Law Society of New South Wales v Cass [2004] NSWADT 259 (11 November 2004)

Last Updated: 11 November 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Law Society of New South Wales v Cass [2004] NSWADT 259


PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
David Anthony Cass



FILE NUMBERS: 042005

HEARING DATES: 04/06/2004

SUBMISSIONS CLOSED: 05/06/2004



DECISION DATE: 11/11/2004

BEFORE: Chesterman M - ADCJ (Deputy President)Fox R - Judicial MemberBubniuk L - Non Judicial Member





LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Regulation 2002

CASES CITED: Law Society v Graham (2004) NSWADT 213

APPLICATION: Professional Misconduct - fail to lodge accountant's report with Law Society

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
L Pierotti, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
R W Gulley, solicitor

ORDERS: 1. Information dismissed
2. No Order for Costs.


Reasons for Decision:

REASONS FOR DECISION

1 By information filed 18 February 2004 the Council of the Law Society of New South Wales ("the Council") alleged that David Anthony Cass ("the Solicitor") wilfully failed to comply with the requirements of clause 94(i) of the Legal Profession Regulation 2002 and so was guilty of professional misconduct. The regulation requires a solicitor who has held trust money in the year which precedes his application for renewal of a Practising Certificate to file, with that application a report of an accountant in or to the effect of prescribed form 5.

2 The factual background to this matter was almost identical to that which was considered by this Tribunal in the matter of Law Society of New South Wales v Ian Douglas Graham [2004] NSWADT 213 ("Graham"). The Solicitor had similarly failed in the year 2002 in that the requisite accountant’s report was filed late, and only just in time to prevent the Council on 18 July of that year refusing the renewal of the Practising Certificate and appointing a Manager to the practice. Instead, in that year, the Council recorded a warning and advised the Solicitor in terms identical to those used by the Council in Graham.

3 Contrary to that warning, the Solicitor again failed to lodge the appropriate accountant’s report with his May 2003 application for renewal of his Practising Certificate and again, just as in Graham, after receiving correspondence indicating that the Council at its meeting of 17 July 2003 might not renew his Practising Certificate but instead appoint a manager to his practice, the Solicitor submitted the appropriate accountant’s report on the last possible day. Again, just as in Graham, the accountant’s report revealed no irregularity; we dealt with the matter on the basis that the Solicitor committed no trust account conduct irregularity other than the late filing of the accountant’s report.

4 The procedure adopted by the Council in Graham and this matter was similar except that the Information in this matter did not advert at all to the reporting conditions which the Council imposed on the issue of the 2003 Practising Certificates. The imposition of those conditions did emerge from the evidence led in reply by the Solicitor. Just as in Graham, the Solicitor was invited by the Council to consent to the imposition of conditions on his Practising Certificate which obliged him to have quarterly inspections by a senior solicitor and further obliged him to submit his monthly trial balance reports to the Chief Trust Account Inspector within twenty one (21) days of month’s end.

5 As it did in the matter of Graham, the Council argued that the Solicitor’s failure could only be professional misconduct, and sought reprimand, fine and costs. The Solicitor in his initial submissions to the Council conceded that he had not filed such an accountant’s report with his application for renewal of his Practising Certificate, but denied that such failure was wilful. He bluntly acknowledged that he had cash flow problems at the relevant time, which, together with a dispute with his long standing accountant over the late payment of fees, led to the Solicitor making the conscious decision to lodge his application for renewal with only his professional indemnity insurance arrangements in place, but without the accountant’s report. Presumably the delay in obtaining the accountant’s report gave cash flow breathing space. It is difficult to see how such a conscious decision could be typified as anything other than wilful, and the Solicitor in his Reply conceded the point.

6 This Tribunal, in the matter of Graham, has already decided that such a first failure (after a warning in the preceding year) is neither professional misconduct nor is it unsatisfactory professional conduct. We note that, although the published reasons in Graham do not advert to it, in that matter the solicitor failed to submit the reports for very similar reasons of financial stringency, and we see no reason why the same order of dismissal should not be made in this matter.

7 We do, however, wish to express our surprise at the course taken by the Council when asking the Solicitor to consent to the imposition of reporting conditions on his Practising Certificate. To be procedurally fair, the Council should have at the same time warned the Solicitor of its view that the conduct complained of might amount to professional misconduct, and so might result in the filing of the Information now before us. A warning of the prospect of "reference" to the Tribunal when seeking the Solicitor’s consent to the conditions would have alerted him to the clear election afforded by Section 38 B (i) (a) of the Legal Profession Act 1987 ("LPA"). Our remarks in this regard are not intended to criticise the Council in its decision to impose the reporting conditions as part of its regulatory function, nor do we suggest that it was not proper, in view of the accepted view of the law at that time, to file the Information because Section 155 of the LPA imposes a positive obligation once the conclusion has been reached that there is a reasonable prospect of a decision that there has been professional misconduct. Our criticism is the failure on one hand to clearly indicate to the Solicitor that if he did not consent to the imposition of the conditions, and the Council refused to issue the Certificate, he had the choice of an appeal to the Supreme Court, and, on the other hand that his consent to the reporting conditions might not be the end of the matter, and that there was a clear prospect, despite his consent, that he would have to face these proceedings.

8 The Information is dismissed.

9 In view of Section 171 E, there can be no order for costs because, despite our observations in relation to the Council’s failure to fully warn the Solicitor, the general circumstances of the matter, and the accepted view of the law at the time, do not give rise to the special circumstances which would allow us to order payment to the Solicitor of his costs from the Public Purpose Fund.