSWADT 13 revised - 24/02/2000

PARTIES: APPLICANT (9819)

Legal Services Commissioner

APPLICANT (9822 & 992021)

Council of the Law Society of New South Wales

RESPONDENT

Tino di Bello

FILE NUMBERS: 9819

9822

992021

HEARING DATES: 10/10/98, 29/10/98, 30/11/98, 01/03/99, 05/08/99

SUBMISSIONS CLOSED: 05/08/1999

DECISION DATE: 03/02/2000

BEFORE: Fox R - Judicial MemberPheils J - Judicial MemberGieltzelt R - Member

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED:

APPLICATION: Default error in carrying out clients' instructions

Misleading/deceptive/unfair dealing with client

Prescribed statutory/professional rules breach

Professional misconduct - solicitor

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANTS

P Kellow, solicitor, for Legal Services Commissioner

J Shevlin, solicitor, instructed by R J Collins for Law Society of New South Wales

RESPONDENT REPRESENTATIVE: RESPONDENT

C Simpson, barrister

Castrission & Co (solicitors)

ORDERS: 1. That the Practitioner not be issued with a Practising Certificate until 15 May 2002.

2. That the Practitioner not be issued with a Practising Certificate until he establishes to the satisfaction of the relevant Council that he is medically and psychiatrically fit to practise as a solicitor and, that he has undertaken an appropriate risk management course and that he has established to the relevant council that he has undertaken appropriate work of a law related nature, or appropriate studies or other courses to have maintained legal knowledge and expeertise.

3. That he not practise in personal injury law until he establishes to the relevant Council, by appropriate medical and psychiatric certification that he is fit so to do.

4. That upon the Practitioner being issued with a Practising Certificate and commencing ful time practice (whether as employee or principal) his practice be inspected by an appointee of the relevant Council at 3 consecutive 6 monthly intervals.

5. That the practitioner pay the costs of the Law Society in an amount, and at intervals to be agreed between them, and filed with the Tribunal papers, if no agreement, liberty to apply.

Reasons for Decision:

THE INFORMATION

1 These proceedings were commenced by an Information filed by the Legal Services Commissioner ("the Commissioner") on 15th June 1998 as matter number 19 of 1998. That Information was amended on 1st March 1999 and it then alleged that the Defendant, Tino Di Bello, ("the Practitioner"), whilst practising as a solicitor at Liverpool was guilty of professional misconduct in dealing with the affairs of his clients Theresa Bigeni, Sam Bigeni and Barry Foster.

2 On 10 July 1998 the Council of Law Society of New South Wales ("the Society"), filed an information (matter no 22 of 1998) which alleged that Tino Di Bello was guilty of further professional misconduct whilst in the same practice in respect of his clients George Verykios, Ezzedin Elkojje, Christine Bonnici, and Carmelo and Vincenza Bruno.

THE PROCEEDINGS

3 Matter number 19 of 1998 first came before the Tribunal on 19 October 1998, but there was no appearance of or for the Practitioner. Mr Lynch, for the Commissioner tendered affidavits and correspondence to prove service of the Information on the Practitioner. Evidence was given by Philip Kellow, instructing solicitor for the Commissioner, of inquiries made at the Tribunal's direction that morning about the Practitioner's whereabouts; the Practitioner was apparently attending to a matter at Liverpool Local Court.

4 The Tribunal then made orders:-

1) Finding pursuant to s152(4) of the Legal Profession Act that the Practitioner is guilty of professional misconduct in respect of two failures to respond to a notice validly issued and served pursuant to that section, being notices relating to the Bigenis and Foster.

2) That the Tribunal was satisfied that the Practitioner was attending to his professional duties that morning and there was no valid reason why he was not before the Tribunal, and pursuant to s171C(1) (b) that the Practitioner's practising certificate be cancelled forthwith.

3) Pursuant to s171C(1) (c) that the Practitioner not be issued with a practising certificate until 15 May 2000 or such earlier date as may be directed in view of such evidence which the Practitioner or the Informant is at liberty to bring on 29 October 1998 at 10am.

4) Directing the Registrar to inform both the Practitioner and his employer of these orders and reasons by facsimile that day.

5) Directing the Registrar to attempt to immediately inform the Practitioner of these orders and reasons by telephone.

6) Adjourning the hearing until 29 October 1998.

5 On 29th October 1999 the Practitioner, represented by Peter Neil SC, instructed by Mr John Castrission, appeared to matter number 19 of 1998 and also to matter number 22 of 1998. Mr Lynch again appeared for the Commissioner and Mr Ray Collins appeared for the Society in matter number 22. The evidence in matter number 22 was not ready for a final hearing, but the parties did agree on a pleading timetable, and both matters were set down for further hearing on 30th November 1998.

6 The Tribunal was satisfied that all files referred to in matter number 19, and most files referred to in matter number 22, had been surrendered by the Practitioner and made available to the representatives of the various clients, and that the Practitioner was not in breach of the then existing cancellation order made in matter number 19, although he was (quite properly) attending at his former office to brief the solicitor who had taken over his matters.

7 At the request of the parties the Tribunal made orders pursuant to Section 167(4) to allow the further proceedings in the matters to be heard together.

8 At that point in time the Tribunal expected to have to consider all of the evidence in matter number 22 (and such evidence as the Practitioner might care to bring in matter number 19 (presumably) to seek to reduce the length of the period of cancellation).

9 On 30 November 1998, the Practitioner admitted the six matters in the Society's Information, but Counsel for the Practitioner filed an affidavit of Mr Castrission annexing medical reports by Dr Klug and Dr Cassimatis in support of an application for further adjournment. The Practitioner also gave evidence in this regard. The thrust of the application was that the Practitioner was suffering from a mental condition that caused him to procrastinate and not face issues, and that had resulted in his legal representatives having insufficient instructions to proceed. The Tribunal adjourned the matter to 1 March 1999 for hearing, and a further timetable was set.

10 On 1 March 1999 the Commissioner (with the consent of all parties) filed the amended Information.

11 At the commencement of this particular day's hearing Mr Shevlin (for the Society) had indicated that certain matters were still being investigated, and that he might wish to file a further Information. Nothing firm was resolved in this regard, but the Tribunal, gave leave to the Society, to raise further matters within a reasonable time in the future.

12 The Practitioner then tendered filed affidavits sworn by himself, his solicitor John Castrission, his psychiatrist Mary Jurek, his former partner and employer Tass Johnson solicitor, and another Liverpool solicitor Michael Francis Doherty. The Practitioner and Mary Jurek were cross examined, and submissions were made.

13 The Tribunal then adjourned to consider.

14 Subsequently, on 15th July 1999 at the request of the Society, a further Information was filed (number 2021 of 1999) and there was a further hearing on 5th August 1999, to amend some of the matters raised in matter number 22, and to raise new matters of complaint.

15 The result of the new Information filed (matter number 2021 of 1999) taken together with matter number 22 was as follows:-

1. Verykios:- motor vehicle personal injury, failure to respond to Section 152 Notice

2. Elkojje:- a motor vehicle personal injury matter, "grew" from two Section 152 failures to respond, to gross delay and neglect, failure to advise of progress, delay in releasing file, attempting to mislead client

3. Bonnici:- motor vehicle personal injury, "grew" from one failure to respond, to 152 Notice to gross delay and neglect, failure to advise client of progress, attempting to mislead client

4. Carmelo and Vincenza Bruno:- two instances of delay in litigation of tenant default

5. Bruno Carmelo:- delay in litigation in tenant default

6. Bruno Carmelo:- failure to respond to Section 152 Notice

16 New matters raised by matter 2021 of 1999 were:-

1. Wilson:- a motor vehicle personal injury matter, attempt to mislead District Court, gross delay and neglect, attempt to mislead Society, fail to inform client of progress

2. Valanidas family:- four separate motor vehicle personal injury matters, gross delay and neglect

3. Con Gacevski:- Workers Compensation injury claim, delay

5. Frank Colaiacolo:- motor vehicle personal injury, gross delay, failure to advise of progress and attempting to mislead client.

17 The Practitioner then gave further evidence and there were submissions by Mr Simpson for the Practitioner and Mr Shevlin for the Society.

FACTS

Matter number 19 of 1998

COMPLAINT BY THERESA AND SAM BIGENI

18 Mrs Bigeni was involved in an accident on her way to work on 22 November 1985. She consulted the Practitioner in December 1985. Proceedings were not instituted, and the matter became statute barred on 21 November 1991. The Practitioner did not inform Mrs Bigeni of the statutory failure of her cause of action, but, instead, as late as March or April of 1996, a conference was arranged by the Practitioner with counsel and Mrs Bigeni to discuss the case. It seems little happened at this meeting and Mrs Bigeni was advised that she would be contacted in two weeks. She was not, and she arranged to see the Practitioner on 6 August 1996, who then advised that in a few days he would know what was happening and would call her back. He did not do so.

19 Mr Bigeni also had a Workers Compensation claim which arose on 28 May 1986. He first saw the Practitioner about the matter on 15 December 1987. Proceedings were not instituted by the Practitioner, and the matter became statute barred on 27 May 1992. Mr Bigeni was not advised at any stage that the proceedings were barred.

20 Mr and Mrs Bigeni made a complaint to the Legal Services Commissioner on 2 September 1996.

21 The Commissioner wrote to the Practitioner on 6 September 1996, referring to the Bigeni complaints and asking the Practitioner to take steps to resolve the dispute without further intervention within 30 days. On 17 December 1996 the Commissioner wrote to the Practitioner, there having been no resolution of the matter, requiring him pursuant to section 152(1) of the Act to provide a written explanation. Further correspondence issued from the Commissioner over the next year but the Practitioner generally failed to comply with the requests, and failed to comply with a final deadline of 5pm 13 February 1998.

COMPLAINT BY BARRY FOSTER

22 Mr Foster was in a motor vehicle accident on 12 March 1986, and retained the Practitioner on 14 March 1986. No proceedings were instituted and they became statute barred on 11 March 1992. The Practitioner did not ever advise Mr Foster of the statutory expiry. In November 1996, Mr Foster instructed new solicitors, Firths, who sent an authority to the Practitioner on 12 November 1996. On 30 April 1997 Firths complained to the Legal Services Commissioner that they still had not received the file.

23 The Commissioner wrote to the Practitioner on 28 May 1997 and 20 June 1997. The Practitioner did not reply. On 18 December 1997 the Commissioner issued a notice pursuant to section 152(1) of the Act 1987 requesting that a copy of the file be forwarded by 5pm on 9 January 1998 and warning that proceedings would be instituted. A further notice in identical terms was issued on 3 February 1998 expiring at 5pm on 13 February 1998.

Matter No 22 of 1998

COMPLAINT BY GEORGE VERYKIOS

24 In early 1986 Mr Verykios consulted the Practitioner's principal in relation to 2 motor vehicle accidents. The carriage of the matters was assigned to the Practitioner a short time later. On 5 January 1995 Mr Verykios complained to the Commissioner about the length of time that the matter had taken and a consistent failure by the legal Practitioner to return telephone calls and keep him advised of the progress. (Both matters were resolved in the District Court later on in 1995). The matter was referred to the Society for investigation. On 12 January 1996 the Society requested a written response within 14 days from the Practitioner in relation to the complaint. The Practitioner did not respond despite subsequent reminder letters and the matter went before the Society's Professional Conduct Committee on 2 May 1996. On 6 May 1996 a section 152(1) notice was issued.

25 The Practitioner responded to the notice on 12 June 1996. The Society investigated further and wrote to the Practitioner again on 9 May 1997, requesting the whole file within 7 days. The file had not been received by 3 July 1997 and a further section 152(1) notice was issued on 9 July 1997. That notice was not complied with and a formal Complaint was made by the Society on 18 August 1997.

26 The Practitioner made a statutory declaration on 25 September 1997 to the effect that he did not receive the formal Complaint. On 1 October 1997 the Society advised the Practitioner that he must, by 17 October 1997, provide a statutory declaration setting out the reasons why he was not able to comply with the notice of 9 July 1997. The Practitioner having released his file to the client, on 14 October 1997 the Society provided the Practitioner with a copy of his file obtained from the complainant's new solicitors, but the Practitioner had not, by 6 November made any response to the Society, and, on that day, the Professional Conduct Committee issued a further notice pursuant to s152(1), it having received no further correspondence from the Practitioner.

COMPLAINT BY EZZEDIN ELKOJJE

27 Mr Elkojje was in a motor vehicle accident on 13 April 1987. He consulted the Practitioner later that year. He complained to the Commissioner on 15 February 1997 about the delay in resolving his matter, and the failure of the Practitioner to keep him advised of the progress of the matter and return his telephone calls. In October 1996 the complainant had a telephone conversation with the Practitioner and was advised that the matter would be "finished in six weeks time". The complainant was further told by the Practitioner that proceedings had been commenced. Inquiries by the Law Society revealed that there was no District Court file in existence and the GIO had closed and archived its file.

28 The Law Society wrote to the Practitioner on 19 March 1997 referring to the complaint and requesting a written response within 14 days. There was no response as at 5 June 1997 and the Professional Conduct Committee issued a section 152(1) notice, and required that the file in the matter be produced to the Society within 14 days. There was no response from the Practitioner and a formal complaint was made by the Society on 14 August 1997, and a letter notifying the Practitioner sent on 18 August 1997, this letter also referred to the Verykios complaint and was allegedly not received by the legal Practitioner. The requests of the Society were not complied with by their meeting of 6 November 1997 and a further section 152(1) notice issued.

29 On 5th August 1999 the Practitioner's reply admitted the gross delay and neglect, the failure to keep the client advised of the progress of his matter, the gross delay in releasing the file to the client or the client's new solicitors, that he misled the client in telling him that the claim would be finalised before Christmas, and that a claim had been filed.

30 Mr Elkojje issued civil proceedings against the Practitioner and his partner for failing to commence proceedings in time. That matter has settled on the intervention of LawCover, the Practitioner paying the excess of $12,000.00.

COMPLAINT BY CHRISTINE BONNICI

31 The complainant had a personal injury claim which she first consulted the Practitioner about in November 1986. On 11 September 1997 she complained to the Legal Services Commissioner about the delay in resolving her matter and the failure of the Practitioner to keep her advised of the progress of the matter and return her telephone calls. Her matter had become statute barred but she was not advised of this by the Practitioner.

32 The complaint was referred to the Society for investigation and on 24 October 1997 the Society wrote to the Practitioner requesting a written response to the complaint. On 21 November 1997 a further request was made by the Society as there had been no response and additional complaints had been made by the complainant. There was no response by the Practitioner and a s152(1) notice issued on 18 December 1997.

33 On 22 December 1997 the Practitioner spoke with a representative of the Society and gave an assurance that he would give the matter his full attention the following day. On 12 February 1998 the Society, having had no response, issued a Complaint against the Practitioner.

34 On 5th August 1999 the Practitioner's reply admitted the gross delay and neglect in the handling of the third party claim, the failure to keep his client advised of the status of the matter, and misleading her when he informed her that:-

1. In October 1996 the matter "should be over by Xmas" but in his defence claimed that he did intend at the time of saying this to "get onto the matter and get the file in order and have some negotiations achieved.......once I had spoken to Ms Bonnici I put the file to one side and just kept putting off what I had intended to do when I spoke to her",

2. In March 1997 he told her that he had filed proceedings on her behalf when he knew that her claim was out of time, and,

3. In May 1997 when he told her that he had spoken to someone he knew in the GIO and the matter would go to Court the first week of June 1997.

35 Mrs Bonici has issued civil proceedings against the Practitioner, these were not resolved as at 5th August 1999.

COMPLAINT BY CARMELO BRUNO

36 Mr Bruno instructed the Practitioner in three litigation matters. They each involved claims for rent against tenants who had vacated in breach of leases. In each case Mr Bruno complained that the Practitioner failed to keep him advised of the progress of the matters at Liverpool Local Court.

37 On 4 December 1995 Mr Bruno made a complaint to the Commissioner. The complaint was referred to the Society for investigation.

38 On January 11 1996 the Society wrote to the Practitioner requesting a written response within 14 days. On 18 April 1996 the Professional Conduct Committee required the Practitioner to provide a response to their initial letter within 14 days. On 26 June 1996 the Practitioner responded to the request by letter, saying he was unable to provide a chronology of events as the files had been released to the client and he had not retained a copy of all relevant documents. Mr Bruno released the files to the Society in November 1996 and copies were provided to the Practitioner, with further requests to answer specific complaints in relation to the matters within one month.

39 On 13 February 1997 the Practitioner undertook to respond to the Law Society by 27 February 1997. The Professional Conduct Committee met on 13 February 1997 and issued a notice pursuant to section 152(1) directing a response within 14 days. There was no response from the Practitioner and on 22 May 1997 the Professional Conduct Committee resolved that issues of professional misconduct and unsatisfactory professional conduct were involved in the complaint and invited submissions within 14 days, and that proceedings would be instituted in the Legal Services Tribunal. The particulars of the professional misconduct were that the Practitioner lied to the complainant when he advised them that two plaints would be listed on certain days at Liverpool Local Court, and that the Sheriff had attended to serve a summons on two occasions.

40 On 3 July 1997 the Professional Conduct Committee issued a formal Complaint on the above ground, failure to comply with the s152(1) notice and delay in handling all three of Mr Bruno's matters. On 17 July 1997 the Practitioner requested that the Professional Conduct Committee reconsider the matter. The Practitioner was asked to provide any further submissions by 13 August 1997 but he did not do so. On 14 August 1997 the Professional Conduct Committee resolved that the proceedings be instituted by the Tribunal pursuant to section 155(2) of the Act.

COMPLAINT BY THE VALANIDAS FAMILY

41 On 20 July 1986 Mr and Mrs Valanidas and their two children were injured in a motor vehicle accident. On 23 July 1986 the Practitioner was instructed to make a Claim for damages against the Government Insurance Office. Statements of Claim were filed by the Practitioner, but a preacipe for trial was not filed by 1 January 1998 and pursuant to Part 12 Rule 4C of the District Court Rules the proceedings were deemed to have been dismissed. After this matter was taken over by the solicitor who replaced the Practitioner, a Notice of Motion was filed to have the Statements of Claim restored to the list. The Court had not dealt with this Notice of Motion as at 5 August 1999.

42 Further Mr Valanidas complained that over the years he had frequently tried to speak with the Practitioner in regard to the progress of their claims, but either the call was not returned or he was given insufficient information.

43 The Practitioner admits that he is guilty of gross delay and neglect in the handling of these personal injury claims.

COMPLAINT BY CON GACEVSKI

44 In late 1996 Mr Gacevski instructed the Practitioner in relation to an appeal against his employer's refusal to compensate for an alleged work related injury. The Practitioner failed to lodge an appeal within the statutory time limit. From time to time of the initial instructions Mr Gacevski frequently sought to speak with the Practitioner, but his calls were not returned or he was misled and told that the appeal was proceeding.

45 Mr Gacevski has not yet lodged a civil claim against the Practitioner.

COMPLAINT BY FRANK COLAIACOLO

46 On 25 November 1998 Mr Colaiacolo wrote to the Commissioner complaining about the way his case was handled by the Practitioner. Mr Colaiacolo was injured in a motor vehicle accident on 27 March 1987. The Practitioner received instructions on 12 June 1987. His claim became statute barred on 21 March 1993. Mr Colaiacolo says that about six years (1993) after the accident he became concerned about the delay in resolving the case and on approaching the Practitioner he was advised by him that payment would be forthcoming soon. For the next two years Mr Colaiacolo frequently tried to contact the Practitioner, and he complains that often his calls were not returned or he was told settlement was near. No Statement of Claim was ever filed by the Practitioner. Mr Colaiacolo was not informed of this until late 1998.

47 The Practitioner admits that he is guilty of gross delay, he misled his client and failed to communicate with his client.

48 Mr Colaiacolo has not yet filed a civil claim against the Practitioner.

COMPLAINT BY MARGARET WILSON

49 On 18 November 1998 Mrs Wilson lodged a complaint with the Commissioner in respect of the handling of a claim for compensation arising out of her husband's death. Mrs Wilson first instructed the Practitioner in 1989. Mrs Wilson complained that over the years she had very little contact with the Practitioner. In March 1998 she had a conference with the Practitioner in respect of a subpoena for production with which she had been served. The Practitioner took what paper work she had and she did not hear from him again. She contacted the office in late March to inquire how the hearing in March went and was told by the Practitioner's secretary that "the matter had been adjourned because the Practitioner had been busy and the papers had not been sent to Court in time". On 30 September 1998 Mrs Wilson received her papers back from the District Court. Despite making six calls to the Practitioner, and writing by registered post she received no reply or acknowledgement. She also received a letter from the Legal Aid Commission stating that her grant would be terminated, as the Practitioner had not responded to their correspondence.

50 In his affidavit of 24 February 1999 the Practitioner admitted that he was guilty of failing to communicate with his client Mrs Wilson.

51 When the Society inspected the Wilson file, it became clear that on two occasions in the intervening years there had been Notices of Motion before the Court to strike the matter out for want of prosecution, and finally Mr Wilson's claim had been struck out by the District Court on 4 August 1998.

52 The Society contends that the Practitioner misled or attempted to mislead the District Court and the agents with these instructions.

53 The Practitioner denied the allegation that he misled the District Court.

54 Mrs Wilson's matter has been successfully reinstated to the District Court list.

55 The events leading to the Wilson matter being struck out are:-

1. The matter was listed for a call-over on 24 February 1998. The Practitioner instructed an agent that the directions hearing should be adjourned as the Practitioner was awaiting preparation of detailed actuarial calculations in order to properly quantify the claim. The matter was adjourned to 17 April 1999. A notice from the Court entitled "Matters not ready for hearing" was located on the file in respect of 17 April 1999 advising the parties that serious consideration would be given to striking out matters not ready for hearing.

2. On 17 April 1998, and the same agent was instructed by the Practitioner that "we have not finalised the actuarial calculations as yet" and "we have had difficulty in locating some of the relevant financial records".

3. On 12 June 1998 when the matter was listed again for a directions hearing another agent was instructed to adjourn the matter for another month "to enable these calculations to be finalised. We realistically expect to have them served by that date".

56 The file itself holds no evidence of any progress being made towards any financial calculations. Exhibited before the Tribunal are four pages of the Practitioner's notes apparently relating to the genesis of such calculations. The Practitioner concedes to the extent that the term "actuarial calculations" infers that an expert was to be employed, it is misleading, however he states that this was not the sort of case where an expert would be involved and that he intended to devise a table himself setting out the projected earnings for the deceased. This, he said, was a task of some complexity and he recalls calling a barrister and being provided with a precedent to assist him in the preparation. This precedent was not on the file.

57 The Society further alleges that the Practitioner, either intentionally or recklessly, misled the Tribunal in his affidavit of 24 February 1999, by failing to mention that Mrs Wilson's claim had been dismissed or was likely to be struck out or dismissed. The Society contends that given the chronology of events, the Practitioner would have been aware that the District Court would want the matter to proceed quickly given the delay thus far, and any further delay would inevitably run the risk of having the matter dismissed.

58 The Practitioner says that he failed to make a diary note of the hearing on 4 August 1998 and hence the matter was struck out as no one appeared. He says that this was his fault. He cannot now locate the advice from the agent providing the next date. Further he stated in cross examination that he overlooked or misread or simply did not recall a notice from the Court asking to show cause as to why the matter should not be struck out.

59 It is implausible that the Practitioner would not have expected the matter to be listed again shortly after the 12 June 1998 directions hearing. In the context that Mrs Wilson at this time was ringing and writing on a regular basis to find out what was happening, it is extraordinary that inquiries were not made by the Practitioner at some point between June 1998 and October 1998 when the matter was handed over to another solicitor, but it is perhaps explained by the evidence of the Practitioner's state of mind and other evidence before the Tribunal about the Practitioner's problems at this point in time. The fact that the status of the matter was not checked by the Practitioner prior to the swearing of an affidavit in February 1999 cannot be similarly explained.

60 The Tribunal finds the Practitioner guilty of the two denied allegations.

THE CASE FOR THE PRACTITIONER

61 The Practitioner is 37 years of age. He commenced working with the Liverpool firm in July 1985. This was his first job as a solicitor. His principal was older and had been practising on his own for a "few years". When the Practitioner commenced practice he was involved in conveyancing, but gradually, he was assigned the litigation matters then current in the office. Then, as a matter of course, all new litigation matters were referred to him. His principal's practice was mainly in conveyancing and he had little time to assist the Practitioner in learning how to manage a litigation practice.

62 Initially the Practitioner was given about 40 files but this number soon increased, and included family law, personal injuries, common law and debt recovery.

63 By the late 1980's the Practitioner was working on weekends to keep up with the work load. The nature of work did not generate sufficient income to enable the employment of another solicitor. The Practitioner accepts that it was poor practice management on his part to continue to take on non profitable work.

64 In March 1993 he married. At this time he was extremely busy every day. He performed tasks that he could do quickly, and put aside matters that required consideration or time to be spent on them. He was aware that he was not attending to some matters. He resolved to find time to get on top of these matters, and generally did attend to most matters but there were some matters which never seemed to get any attention. He was handling between 150 and 200 files in 1993, and he had that kind of practice load right up to the time his Practicing Certificate was cancelled. He estimates over the period of these complaints to the cancellation he handled about 3,000 matters.

65 He was aware at the time that he on occasion would put off doing things, but did not appreciate the depth of the problem, and thought he would attend to outstanding matters. When he realised that the matters of Foster, Bigeni, Elkojje and Bonnici became statute barred he could not bring himself to tell the clients.

66 On 1 July 1993 he became a partner in the firm. By this time a receptionist was distributing all mail and his partner was not sighting the mail directed to the Practitioner.

67 In July 1998 the Practitioner retired from the partnership, and continued to work as an employed solicitor. The facts of the change of status were that in May 1997 the Practitioner came before this Tribunal in relation to three complaints involving professional misconduct. Significantly these three complaints occurred over the same period and were for substantially the same conduct as in most of the present matters:- failure to commence proceedings within the limitation period and failing to advise his clients of the progress of the matters and that the matters had become barred. He was found guilty of professional misconduct on three counts and of unsatisfactory professional conduct on two others. The Tribunal reprimanded him and fined him the sum of $4,000.

68 After that hearing the Practitioner took steps with the assistance of the Society to try and avoid further difficulties in his practice. New management practices were implemented.

69 The Practitioner says that the 1997 proceedings were embarrassing and stressful and he felt depressed and anxious when dealing with the complaints now before the Tribunal. He was sleeping only 3 to 4 hours a night because of anxiety. By 1998 he stopped opening the letters sent by the Society or Commissioner. As those letters were marked private and confidential, if he did not open them, no one else did either. This is why he was unaware of the hearing before this Tribunal on 19 October 1998.

70 The Practitioner was assessed by two psychiatrists in late 1998, Dr Klug and Dr Cassimatis.

71 Dr Klug in his report of 17 November 1998 is of the opinion that the Practitioner "has psychiatric symptoms manifesting as obsessive/compulsive procrastination". Such obsessional personality traits are regarded as a predisposing factor to depressive illness and anxiety disorders. His increasing anxiety levels have manifested themselves in compulsive procrastination and increasing alcohol consumption, which has resulted in alcohol dependence but that is now in remission. Dr Klug recommended psychiatric care for an indeterminate period.

72 Dr Cassimatis in a report dated 23 November 1998 also expresses the view that the Practitioner "suffered from an Obsessive Compulsive Personality". He recommended that he attend a stress management plan for solicitors, a communication course to learn how to communicate without feeling ashamed or guilty, he cease drinking altogether, consider attending psychotherapy, and that he report to a senior solicitor at specified periods to undertake a practice review. He is of the view that "Mr Di Bello has the character prerequisites to successfully negotiate this transition and maintain a competent practice in the future".

73 The Practitioner has commenced treatment with Dr Mary Jurek, a consultant psychiatrist. In an affidavit dated 24 February 1999 tendered to the Tribunal she says "I believe that there are good prospects of Mr Di Bello reaching a point where he will be able to adequately deal with the characteristics which he represents with....The treatment necessary to achieve that is a course of treatment of the kind that he is undertaking with me. It s not possible at this time to say with any certainty how long such treatment might take".

74 The Practitioner's work was taken over by another solicitor. In the changeover, the Practitioner identified four further files, Wilson, Valanidas, Gacevski and Colaiacolo, where there had been failings which resulted in the matters raised or amended by the Society in its Information in matter 2021 of 1999.

75 In April 1999 the Practitioner obtained a job as a clerical assistant with a firm of accountants. He earns $600.00 a week gross.

76 As at 3 August 1999 the Practitioner has continued to see Dr Jurek weekly, these sessions cost the practitioner about $100.00. He also attended a risk management program for employed solicitors run by LawCover.

77 The Practitioner's wife has paid the sum of $10,000.00 by instalments to the Society being the costs of the 1997 proceedings before this Tribunal. The Practitioner has paid a further $26,730 by way of legal fees for the present proceedings. He did this by redeeming a savings investment plan, taking out a personal loan and his wife paying the balance. In June 1999 he borrowed $12,000 to pay the LawCover excess in respect of the Elkojje claim, $18,000 has also been paid in respect of the Foster Claim. Further amounts in respect of the LawCover excess for complaints Colaiacolo and Bonnici total $24,000. Further LawCover excesses could amount to as much as $72,000.00 and there are further unquantified liabilities in respect of the costs in these proceedings.

78 In summary, as at 5th August 1999 the Practitioner's assets jointly with his wife totalled some $580,000 and his liabilities were in excess of $197,500, but these were likely to substantially increase to more than $300,000.00 as his various LawCover excess liabilities became clear.

REASONS FOR DECISION

79 From a simple financial viewpoint the Practitioner (and those close to him) has suffered dearly for his failings, (and indeed that is a matter which the Tribunal must, in the interest of fairness, take into account when considering it's orders). However it is clearly settled law that the Tribunal's major task is that of the protection of the public and the profession in ensuring that those who are initially not fit to practice are not admitted to the profession, and that those who are admitted, and are found subsequently not to be fit and proper persons, do not continue to be in the profession.

80 Thus the present question which we must answer is:-

"Is Tino Di Bello now a fit and proper person, and if not, is he ever likely to be?"

81 It is appropriate to indicate that, on the closure of the hearing on 5th August, 1999 when the whole sorry picture was on view, Mr Shevlin's request of 1st March 1999 on behalf of the Society, for a striking off, as opposed to a cancellation, had some attraction. Had there not been medical evidence and evidence of treatment and the prospect of cure, it would have been difficult to find that the Practitioner was a fit and proper person, or might in the future be a fit and proper person. However, in view of Dr Jurek's evidence, it is clear that the Practitioner is sufficiently aware of his personality problem and has the insight and desire for treatment which will allow him to deal with his procrastination. In fact there seemed a possibility that the Practitioner, at the time of the hearing on 1 March 1999 had already gained a sufficient awareness to render him a fit and proper person at that time, subject always to him continuing a course of therapy. The subsequent actions of the Practitioner (which led to the matters of 5 August 1999) and his evidence on 5 August 1999 point to the possibility that he may, by that time, have been a fit and proper person, and thus a striking off is not appropriate.

82 As a matter of strict interpretation, we are of the view that our order of 19 October 1998 in matter number 18 must stand. The plain words of Section 171C give the Tribunal power to make specific orders "after it has completed a hearing relating to a complaint" and these are words which must be taken to include the circumstances which we found on 19 October, when the Practitioner failed to appear to the matters alleged against him, most of which related to failings to answer statutory requests for information. In the absence of any power to make Interim orders of a disciplinary kind specifically aimed at bringing the Practitioner before the Tribunal, on proof of service of the Section 152 Notices and of the Information, in circumstances where the Practitioner failed to appear at all, on the receipt of immediately contemporaneous telephone evidence to establish that the Practitioner was that very day at his local Court, engaged in litigation, the simple professional misconduct established by Section 152(4) was made out. In view of the serious nature of the matters proven as the basis for the issue of the notices, there was no alternative but to cancel the Practicing Certificate for a period which seemed appropriate on the assumption that no other failings of any kind might be established, and that all matters "behind" the complaints had been satisfactorily resolved. That order of cancellation may well have divested the Tribunal of any power to make any other orders other than ancillary to the cancellation, despite our indicative observation made at that time that the period of cancellation might be reduced in view of whatever evidence the Practitioner might bring before us. The subsequent conduct of the matter (which led to the Practitioner appearing, and bringing other matters to light) on the one hand justified our course of action, and, on the other, in view of the new matters raised, did not persuade us that the period of that initial cancellation was too long, and so our power to reduce such a cancellation did not need to be explored.

83 The same considerations (of our having no further power) lead us to make no response to the amended Information filed by the Commissioner in March of 1999, our order of cancellation in matter number 18 of 1998, as made on 19th October 1998 (in respect of two failures to respond to Section 152 notices) stands.

84 Of course, the Commissioner is entitled to his costs up to and of the first day, and (in view of the joinder of matter number 22) of the later day's hearings, and including 5th August 1999 because the question of our orders ancillary to the first cancellation order was still open, as was our observation of the possibility of reduction of the cancellation.

85 It was clear from Dr Jurek's evidence, and the Practitioner's evidence of family matters in his childhood that part of the Practitioner's difficulties may arise out of a phobia about personal injury, in addition to his particular personality disorder.

86 We have earlier adverted to the financial difficulties which have beset the solicitor arising out of these matters (a punishment of itself) which, taken together with the evidence before us of treatment might well have indicated that the initial cancellation was appropriate, and that no further period of cancellation should be imposed. However, it would be remiss of us not to make specific reference to the fact that in view of the nature of the present, profession-wide Professional Indemnity Insurance scheme, every member of the profession will in some way be affected not so much by the size of the claims against the Practitioner but by the very number of them. That is a matter which we feel we must take into account (having decided not to simply strike the Practitioner off the rolls) in considering the length of the period of cancellation.

87 Of course another matter to take into account is the stress and distress caused to the clients named in the Informations both by the delay in resolving their claims, and the lies which the Practitioner told them. No doubt the monetary losses will all have been fully taken into account in the civil litigation, but the hurt and aggravation which the Practitioner caused is relevant in these proceedings.

88 We note that the solicitor's misleading of the Court is, of itself, a most serious instance of professional misconduct; if our Courts cannot without hesitation accept the word of it's officers, then our whole system will fail, but of course it should be observed that the Practitioner's sin in this regard is at the "low" end of the scale and is adequately addressed by the period of cancellation which we propose.

89 Yet another matter to consider is the fact that, if the period of cancellation is too long, the professional skills of the Practitioner may fall into such "disrepair" as to make it virtually impossible for him to return to the profession.

90 All of these things taken into account, we think that the Practitioner should not practise at all, and may not apply for a Practising Certificate, until 15 May 2002.

91 Mr Simpson, on behalf of the Practitioner, referred us to the judgment of the Court of Appeal in the matter of Foreman, and we would observe, without making any specific order in that regard, that the indications given by the President of an order which would allow Foreman to give of her skills in public causes, might well be drawn to the attention of the Practitioner as being a worthwhile and relevant manner as a para-legal assistant, in maintaining his professional skills in anticipation of his application for a Practising Certificate at the expiry of the term of cancellation.

ORDERS

92 We then observe that our order of cancellation of 19 October 1998 in matter number 18 stands, and, in that matter we further order that the Practitioner pay the costs of the Legal Services Commissioner in an amount, and at intervals to be agreed between them, and filed with the Tribunal papers, if no agreement, liberty to apply.

93 In matter number 22 of 1998 and matter number 2021 of 1999:- we find that the Practitioner is guilty of the professional misconduct alleged against him (being four failures to respond to Section 152 notices, four admitted instances of misleading clients, one instance of misleading the District Court, one incident of attempting to mislead this Tribunal, gross delay and negligence in seven matters, gross delay in four matters, delay in one matter, and four failures to keep clients adequately advised, involving in all 13 clients in 16 different matters) and we order:-

1. That the Practitioner not be issued with a Practising Certificate until 15 May 2002

2. That the Practitioner not be issued with a Practising Certificate until he establishes to the satisfaction of the relevant Council that he is medically and psychiatrically fit to practise as a solicitor and, that he has undertaken an appropriate risk management course and that he has established to the relevant Council that he has undertaken appropriate work of a law related nature, or appropriate studies or other courses to have maintained legal knowledge and expertise.

3. That he not practise in personal injury law until he establishes to the relevant Council, by appropriate medical and psychiatric certification that he is fit so to do.

4. That upon the Practitioner being issued with a Practicing Certificate and commencing full time practice (whether as employee or principal) his practice be inspected by an appointee of the relevant Council at 3 consecutive 6 monthly intervals.

5. That the Practitioner pay the costs of the Law Society in an amount, and at intervals to be agreed between them, and filed with the Tribunal papers, if no agreement, liberty to apply.