Legal Services Commissioner v Musgrave; Law Society of New South Wales v Musgrave [2000] NSWADT 149 (20 October 2000)

Last Updated: 12 December 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Legal Services Commissioner -v- Musgrave; Law Society of New South Wales -v- Musgrave [2000] NSWADT 149

PARTIES: APPLICANTS

Legal Services Commissioner

Council of the Law Society of New South Wales

RESPONDENT

Peter John Musgrave

FILE NUMBERS: 9811

992034

HEARING DATES: 20/10/2000

SUBMISSIONS CLOSED: 20/10/2000

DECISION DATE: 20/10/2000

BEFORE: Brennan JWF - Judicial MemberPheils J - Judicial MemberMiller PO - Member

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED: Law Society of New South Wales -v- Di Bello; Legal Services Commissioner -v- Di Bello 2000 NSWADT 13

O'Reilly -v- Law Society of NSW [1988] 2 NSWLR 204

APPLICATION: Professional misconduct - solicitor

Unsatisfactory professional conduct - solicitor

MATTER FOR DECISION: Penalty

APPLICANT REPRESENTATIVE: APPLICANTS

J Needham, barrister for Legal Services Commissioner

P Boyd, solicitor for Law Society of NSW

RESPONDENT REPRESENTATIVE: RESPONDENT

G Walsh, solicitor

ORDERS: 1. That the name of Peter John Musgrave be removed from the roll of Legal Practitioners of the Supreme Court of New South Wales

2. That within 21 days, the Legal Practitioner pay to Associated Trading Co (North Coast) Pty Ltd the sum of $10,000 by way of compensation pursuant to section 171D of the Legal Profession Act

3. That the Legal Practitioner pay the costs of the Legal Services Commissioner in relation to proceedings 9811, as agreed or as determined by the Tribunal pursuant to section 171E of the Legal Profession Act.

4. That the Legal Practitioner pay one third of the costs of the Council of the Law Society of New South Wales in proceedings 992034 as agreed or as determined by the Tribunal pursuant to section 171E of the Legal Profession Act

Reasons for Decision:

EX TEMPORE REASONS FOR DECISION

1 Findings in separate proceedings brought against the legal practitioner ("the practitioner") were delivered on 5 September 2000. Six complaints of professional misconduct alleged by the Commissioner were established and one complaint of professional misconduct, and one of unsatisfactory professional conduct alleged by the Society were found to have been established. The matter was listed this morning for submissions on the issue of penalty.

2 In the findings this Tribunal considered in detail medical evidence and the subjective circumstances of the practitioner. In relation to the complaints that were established the Tribunal found that the conduct of the practitioner was not excused by any psychiatric condition, notwithstanding that the Tribunal accepted that the practitioner had suffered a dissociative fugue for a short period of time. The fugue was accepted by the Tribunal as explaining conduct which was the subject of a complaint that was dismissed.

3 The findings included conduct that the Tribunal described as "disgraceful", "most reprehensible", "outrageous", "knowingly false", "a charade", and "most dishonest and disreputable" .

4 Counsel for the practitioner sought an order that the practitioner not be issued with a practicing certificate for a period of three years, and sought to rely on a decision of this Tribunal in Law Society of New South Wales -v- Di Bello and Legal Services Commissioner -v- Di Bello (2000 NSWADT 13) where an order of that type was made. In Di Bello the Tribunal found that the practitioner suffered a psychiatric condition over the period of his misconduct, which in part explained that misconduct. The Tribunal considered that Di Bello was clearly contrite, and brought to the attention of the Society a number of further matters of his misconduct.

5 The Tribunal finds that the decision in Di Bello is clearly distinguishable. In this case the Tribunal has found that the psychiatric episode was of short duration from approximately the time of his disappearance in October 1998 until sometime about the time of his return to Coffs Harbour on 5 November 1998, while the misconduct established dated from early 1993 until 1999. The practitioner was subject to much stress in his professional life, some of which was no doubt brought on by his own procrastination and the lies that he told to his clients. There were other factors in his professional experience that were very traumatic and not of his making. The Tribunal has weighed all these matters up in coming to the findings that were made and has considered them again in assessing the appropriate outcome to protect the public as well as to impose a penalty.

6 The practitioner's misconduct continued up to the commencement of the hearing when he continued to practice without a practicing certificate and sought to mislead the Tribunal on this point. He was not forthcoming or contrite.

7 Counsel for the Commissioner referred us to a passage of Clarke JA in O'Reilly -v- Law Society of NSW [1988] 2 NSWLR 204 at 230 which the Tribunal finds reflect the facts in this matter. His Honour said:

" 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 practice. 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."

8 The Tribunal finds that the practitioner is not a fit and proper person to remain on the Roll of Legal Practitioners and accordingly orders that his name be removed from that Roll.

9 An order for payment of compensation was sought in the Legal Services Commissioner matter, and that order is made by consent.

10 Costs are sought in both proceedings. The Commissioner sought indemnity costs but the Tribunal finds that the appropriate order is for payment of costs as set out in the orders made.

11 The Society was unsuccessful in a substantial proportion of the complaints it raised. The psychiatric evidence in relation to the impersonation alleged was an important matter that needed to be resolved, while the complaint by Mr Devine was a very serious matter. The Tribunal finds that it is appropriate for the practitioner to pay one third of the Society's costs as set out in the orders made.