Law Society of New South Wales v Khera (No.3) [2008] NSWADT 258 (11 September 2008)

Last Updated: 17 September 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Law Society of New South Wales v Khera (No.3) [2008] NSWADT 258


DIVISION:
LEGAL SERVICES DIVISION

PARTIES:
APPLICANT
Council of the Law Society of New South Wales

RESPONDENT
Jaswant Khera



FILE NUMBERS:
052021

HEARING DATES:
18 September 2006, 23 October 2006

SUBMISSIONS CLOSED:
21 February 2007



DATE OF DECISION:
11 September 2008

BEFORE:
Karpin A - ADCJ (Deputy President)Barnes M - Judicial MemberBennett C - Non-Judicial Member





LEGISLATION CITED:
Legal Profession Act 1987
Legal Profession Act 2004

CASES CITED:
Law Society of New South Wales v Khera [2004] NSWADT 25
Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29
Law Society of New South Wales v Khera No 2 [2006] NSWADT 297
Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
Briginshaw v Briginshaw [1938] 66 CLR 336
The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655
Allison v General Council of Medical Education and Registration (1894) 1 QB 750

TEXTS CITED:


APPLICATION:
Solicitor – disciplinary application

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
APPLICANT
I M Wales SC, barrister
RESPONDENT
In person


ORDERS:
i. The name of Jaswant Khera be removed from the roll of legal practitioners
ii. The respondent’s practising certificate to be cancelled forthwith
iii. The respondent to pay the costs of the applicant Law Society of and incidental to the proceedings, as agreed or assessed
iv. This decision to be published.


Reasons for Decision:

REASONS FOR DECISION

1 This matter has a lengthy history. The original information seeking the removal of the respondent’s name from the roll of Legal Practitioners was filed on 5 October 2001. After numerous interlocutory applications were dealt with, the matter proceeded to a hearing of the substantive application on 22 October 2002. Following a 15 day hearing between that date and 12 December 2003, the Administrative Decisions Tribunal delivered a decision on 9 February 2004 (Law Society of New South Wales v Khera [2004] NSWADT 25).

2 The Tribunal ordered that the name of the respondent be removed from the roll of legal practitioners. The respondent appealed.

3 The Tribunal decision was set aside by the New South Wales Administrative Decisions Tribunal Appeal Panel on the 21 June 2005 (Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29).

4 The Appeal Panel upheld the appeal, ordered that the orders of the Tribunal be set aside, and remitted the matter to be heard by a differently constituted Tribunal.

5 Pursuant to the orders of the Appeal Panel the matter was listed for directions on 6 July 2005. There were further directions on 15 August and 5 October 2005. A challenge to the Tribunal's jurisdiction was dealt with by decision on 21 November 2005. The matter was again listed for directions on 7 December 2005. The respondent made an application for a permanent stay, which was heard on 6 and 7 March 2006. That application was refused on 7 June 2006. The respondent sought written reasons which were provided by decision dated 11 September 2006 (Law Society of New South Wales v Khera (No.2) [2006] NSWADT 297).

6 There were further directions hearings on 7 June and 9 August 2006. The matter was listed for hearing of the substantive application on 18 September 2006.

7 On the morning of Friday 15 September, a facsimile was received from the respondent’s daughter, indicating that her father was being admitted to St Vincent’s Hospital that day. Upon receipt of this facsimile, a member of the registry staff telephoned the respondent, who was advised that a medical report must be submitted to the Tribunal, and that his medical specialist might be required to attend the Tribunal to give evidence concerning his medical condition. The respondent indicated that he was not prepared to arrange a medical report until he was discharged from hospital. No medical report was available to the Tribunal on 18 September.

8 By letter dated 8 February 2007 the respondent made submissions in the matter. Annexed to those submissions, was a medical report from Dr Janet Rimmer, respiratory physician and allergist, dated 22 October 2006. This report had not previously been provided to the Tribunal.

9 Dr Rimmer’s report sets out his medical condition thus:

Mr Khera has asthma, bronchiectasis, presumed vasculitic lung disease, osteoporosis (multiple rib fractures, stress fracture in foot), hypogondadrism and chronic fatigue syndrome).

10 Dr Rimmer sets out the extensive regime of medications required by the respondent. She notes that he was admitted to hospital in January, April, July and September 2006, for intensive antibiotic treatment and physiotherapy "to see whether his lung function could be improved." She reports that: The admission in September, was initially arranged for a sleep study (part of investigations for lung transplantation). But as Mr Shearer (sic)was experiencing more symptoms. This was combined with antibiotic therapy and physiotherapy. He was admitted from 15 to 24 September." Dr Rimmer noted that response to therapy was minimal.

11 Clearly, hospitalisation for the hearing date was initially arranged for a sleep study. The Tribunal accepts that it was extended in accordance with the report of Dr Rimmer.

12 In the absence of any report from a medical practitioner on 18 September 2006, the Tribunal acceded to the application of the Law Society, that the matter should proceed in the absence of the respondent. That decision must be looked at in light of the extensive history in this matter. Whilst the respondent has appeared before the Tribunal on various occasions, and whilst he has shown himself capable of conducting the case he wishes to mount, there have been numerous occasions when, in the course of the Tribunal attempting to have all interlocutory steps completed in order to have the substantive proceedings disposed of, the respondent has not appeared.

13 On 18 September 2006, the matter proceeded ex-parte. At the close of evidence, it was submitted on behalf of the Law Society, that the Tribunal should proceed to make findings and orders. That application was refused. The matter was listed for further hearing on 23, 24 and 25 October, and 2 November. The purpose of those further hearing dates was to allow the respondent to present his case and to ensure that he had adequate time to recover from his current hospitalisation.

14 By letter dated 18 September 2006 the respondent was advised that the case for the Law Society had been heard ex parte. He was further advised that the Tribunal wished to afford him the opportunity to appear to respond to that case, and that accordingly, the matter had been set down for further hearing on 23, 24, and 25 October 2006 with an additional day for submissions on 2 November 2006.

15 On 23 October 2006 the respondent filed a Notice of Motion, together with his supporting affidavit sworn 22 October, seeking the following:

1. That the motion be heard instanter;

2. That the proceedings be stayed until further order of the Tribunal to permit the respondent to file an application with the Supreme Court for leave to appeal the Tribunal's order of 11 September 2006 in the proceedings; [Note: that order had been made on 7 June 2006].

3. That the proceedings be adjourned until further order of the Tribunal to permit the respondent to obtain and review a copy of the transcript of the proceedings on 18 September 2006;

16 The transcript of proceedings of 18 September had been e-mailed to the respondent as soon as it came into the Tribunal. A further copy had been provided to the respondent when he had arrived at the Tribunal on the morning of 23 October.

17 For the purposes of the notice of motion, the respondent was represented by counsel. He did not file Dr Rimmer's report. He relied upon a report previously seen by the Tribunal in interlocutory applications, being the report of Professor Wakefield dated 11 November 2005, who had last seen the respondent on 17 September 2005. In that report Dr Wakefield assesses the respondent, as severely debilitated as a result of his complex medical problems which include: " ... chronic fatigue with associated asthma, bronchiectasis and respiratory failure." The respondent informed Professor Wakefield that he had "dramatically decreased his workload" and is "able to work for short periods of time doing various clinical and administrative duties."

18 Professor Wakefield was of the opinion that the respondent would not, at that time, or in the foreseeable future, be able to represent himself in proceedings. Whilst the Tribunal respects the untested opinion of Professor Wakefield, it notes that the respondent appeared for himself in an application heard by the Tribunal on 6 and 7 March 2006, when he was able to quite adequately conduct his own case. He was offered opportunity to take rest breaks, some of which he declined.

19 The respondent set out his health problems in some detail in his affidavit. Much of that affidavit was inadmissible on the basis that it was hearsay, and the respondent’s opinion as to his current medical condition. Insofar as it contained assertions of a first hand nature concerning his health, that material was almost identical to earlier affidavit evidence filed by the respondent.

20 On the basis of those complaints, the Tribunal had on more than one occasion, advised the respondent that any sittings in the Tribunal would be conducted in accordance with his capacity to attend and participate. A perusal of the record of proceedings on the interlocutory application for a permanent stay of proceedings and the decision of the Tribunal of 11 September 2006 (see paragraph 40) clearly demonstrate the extent to which the Tribunal has been prepared to accommodate the health problems suffered by the respondent. There the Tribunal said:

"The Tribunal will take into account the solicitor’s health problems, and accommodate any needs he has for extra breaks from proceedings. Additional days will be set aside for the hearing in order to accommodate his needs." [Law Society of New South Wales v Khera (No.2) [2006] NSWADT 297 at Paragraph 40].

21 It was submitted by counsel for the respondent, that as a matter of procedural fairness, the proceedings should be adjourned to give the respondent an opportunity to fully understand the case that he was required to answer. The difficulty with that submission was that great care had been taken by the Law Society to advise the respondent as to precisely what evidence it proposed to rely upon. By letters dated 19th July 2005 (Exhibits "B" and "C"), the Law Society advised the respondent of those grounds in the original information which were no longer pressed; advised the affidavit evidence relied upon; and, pursuant to orders of the Tribunal, gave notice under section 67 Evidence Act 1995 regarding evidence to be adduced.

22 The transcript of 18 September 2006, clearly shows that the material the Law Society relied upon complied with the advice given in July 2005. The information was the original information filed in 2001 except that the Law Society no longer pressed substantial portions of the information merely relying upon what were apparently regarded as the more serious allegations.

23 In those circumstances, it was not conceivable that the respondent did not clearly know both the nature of the allegations against him, and the precise evidence upon which the Law Society relied. The matter had been fully aired in the original Divisional Tribunal; aired again before the internal Appeal Panel; and over many years the affidavit material upon which the Law Society relied had been in the possession of the respondent. In addition, in the first hearing before the Divisional Tribunal, such oral evidence as was required had been adduced.

24 At 12 midday on 23 October 2006, the respondent and his counsel being present in the Tribunal, an ex tempore decision was handed down by the Tribunal refusing the orders sought by the respondent. The Law Society, through its counsel, advised that despite the fact that no notice requiring witnesses had been received from the respondent, the witnesses were available to be cross-examined.

25 Counsel for the respondent withdrew from the proceedings, having only been briefed to appear on the application for adjournment. Thereafter the respondent appeared in person.

26 The respondent sought an adjournment to seek advice from counsel concerning the decision of the Tribunal refusing the adjournment application. That application was refused.

27 The respondent, after some discussion, [see transcript 23 October 2006 pp. 14-16] indicated that he did not wish to cross-examine the available witnesses, and sought time to make written submissions. He was given a period of 14 days. He did not make any submissions within that time. At directions hearings on 6 December 2006 and 7 February 2007, the time was further extended, finally to 21 February 2007.

28 On 8 February 2007, the respondent filed his written submissions by facsimile. Annexed to those submissions was the report of Dr Rimmer of 22 October 2006. That had not been tendered in evidence. Nonetheless, the Tribunal has considered Dr Rimmer’s report. Dr Rimmer sets out the respondent’s health problems in detail:

"Mr Khera has asthma, bronchiectasia, presumed vasculitic lung disease, osteoporosis, hypogonadism and chronic fatigue syndrome.

"Mr Khera’s condition has steadily declined over recent years ..."

29 Dr Rimmer set out the respondent’s medication regime, and confirmed that between 15 and 24 September 2006 the respondent was hospitalised.

30 The Tribunal is satisfied from the evidence of Professor Wakefield’s report in November 2005 and Dr Rimmer’s report of 22 October 2006, that the respondent has serious health problems.

31 The respondent asserts that he continues to be in poor health. He notes that fact is not disputed by the Tribunal. He refers to Dr Rimmer's report.

32 The Tribunal has always indicated to the respondent that matters will be conducted taking into account his capacity to participate.

33 The respondent's submissions are contained within one page. He refers to the fact of his admission to hospital on 15 September 2006. He refers to the previously mentioned discussion with a member of the ADT registry staff. He asserts, incorrectly, that on Friday 15 September the Tribunal made orders that the respondent’s doctor attend the Tribunal on Monday 18th September for cross-examination.

34 The respondent submits that the ex parte hearing, deprived him "of objecting to and challenging the evidence which the Law Society tendered." He asserts that the opportunity afforded by the Tribunal to respond to the Law Society's evidence (and, although he does not mention this fact, to cross-examine witnesses,) did not assist the respondent "under all of the circumstances and his continued ill-health."

35 Finally, the respondent submits that the "above-mentioned matters and circumstances amount to miscarriage of justice, inter alia."

36 The Tribunal is satisfied that the history of this matter suggests that had the case for the Law Society not been dealt with ex parte, this matter would never have reached finality.

37 The Tribunal is further satisfied that the respondent was given the opportunity to cross-examine the witnesses and to present his own case.

38 Having regard to the gravity of the matters alleged against the respondent, and now found established, the Tribunal believed it would be derelict in its duty to protect the public if it failed to achieve finality in the hearing of these matters.

39 The information filed on 5 October 2001, bearing matter number 012024, was, in accordance with the advice given to the respondent, amended. The information proceeded upon contained the following complaints:

i. The solicitor breached rule 26 of the Professional Conduct and Practice Rules 1994.

ii. The solicitor deliberately misled, or endeavoured to mislead, his client.

iii. The solicitor deliberately misled, or endeavoured to mislead, another practitioner.

iv. The solicitor endeavoured to mislead the Law Society.

v. The solicitor wilfully failed to pay Counsel's fees, although put in funds for the purpose.

vi. The solicitor wilfully contravened section 61 of the Legal Profession Act.

vii. The solicitor overcharged.

40 Each of the above matters is asserted to constitute professional misconduct.

41 The Law Society sought orders that the name of respondent be removed from the Roll of legal practitioners, and that he pay the costs of and incidental to the proceedings.

42 Counsel for the informant tendered the following material:

i. Exhibits A, B and C, being letters to the respondent advising him of the ambit of the informant's case.

ii. Exhibit D, being Rule 26 of the Professional Conduct and Practice Rules 1994 which provides:

A solicitor must not appear as an advocate and, unless there are exceptional circumstances justifying the solicitor’s continuing retainer by the solicitor’s client, the solicitor must not act, or continue to act, in proceedings in which it is known, or becomes apparent, that the solicitor will be a material witness.

iii. Exhibit E, Affidavit of Raymond John Collins sworn 15 July 1999.

iv. Exhibit F, Affidavit of Raymond John Collins sworn 4 October 2002.

v. Exhibit G, Affidavit of Keith James Mannion sworn 16 June 1999.

vi. Exhibit H, Affidavit of Ranjana Narayan, sworn 2 June 1999.

vii. Exhibit J, Affidavit of Ramu Narayan sworn 2 June 1999.

viii. Exhibit K, Affidavit of Ian Jones, sworn 14 May 1999.

ix. Exhibit L, Affidavit of Grant Atkinson's sworn 6 May 1999.

x. Exhibit M, Affidavit of Mary Agnes Young sworn 6 June 2002.

xi. Exhibit N, letter dated 6 December 1993 from Keddies, solicitors to Respondent.

xii. Exhibit O, extract from evidence given by the respondent on 27 June 2003 in proceedings before the Administrative Decisions Tribunal.

xiii. Exhibit P, extract from file of solicitor for the vendor [Exhibit L in previous proceedings before Tribunal].

xiv. Exhibit Q, further extracts from file as above.

xv. Exhibit R, Affidavit of Respondent verifying statement of affairs.

xvi. Exhibit S, Letter dated 19 October 2006 from the respondent to Mr R.J. Collins.

THE COMPLAINTS

GROUND 1. Breach of Rule 26, Professional Conduct and Practice Rules.

43 The first complaint is an allegation that the respondent is guilty of professional misconduct in that he breached Rule 26, then in force, of the Law Society Professional Conduct and Practice Rules which provided:

"A solicitor must not appear as advocate and, unless there are exceptional circumstances justifying the solicitor’s continuing retainer by the solicitor’s client, the solicitor must not act, or continue to act, in proceedings in which it is known, or becomes apparent, that the solicitor will be a material witness."

44 The facts relied upon to substantiate this allegation are that on 1 September 1995, Mr S Roddick, solicitor, made a complaint to the Legal Services Commissioner concerning the conduct of the respondent in proceedings in the Local Court before Mr P Sloane Magistrate, on 4 August 1995. The Commissioner referred the complaint to the Law Society for investigation.

45 On 18 October 1995, the Law Society wrote to the respondent setting out the complaint and seeking a response from the respondent. In essence the complaint alleged that the respondent gave evidence in proceedings before the Magistrate, which evidence was material to the issue between the parties to the proceedings. Thereafter, on the same day, the respondent appeared for the party for whom he had given evidence.

46 The respondent does not deny that he both gave evidence in the proceedings and then appeared for one of the litigants. He has always denied that the evidence he gave was material to the proceedings.

47 The proceedings in the Local Court involved an action for goods sold and delivered. Initially there were three parties to the action. By the time the matter came on for hearing before the Magistrate on 4 August 1995, the plaintiff and defendant, Williams, had settled their dispute. The remaining matter was between the defendant and the third party. The live issue between those litigants was whether or not there was an agreement for the sale of the business as between them.

48 At the commencement of proceedings, both parties appeared in person. Mr Khera, the respondent in the present proceedings before the Tribunal, gave evidence for M/s Williams, by that time the effective plaintiff in the proceedings in the Local Court, against the Third Party/defendant.

49 At the outset of the respondent’s evidence, the defendant (Mr Roddick) complained to the magistrate that the respondent had been acting for M/s Williams, and in that capacity had joined Roddick as Third Party. Nonetheless the Magistrate permitted the evidence to be adduced.

50 In the course of giving evidence, the respondent said in response to a question from M/s Williams:

"Well I acted for you in this matter, I was your solicitor."

[transcript 04/08 95 p 4 pt.30]

51 Thereafter the respondent was asked, and answered, a number of questions going directly to the matter in issue, namely whether or not there was an agreement for sale of a business between the plaintiff (Williams) and the Third Party Defendant (Roddick).

52 On page 6 line 2 of the transcript of 4 August 1995 in answer to a question from M/s Williams, the respondent says:

"Well, we said that he purchased the business and he said that he’d agreed to pay you $41,000, plus car, plus $15,000 cash, but later on he found out that the debts exceeded an amount of $106,000 and he moved the goods out of the premises"

53 At page 6 lines 15 and 35 the respondent says:

"... But he told me that he purchased the business and these were the terms. How much he agreed to pay you." (L.15)

"Well the words he used that he bought the business, he was to pay you $41,000 and a motor car and $15,000 cash. That was the deal he told me." (L. 35)

54 Immediately after giving his evidence the respondent said:

"Your Worship if I just may assist the court, if I can address your Worship for half a second, all I was going to say is being an officer of the court ... I’m here, I’m quite happy to have conduct of my client’s matter if your Worship ..."

55 After the Magistrate pointed out that M/s Williams was not the respondent’s client at that point the respondent said:

"I can see the dilemma and if she instructs me I’m here and I’m happy."

56 Following some brief exchanges between the Bench and the respondent, he indicated that he had instructions to appear for M/s Williams and announced that he appeared for her in the proceedings.

57 In correspondence with the Law Society and in evidence, the respondent has asserted that the evidence he gave was not material to the issues between the parties.

58 On 11 August 1995 the Magistrate handed down his decision. His Worship said, inter alia:

"The issue before this court relates to whether, in effect, the defendant purchased the business, including assets and liabilities referred to. He says he didn’t, Miss Williams says he did."

59 The respondent has consistently denied that he was a material witness for M/s Williams. In a letter to the Law Society of 16 February 2006, in response to questions raised by the Society, the respondent wrote:

"4. In relation to my comments that I was not a "material witness" I advise that:

(a) the evidence I was asked to give was in relation to formal or non-contentious issues;

(b) the evidence I was asked to give was not of a controversial kind in these proceedings;

(c) the evidence I was asked to give was in relation to the work I carried out on behalf of my client, Ms Williams;

(d) I was not present at the time any discussion which may have taken place between the parties and which can be said to be of significant importance or upon which the case may largely depend;

(e) My appearance for Ms Williams did not cause a conflict between my duty to the Court and my obligation to my client. Indeed, according to her own version, it very much assisted my client and she has gone on record to appreciate my efforts, for which I have not charged her. I assisted her knowing that she was not in a position to pay me. I did so in the interests of justice."

60 The Tribunal is satisfied that the respondent acted for M/s Williams in the proceedings at least at the time when Mr Roddick was joined as Third party; at the commencement of the proceedings before the Magistrate on 4 August 1995, M/s Williams appeared in person. The Tribunal is unable to say at what point the respondent ceased to act for M/s Williams prior to the proceedings on 4 August. The Tribunal finds that the respondent re-commenced to act for M/s Willams immediately following his evidence before the Magistrate, and represented her throughout the balance of the proceedings on 4 August 1995.

61 The evidence given by the respondent was material to the outstanding issue between M/s Williams and Mr Roddick, namely whether or not there existed an agreement for sale between them. Mr Roddick’s responses to the Magistrate; the evidence adduced and submissions on hearing are conclusive that the issue between the parties was an assertion by M/s Williams that Mr Roddick had agreed to purchase the business, and his unequivocal denial of that fact. The Magistrate’s decision handed down on 11 August 1995 leaves no doubt that this was the issue being litigated between the parties.

62 The Tribunal is satisfied to the requisite standard (Briginshaw v Briginshaw [1938] 66 CLR 336), that the respondent’s conduct breached the provisions of Rule 26 of the Professional Conduct and Practice Rules.

GROUND 2. Deliberately misleading or endeavouring to mislead a client.

63 It is not in dispute that the respondent acted for Mrs Ranjana Narayan in personal injury proceedings arising out of a motor vehicle accident that occurred on 24 April 1990. Those proceedings were conducted in the District Court. He admits that he acted for her "... from about the middle of 1990 and about May 1993, then again between the end of September 1993 and about September 1995."

64 That admission as to the periods during which the respondent acted for Mrs Narayan appears to flow from the fact that for some periods, Mr Jones, who was for a time a partner with the respondent, had carriage of the matter.

65 On 19 August 1993, a time at which Mr Jones had carriage of the matter, Judge Mahoney in the District Court, granted leave to Mrs Narayan to amend her Part 12 Statement (a statement of particulars relied upon) by 13 November 1993. The amended statement of particulars was directed towards Mrs Narayan extending her claim for financial loss. That amendment was not made.

66 On 7 December 1993, at a time when the respondent, by his own admission, had carriage of the matter, the proceedings were settled on the basis of a sum of $20,500, plus costs as agreed or taxed.

67 On 8 December 1993 the respondent wrote to Mrs Narayan as follows:

"2. On 19 August 1993 when this matter was before the Court Ian Jones had arranged for Mr Manion of Counsel to attend the mention".

After referring to the order made by Mahoney J., the respondent continued:

"However, it was only on 6 December 1993 that we became aware that the said Order had not been complied with ..."

"3. We advised you of Counsel’s advice that under the circumstances it is likely that the Judge may strike out your action altogether. Alternatively, the Judge may refuse to grant you leave to amend the Statement of Claim. There could also be questions of the Defendant’s costs being awarded against you".

68 In evidence given at the first Tribunal hearing on 27 June 2003, the respondent was shown the letter of 8 December 1993, to which he responded:

"I told her what I told her and it’s in my letter that’s what I told her." [transcript 27/6/03 p.103 L.20-25]

69 In an affidavit sworn 16 June 1999 filed in the Administrative Decisions Tribunal in proceedings 992023 Mr Manion of Counsel asserted that:

"... at no time did I advise Mr Jaswent (Jess) Khera during a telephone conversation in late 1993 that "it is likely that the Judge may strike out (the) action altogether."

I recall that during the said telephone conversation in late 1993 we conversed to the following effect:

Jess: "Are you able to appear in Court this morning for Mrs Narayan as we have failed to comply with a previous order."

Myself: "No, I am not available."

Jess: "Will the Court make any costs orders?"

Myself: "The defendants have wasted an appearance as you have failed to comply with the previous orders by not filing the document. The Judge may make an order for the costs thrown away but it is likely the order would be against your firm and not the Plaintiff personally."

I heard nothing further from Mr Khera and assumed the problem had been sorted out. I was not informed by him that the matter had settled.

70 In evidence before the Tribunal in 2003, Mr Manion was shown a letter from the respondent’s file dated 7 December 1993, purporting to be a file copy of a letter from the respondent to Mr Manion, confirming Counsel’s advice that in view of the failure to comply with the orders in respect of amendment to the Part 12 particulars, the Judge may strike out the claim and that there was little that could be done to salvage the situation.

71 Mr Manion could not recall ever receiving such a letter. He denied giving the alleged advice saying:

"Now that is a ridiculous assertion. The worst any Judge would do in the circumstances would be to hold you to the previous Part 12 Particulars. It would be immediately appealable if a Judge purported to strike out a claim for a mere procedural failure to follow a timetable where it is the Plaintiff’s own application to amend the Part 12 particulars. Therefore, had I received this letter of 7 December 1993 I would have been on the phone before I finished reading it." [Transcript 1/4/03 P. 8]

72 Having perused the evidence of Mr Manion, Mrs Narayan and the respondent in relation to this issue, this Tribunal has determined that the evidence of Mr Manion and Mrs Narayan is to be preferred over the evidence of the respondent.

73 The Tribunal is satisfied to the requisite standard (Briginshaw v Briginshaw [1938] 66 CLR 336) that the respondent deliberately misled or endeavoured to mislead his client, Mrs Ranjana Narayan, in his letter to her dated 8 December 1993.

GROUND 3. The respondent misled or endeavoured to mislead another practitioner.

74 In her affidavit sworn 6 June 2002, Mrs Ranjana Narayan at paragraph 9 avers that on 26 June 1992 she entered into a retainer agreement with the respondent. A copy of that retainer agreement is annexed to her affidavit. It provides, inter alia, for the respondent to charge the client at the hourly rate of $175.00.

75 The respondent and Mr Jones were partners between 1 October 1992 and 3 September 1993. On 8 December 1999 Mr Jones was appointed by order of the Supreme Court of New South Wales, as Receiver and Manager of the partnership business. In that capacity, Mr Jones was required to receive and distribute fees paid in respect of partnership work.

76 As previously noted, during the course of the partnership, both the respondent and Mr Jones had carriage of Mrs Narayan’s matter at various times.

77 In evidence given on 27 June 2003, [transcript p. 100 L.6] the respondent agreed that on or about 10 November 1993, having obtained Mrs Narayan’s authority, he had the file transferred from Mr Jones to himself. He attended Mr Jones office to collect the file. That transaction is confirmed in Mr Jones affidavit sworn 14 May 1999. Mr Jones retained a copy of the retainer agreement.

78 On 8 December 1993, Mrs Ranjana Narayan signed a document headed "Authority to Pay" referring to settlement of the matter and authorizing settlement cheques payable as follows:

"1. A cheque in the amount of $17,500 to be made payable to myself.

2. A cheque in the amount of $3,000 (being the remainder of the settlement amount) to be payable to Khera and Associates.

3. Please forward the cheque for the out-of-pocket expenditure to Khera and Associates but the cheque to be made payable to myself."

79 On 8 December 1993, the respondent forwarded an invoice to Mrs Narayan claiming costs in her personal injury matter in the sum of $3,000 covering a period between May 1990 and June 1991.

80 Mr Jones was not informed that the matter had been settled until he received a letter from the respondent dated 29 March 1994 including the following:

"We advise that the above matter is now completed. According to the terms of settlement the insurer has agreed to pay legal costs on a party party basis. I note that there is no cost agreement between Mrs Narayan and either myself or the partnership between you and I. The client advises me that when I accepted the instructions from her it was on the basis that I will accept such amount by way of fees and disbursements as are paid by the insurer. I have a similar recollection of the matter. Presumably this means that the partnership between you and I is also bound by the abovementioned agreement."

81 In his evidence before the first Tribunal on 27 June 2003, the respondent agreed that he had reached an agreement with Mrs Narayan, in accordance with the authority she signed, that he would receive $3,000 from the $20,500 settlement monies which would represent his costs for a period that did not include the time during which he and Mr Jones were partners. He further agreed that he knew that Mr Jones was entitled to some money for that period.

82 It was put to him:

"So that you struck a deal that had the very purpose of keeping Mr Jones away from any part of the settlement moneys?"

KHERA:

"For the purpose where – for the – I did not accept money for the period which I was not entitled to or which was caught by the court orders, because I did not want to get tied up in litigation forever with Mr Jones."

83 The Tribunal is satisfied that at the time the respondent settled Mrs Narayan’s litigation he entered into an agreement with her, evidenced by the authority which she signed. He rendered an invoice for the agreed sum of $3,000 which deliberately covered a period during which Mr Jones was not in partnership with the respondent, but during which little work was carried out on the file.

84 The Tribunal finds that in his letter of 29 March 1994 to Mr Jones, the respondent deliberately misled or endeavoured to mislead Mr Jones in that he advised Mr Jones that there was no costs agreement with the client, and failed to inform Mr Jones that he had received the sum of $3,000 on account of costs.

GROUND 4. The solicitor endeavoured to mislead the Law Society.

85 The respondent acted for Mr Jainendra Narayan and Mrs Ranu Narayan in respect of their purchase of vacant land at 4 Aplin Rd. Bonnyrigg, in September 1990. This was a straightforward conveyancing transaction. The land was, however, burdened by a condition that no building could be erected on the land until such time as the land had been filled and prepared in accordance with the local Council’s requirements. The Restriction as to User relevantly provided:

"(i) Further development of the land hereby burdened, by erection of buildings or otherwise, is prohibited until the land has been filled, compacted and surface graded to the satisfaction of Fairfield City Council.

(ii) Title to the subject land shall not be transferred by sale or otherwise from the ownership of the Registered Proprietor as shown in Part 1 of this instrument."

86 Rectification work had been undertaken by the vendors to the satisfaction of the Council. A Deed of Release, dated 25 June 1990, had been obtained from the Council and was in the hands of the vendor’s solicitors at the time of settlement of the sale between the vendors and the Narayans on 10 September 1990. The Deed of Release was not handed over on settlement, which appears to have been a mere matter of oversight on the part of the Vendor’s solicitors.

87 The Restriction as to User and the Deed of Release, were referred to in the contract for sale. As solicitor acting for the purchaser, the respondent should have been aware the Deed of Release was required to be obtained at settlement. Having regard to the explanation provided by the respondent, which the Tribunal does not accept, the Tribunal is not in a position to make a finding as to whether the respondent erroneously overlooked the necessity to ensure the Deed of Release was handed over on settlement, or, whether he was ignorant of the necessity to obtain that document.

88 In June 1992, the purchasers lodged building plans with the Council at which time they became aware that the Deed of Release and another document, a Geo-technical report, had not been received by them following settlement.

89 The Narayans contacted the respondent, who located the Deed of Release which, the evidence of correspondence and file notes clearly discloses, was obtained from the vendor’s solicitors without difficulty.

90 In response to a letter from the respondent dated 10 August 1992 requesting the Deed of release, the vendors solicitors wrote to the respondent on 19 August 1992 enclosing the Deed.

91 The respondent lodged the document with the Land Titles Office and rendered a memorandum of fees to Mr and Mrs Narayan, dated 26 August 1992, in the sum of $540.00 in respect of this attendance. On 13 November 1992 the respondent rendered a further memorandum of fees in respect of the matter, claiming an additional $768.15.

92 The Narayans complained to the Law Society, claiming that the costs were excessive, that the respondent had handled the conveyance negligently, and that he had failed to lodge, and then had delayed lodgement of documents at the Land Titles Office. Those complaints were advised to the respondent by letter from the Law Society dated 16 April 1993, and his response sought.

93 By letter dated 26 May 1993 the respondent dealt with this complaint thus:

"3. In relation to the allegation that we failed to lodge and then delayed in lodging documents at the Land Titles Office we advise that, to the best of the writer’s knowledge, the Complainants have never raised any questions in relation to this issue earlier."

94 Following a Report from the Law Society in August 1994, the respondent wrote to the Society on 5 October 1994. Under heading of "Complaint by Narayan" he wrote:

"2. The clients were aware of the problem prior to settlement. The clients were also aware of the existence of the Deed of release prior to settlement.

For some reasons the Narayans were not able to settle the matter within the required time and from memory a notice to complete was served. The matter was completed within the time specified in the said notice to complete but the Vendor’s solicitor requested that his client be paid interest. The Narayans refused to pay the interest. The Vendor’s solicitor indicated that he was in possession of the Deed of release and that he would only hand it over if the Narayans agreed to pay the interest. The Narayans refused to do so on the grounds that the contract did not require them to pay interest. The necessary advice was given to the Narayans including the commercial reality as opposed to their legal rights. The Narayans elected not to worry about the Deed of release and not to pay the interest."

95 In her affidavit of 2 June 1999, Mrs Ranu Narayan says in response to this assertion:

"... I say that at no time did Mr Khera advise me that the vendor’s solicitor held the Deed of Release and would only hand it over if my husband and myself paid interest. The payment of interest was never discussed with me by Mr Khera. I dispute the statement that ‘The Narayans elected not to worry about the deed of release and not to pay interest.’."

96 The vendor’s file [Exhibit "Q"] contains a file note at the time of settlement that reads: "don’t worry about interest just settle".

97 The Tribunal is satisfied that the letter written by the respondent to the Law Society dated 5 October 1994, in respect of the extract set out in paragraph 94 above, does not accurately reflect what occurred, and represents an attempt by the respondent to mislead the Law Society in that it suggests that rather than a simple matter of oversight on his part, the failure to obtain the Deed of Release at settlement was a considered decision in accordance with instructions from the respondent’s clients, Mr and Mrs Narayan. The Tribunal does not accept the respondent’s version of events, but does accept the version of Mr and Mrs Narayan which is supported by other, independent evidence.

GROUNDS 5 and 6. The Solicitor wilfully failed to pay Counsel’s fees although put in funds for that purpose; and the solicitor wilfully contravened section 61 of the Legal Profession Act 1987.

98 The respondent acted for Mr Ajai Punja in a dispute in the Family Court relating to custody. By Statutory Declaration sworn 24 May 1994, Mr Grant Atkinson, a Melbourne barrister, alleged that:

i. In 1992 he was briefed by the respondent to appear in the Family Court at Melbourne for Mr Punja.

ii. He rendered fees in June and July 1992 for a total amount of $5,370.

iii. In or about July 1992, Mr Atkinson had various discussions with the respondent in the course of which the respondent expressed an unwillingness to pay all or any significant part of those fees.

iv. Subsequently, Mr Atkinson spoke to Mr Punja and informed him that his fees had not been paid which he understood to be due to unwillingness on the part of the respondent or Mr Punja to make the necessary payment.

v. Mr Punja expressed surprise and informed Mr Atkinson that the totality of his fees had been paid to the respondent.

vi. As at 24 May 1994, Mr Atkinson’s fees remained outstanding.

99 On 26 April 1994, Mr Atkinson’s solicitor, Mr Bunnett, wrote to the Law Society advising that judgment had been obtained against the respondent in the sum of $5,370.00 for fees together with a sum of $1,193.91 for interest and costs. That judgment had been registered in the Local Court in Sydney. Mr Bunnett advised the Law Society that Mr Punja had informed him he had paid Counsel’s fees to the respondent at the time of the Family Court proceedings which had been in June and July 1992.

100 A copy of that letter was sent to the respondent by the Law Society under cover of a letter dated 20 May 1994, seeking his explanation.

101 By letter dated 17 June 1994 the Society was advised that the respondent had been unwell and would respond to the Society’s letter "as soon as he is able to do so."

102 By letter dated 25 July 1994 the respondent wrote:

"It appears that this is a ‘recycled’ complaint against me."

"In so far as the complaint relating to the alleged debt owed by me to Mr Atkinson is concerned it is not a matter that the Society ought to be involved in. In relation to the alleged judgement obtained by Mr Atkinson as I wish to do is point out that, in my view, the judgment was improperly obtained and is subject to be set aside."

103 In the same letter the respondent referred to a Trust Account Inspector attending his office on 7 June 1993 in respect of this allegation, and having given the respondent a "clean bill of health."

104 On 29 July 1994 the Society wrote to the respondent, pointing out that the issues raised by the Society in relation to Mr Atkinson’s outstanding fees were entirely different to the matters considered by the Trust Account Inspector in June 1993, and continued:

"I understand from the Trust Account Inspector’s report that you do not dispute having received an amount of $4,500 in respect of Counsel’s fees owing in this matter. Please advise whether that sum is retained in your Trust Account and if not the reason why. Alternatively, have you repaid the money to your client?"

105 By letter dated 9 August 1994 the respondent replied to the Society and annexed a Statutory Declaration sworn the same date. The respondent denied that he had indicated to the Trust Account inspector "or anyone else that I ‘do not dispute having received an amount of $4,500.00 in respect of Counsel fees owing in this matter.’"

106 The respondent asserted that in order to respond to questions regarding his Trust Account he would require access to his Trust Account records that were in the possession of Mr Jones.

107 In his Statutory Declaration of 9 August 1994, the respondent asserted that he had a conversation with Mr Atkinson before briefing him; that a fee of $900.00 per day was agreed, and upon that basis he briefed Mr Atkinson. The matter ran for 2 days, accordingly the respondent was prepared to pay $1,800.00 but not the $5,370.00 claimed. He asserted further that he raised the matter with Mr Cavoli, the Melbourne solicitor acting as his agent, who confirmed that the agreed daily rate for counsel was $900.00 per day. [see paragraph 120 below re letter dated 8 November 1995 from Mr Cavoli.]

108 By letter to the respondent dated 16 August 1994, the Society advised that Mr Jones would be contacted to request that he make the relevant Trust Account records available to the Society.

109 The same letter noted that the Trust Account inspector’s records referred to an invoice issued by the respondent to Mr Punja on 31 July 1992 setting out a claim for costs and disbursements in the matter of Punja v Punja, including an amount of $4,500.00 for Counsels fees. The total amount of the invoice was $12,295.56. That invoice had been paid in full by the client on or about 11 September 1992. The cheque had been banked into the respondent’s office account rather than the Trust Account.

110 The Society’s letter of 16 August 1994 also requested that the respondent provide Mr Punja’s address, and attached a copy of the Trust Account inspector’s report dated 9 June 1993.

111 The Trust Account Inspector’s Report of 9 June 1993 notes the Invoice for $12,795.56 rendered on 31 July 1992, and receipt of the full amount from the client which was paid into the office account on 11 September 1992. The report continues:

"It was stated by Mr Khera in response to my enquiry, that the amount of $4,500.00 (Counsel’s fees as above) was an amount due to Mr Grant Atkinson, barrister of Melbourne. However, payment of the amount is in dispute and is presently the subject of pending litigation in the Victorian Courts."

112 By letter dated 12 September 1995 the Society wrote to the respondent noting that attempts had been made to verify the payment or otherwise by Mr Punja, but had not met with success.

113 On 29 September the Society again wrote to the respondent in the following terms:

"Mr Ian Jones has now supplied me with a copy of a page from the invoice analysis book of the firm of Khera’s-the Law Firm, which appears to indicate that an account in the amount of $12,795.00 was paid by Mr Punja on 11 September 1992. These records accord with the report of the trust account inspector and I would be grateful if you would take them into account when we have a reply to my letter of 26 September 1995."

114 On 4 October 1995 the respondent replied to the Society’s letters of 12 and 26 September 1995.

"2. I did not receive an amount of $4,500.00 from Mr Punja in respect of Mr Atkinson’s fees."

115 At paragraph 7 of the same letter the respondent wrote:

"ii. It is substantially correct that I may have issued the invoice.

It is substantially correct that the client paid some money towards the invoice. It is not correct that the client paid me $12,795.45. The client paid me substantially less that the billed amount. It is substantially correct that I banked the money in my general account."

"iii. ... I disagree that I have retained $4,500.00."

"I do not recollect offering Mr Atkinson $4,500.00."

116 By letter dated 18 October 1995, the Society again wrote to the respondent noting, inter alia, that both Mr Jones and the respondent had advised they did not have the Punja file; that the Society had been unable to locate Mr Punja, and finally at paragraph 7:

"I note that you say Mr Punja did not pay you the amount of $12,795.56. I would be grateful if you would consult your banking records and advise me of the amount received and the date received. If you are able to obtain a copy of the paid cheque this would be most useful."

117 On 2 November 1995 the respondent wrote to the Society stating in the penultimate paragraph:

"The banking records you refer to, I believe also have been removed from my possession by Mr Jones. Therefore I can not consult my records."

118 By letter dated 6 November 1995, the Society advised the respondent of the decision of the Professional Conduct Committee of the Society determined at a meeting of that Committee on 2 November 1995. That meeting resolved the respondent be informed of:

"1. The issues of professional misconduct which in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions within 14 days; and

2. The Committee’s opinion that, subject to any submissions, it should resolve that it is satisfied there is a reasonable likelihood the Legal Practitioner will be found guilty by the Tribunal and that proceedings be instituted in the Tribunal with respect to the complaint pursuant to Section 155(2) of the Legal Profession Act 1987.

The issues of professional misconduct on you part are as follows:

Failure to pay barrister’s fees."

119 The letter set out the allegation in the same terms as appeared in the resolution ultimately made by the Committee on 14 December 1995 [see paragraph 138 below]. The respondent was invited to provide any reply within 14 days of 6 November 1995.

120 On 17 November 1995 the respondent replied to the Society in a lengthy letter. At paragraph 5 he advised that he had now reviewed the Atkinson file. He referred to the asserted agreement with Mr Atkinson to appear for a fee of $900.00 per day. He annexed a letter dated 8 November 1995, from Messrs. Ralph Lloyd, Sampson, solicitors of Melbourne, which referred to a conversation between Mr Cavoli of that firm and Mr Atkinson of Counsel on 6 April 1992, regarding counsel’s fees to be charged in the Punja matter. It noted those fees as $900.00 per day plus conference fees. It also noted that the respondent would brief Mr Atkinson directly rather than through Ralph Lloyd, Sampson.

121 The respondent also provided Memoranda of fees dated 31 July and 2 October 1992, both of which appear to be photocopies of letterhead Memoranda rather than plain file copies.

122 At paragraph 5 (c) (i) the respondent asserted:

"The amount billed to my client on 31 July 1992 was $15,400.56 and not $12,795.00 as alleged by you."

"(iv) It may be that I received $12,795.56 on or about 11 September 1992. Even though this amount is $2,605.00 short of what I billed."

123 The Memorandum of fees dated 31 July 1992 shows a disbursement of $5,370.00 to "Tony Kavoli, Melbourne."

124 In a letter to the respondent dated 1 December 1995, the Society wrote:

"I note your comment that you billed your client $15,400.56 and not $12,795.00. Your attention is drawn to the page of the invoice analysis book supplied by Mr Jones. It is noted that initially the amount of $15,400.56.00 was entered in the ‘billed’ column but that this amount was deleted and substituted with the amount of $12,795.00 which sum is reproduced in the ‘payment’ column."

"In closing I note that although you have previously advised me that you did not have possession of the Punja file, you are now able to supply me with copies of documents from that file, Am I to understand that you have now located the Punja file? If so please forward same to me without delay."

125 In response to that request, however, in a letter to the Society dated 8 December 1995, the respondent stated:

"7. I am not in possession of my client’s file. The copies of documents I have provided are from the ‘Atkinson file’."

126 In the same letter the respondent wrote:

"4. It is true that I billed my client for Mr Atkinson’s fees but it is not true that I received $4,500.00 towards his fees. I have only to account to my client for any money he pays me ...."

"5. ... . You will note that Mr Atkinson billed me $5,370.00 and not $4,500.00. This is consistent with the copy of the bill I provided to you. There is no logical explanation as to why I would have billed my client the lesser amount."

127 Exhibit "O" in these proceedings consists of extracts of evidence given by the respondent before the original Tribunal on 27 June 2003. On 27 March 2003 the respondent swore an affidavit filed in the proceedings, in which he averred that he had recently come into possession of "some important documents that go to my defence." In response to cross-examination, the respondent informed the Tribunal that those documents had been produced by Integra Finance.

128 The respondent said that he had been through the boxes of documents produced to him and removed such documents as he thought relevant to the proceedings, which went into evidence before the Tribunal. They were identified as a post book, general account deposit book, and cheque book together with the trust account deposit book and cheque book. All of these items were material that the respondent had claimed had been retained by Mr Jones. There were some further documents he removed from the boxes that were tendered in evidence, although in the witness box the respondent was unable to recall what those documents were.

129 In explanation of how those boxes came to be produced to him the respondent said:

"They [Integra Finance] instructed me in a matter and together with the instructions I was given these documents."

130 The respondent told the Tribunal the boxes of documents had been in storage at Kennards in Artarmon where he too had storage facilities. He was asked if he had access to the Integra Finance facility to which he said:

"I don’t believe I have access to that storage ... . I don’t believe I have access to Integra Finance’s."

131 Counsel for the Law Society before this Tribunal pointed out that a document before the Tribunal (Exhibit 1) typed on the respondent’s letterhead, and sent by or on behalf of the respondent on Friday 15th September 2006, by facsimile had as a "footer" the legend "Khera Integra Finance."

132 In evidence on 27 June 2003, the respondent was asked a number of questions about his knowledge of the whereabouts of Mr Punja. He agreed that he had travelled to Auckland in December 2002 where he lunched with Mr Punja, who was, at that time, living in Fiji. He was asked:

"And if you needed to contact Mr Punja in December last year, you could have done that?"

Respondent: "I could have, yes."

Counsel: "In fact you could have done that at any time between mid 1994 and now?"

Respondent: "Yes"

133 The Tribunal is satisfied that the respondent wilfully failed to provide the Law Society with Mr Punja’s address or contact details in spite of the obvious anxiety of the Law Society to obtain Mr Punja’s version of the question surrounding Mr. Atkinson’s fees. As the respondent conceded in evidence on 27 June 2003, at all relevant times he knew how to contact Mr Punja.

134 The Tribunal is satisfied that the Invoice dated 31 July 1992 addressed to Mr. Punja, claiming $12,795.56 costs and disbursements, identified by the Trust Account Inspector, included a sum of $4,500.00 as counsel’s fees for Mr. Atkinson. Mr Punja paid that memorandum of fees in full on or about 11 September 1992 by cheque, which was banked into the respondent’s office bank account on 11 September 1992.

135 The Tribunal accepts that the respondent informed the Trust Account inspector, that the sum of $4,500.00 included in that invoice was for Mr Grant Atkinson, barrister of Melbourne, and was the subject of dispute.

136 The Tribunal is not persuaded that the assertions of the respondent concerning alleged changes to a different memorandum of fees, or his evidence concerning negotiations about these fees is to be accepted.

137 The assertion in the respondent’s letter of 4 October 1995 that he "did not receive an amount of $4,500.00 from Mr Punja in respect of Mr Atkinson’s fees." is false. In a further letter on 8 December 1995, the respondent said: "... it is not true that I received $4,500.00 towards his [Mr Atkinson’s] fees." That statement is also false.

138 On 9 February 1996 the Law Society wrote to the respondent advising that on 14 December 1995, the Professional Conduct Committee of the Law Society had resolved:

"That the Committee is satisfied there is a reasonable likelihood the Legal Practitioner will be found guilty by the Legal Services Tribunal of professional misconduct and that proceedings be instituted in the Tribunal pursuant to Section 155(2) Legal Profession Act 1987.

Professional Misconduct

The solicitor has without reasonable excuse failed to pay the fees of M Grant Atkinson Barrister, in the amount of $4,500 such sum having been paid by the solicitor’s client, Ajai Punja, on or about 11 September 1992. It is the view of the Committee that the fact that the solicitor states that he disputes the Barrister’s bill does not relieve him of the responsibility of paying the account, particularly in the circumstances where the Barrister has recovered judgment in excess of the sum received from the client. The solicitor has without reasonable excuse failed to account to Mr Atkinson for the amount of $4,500 or $5,370 received by the solicitor on or about 11 September 1992.

Penalty

That the name of the solicitor be removed from the roll of legal practitioners."

139 On 26 February 1996 the respondent wrote to the Law Society referring to the above letter and saying:

"I herewith request a reconsideration of the matter by a joint sitting of all Professional Conduct Committees.

I advise that on 7 February 1996 Mr Atkinson proved his debt at my creditor’s meeting. Therefore the matter of his debt has come to an end.

I reiterate my innocence."

140 It appears that the respondent is, or was, under the misapprehension that the fact of Mr Atkinson proving his debt in the respondent’s bankruptcy, would, in some unspecified way, avoid the consequences of ongoing proceedings concerning allegations of professional misconduct associated with the matter. He was clearly wrong.

141 In the Affidavit Verifying Statement of Affairs sworn by the respondent on 14 December 1995, and filed in his bankruptcy proceedings, the annexed Statement of Affairs, discloses Mr Atkinson as an unsecured creditor in the sum of $5,370.

142 The respondent in correspondence with the Law Society and in evidence in proceedings before the first Tribunal hearing in June 2003 has given various explanations and conflicting assertions about Mr Atkinson’s fees. The Tribunal is satisfied that the fees claimed by Mr Atkinson were $5,370. The respondent included the sum of $4,500 as fees for Mr Atkinson in his memorandum of fees rendered to Mr Punja on 13 July 1992. Mr Punja paid Mr Atkinson’s fees in accordance with that memorandum on or about 11 September 1992.

143 The whole of the amount received on 11 September 1992 was paid into the respondent’s office account. The respondent has failed to account for the sum of $4,500 to his client or to pay Mr Atkinson.

144 Sections 61 Legal Profession Act 1987 relevantly provides:

Money received by solicitor on behalf of another

(1) A solicitor who, in the course of practising as a solicitor in this State, receives money on behalf of another person:

(a) must pay the money, within the time prescribed by the regulations, into a general trust account in New South Wales at an approved financial institution and must hold the money in accordance with the regulations relating to trust money, or

(2) In any of those three cases, the solicitor must hold the money exclusively for, and must disburse the money in accordance with the directions of, the person on whose behalf it is held.

(8) It is professional misconduct for a solicitor to wilfully contravene subsection (1) or (2).

145 The Tribunal is satisfied that in breach of section 61, the respondent paid into his office account, money received from Mr Punja for counsel’s fees due to Mr Grant Atkinson, and that he failed to pay Mr Atkinson’s fees, and has retained those funds in contravention of his obligations pursuant to the legislation.

146 The Tribunal is satisfied that the respondent wilfully contravened section 61 Legal Profession Act 1987.

147 The Tribunal is further satisfied that, in accordance with section 61(8), the respondent’s conduct constitutes professional misconduct.

GROUND 7. The respondent overcharged.

148 There are two complaints of overcharging.

149 The first relates to a memorandum of fees rendered to Mrs Ranjana Narayan, dated 8 December 1993 in the sum of $3,000 for work done between May 1990 and June 1991 in respect of her third party claim arising from a motor vehicle accident on 24 April 1990.

150 The respondent acted for Mrs Narayan for two periods, initially from about mid 1990 until about May 1993, and later from the end of September 1993 to about September 1995. In the intervening period, the respondent’s then partner, Mr. Jones, acted for Mrs Narayan.

151 Annexed to Mrs Narayan’s affidavit sworn 6 June 2002, is a copy of the memorandum of fees dated 8 December 1993 for an amount of $3,000, and a copy of a retainer agreement between the respondent and Mrs Narayan dated 26 June 1992, which provides for an hourly rate of $175.00. Also annexed to that affidavit it a letter from the respondent to Mrs Narayan dated 8 December 1993, setting out the terms upon which her third party claim had been settled:

"We are pleased to note that the matter has settled during the Pre-Trial Conference on 7 December 1993 and the settlement terms are as follows:

1. A sum of $20,500.00 to be payable to you by the insurance company by way of compensation/settlement of your claim against the Insurance Company.

2. Out-of-Pocket expenditure by you for medical treatment, to a maximum of $3000, less such amounts as the Insurance Company my(sic) have already paid to be payable to you by the Insurance Company.

3. Party/Party legal costs to be paid by the Insurance Company."

152 Ms Mary Young, a solicitor in the employ of the Professional Standards Department of the Law Society of New South Wales, had carriage of the investigation of various complaints against the respondent. She arranged for the personal injury file of Mrs Narayan to be uplifted from the respondent. That file does not disclose any work of substance being carried out by the respondent in the period covered by the memorandum of fees, namely May 1990 to June 1991.

153 Mrs Ranjana Narayan’s affidavit sworn 6 June 2002 at paragraph 19 reads:

"I say that no advice was furnished to me by Mr Khera or anyone else during the period as stated in the memorandum."

154 Mrs Narayan’s affidavit refers to some minor attendances in the latter part of 1991, and after the period referred to in the memorandum of fees. Thereafter, the file discloses standard letters to medical practitioners seeking reports forwarded at the beginning of 1992.

155 The Tribunal is satisfied that the file supports the evidence of Mrs Narayan as to the paucity of work carried out in her third party claim in the period May 1990 to June 1991. The Tribunal notes that the retainer agreement allows for an hourly fee of $175.00.

156 The Tribunal is satisfied that the charge of $3,000 in the memorandum of fees issued by the respondent on 8 December 2003, cannot be justified in terms of work carried out on behalf of the client during that period, and thus represents overcharging.

157 The second complaint of overcharging relates to the matter of the purchase by Mr Jainendra Narayan and Mrs Ranu Narayan of land at Bonnyrigg. As set out at paragraphs 85-97 above, the respondent failed to obtain a Deed of Release at the time of settlement. When that omission came to light he was instructed by his clients to obtain the Deed.

158 Mrs Narayan’s Affidavit dated 2 June 1999 annexes a memorandum of fees dated 26 August 1992 in respect of attendances relating to obtaining and lodging the Deed of Release:

"To our costs of acting for you ... including locating the necessary document, and lodgement ... at the land Titles Office, correspondence throughout, telephone attendances with you to keep you informed, including all necessary attendances, total care, skill and consideration;

$465.00"

159 The bill also sought payment of the lodgement fee of $50.00 and sundry expenses of $25.00 resulting in a total charge of $540.00.

160 On 13 November 1992, the respondent submitted a further memorandum of fees in respect of the same matter:

"To our further costs of acting for you in relation to this matter including tracing the dealing through the Land Titles Office, organising your attendance to comply with the requisitions, arranging re lodgement of the Deed then contacting St George to arrange the lodgement of the original certificate of title at the Land Titles Office, complying with their requests and attending their queries, subsequent telephone attendances on Fairfield Council and attending their requests, receiving confirmation that transaction completed, attendances upon you throughout the matter including all necessary care skill and consideration, in excess of but for you $465.00."

Disbursement

Registration Fees $105.00

Petty Expenses including faxes, postage, telephones, photocopying and sundry $198.15

161 Thus a further $768.15 was claimed.

162 On 25 February 1993, Mrs Narayan attended the respondent’s office and paid him 3 post dated cheques totalling $1308.15 representing payment of the 2 memoranda of fees.

163 On 6 September 2004, the respondent again wrote to Mr and Mrs Narayan submitting an itemised "Solicitor/client Bill of Costs" dated 6 September 1994, claiming total costs and disbursements in the sum of $1,806.39. The letter noted the previous payment of $1,308.15 and requested payment of the balance of $498.24 "as soon as possible."

164 Mr and Mrs Narayan made no further payment.

165 The itemised Bill of Costs is revealing in that the disbursements total $84.20. That does not accord with the disbursements claimed in either of the previous memoranda of fees.

166 The necessity to obtain the Deed of Release for lodgement in 1992, resulted from the failure of the respondent to ensure that document was obtained on settlement of the conveyance in 1990, and lodged at the Land Titles Office. The Deed of Release and the burdening of the land were disclosed by the contract for sale, and thus must have been, or should have been, known to the respondent.

167 Any charge by the respondent for work carried out in rectifying his error is unwarranted. The Tribunal finds that the charges of $465.00 for costs in each of the memoranda of fees dated 26 August 1992 and 13 November 1992, represent overcharging by the respondent, resulting in a total overcharge of $930.00.

168 The Tribunal is not in a position to make a determination as to what, if any of the disbursements claimed in each of those memoranda of fees, represent legitimate disbursements incurred by the respondent and makes no finding in that regard.

FINDINGS

169 The Tribunal, having considered all the material tendered in these proceedings, is of the opinion that the respondent has given false and misleading evidence as noted above. The Tribunal is also of the opinion that much of the correspondence furnished by the respondent to the Law Society is deliberately evasive and unhelpful, and at times, false.

170 The respondent is manifestly dishonest in various ways: in failing to pay counsel’s fees that had been paid by his client, and retaining those monies for himself; in his conduct of Mrs Ranjan Narayan’s third party claim in correspondence with Mrs Narayan; in correspondence with his former partner, Mr Jones in relation to costs in respect of Mrs Narayan’s claim; in correspondence with the Law Society in respect of reasons for his failure to obtain a Deed of Release for Mr J and Mrs R Narayan on settlement of their purchase at Bonnyrigg.

171 Such evidence as the respondent has given in respect of these matters contains substantial untruths and displays a determination to be evasive.

172 The fact that the respondent charged Mr J and Mrs R Narayan, and was paid two memoranda of fees in respect of the rectification of his own oversight, is further evidence of dishonesty and a failure to understand or comply with his professional obligations as a member of the profession.

173 Nothing that has been put before the Tribunal by the respondent ameliorates his conduct in these matters. There has been no indication of remorse or regret for his conduct. Nor has there been any apparent recognition or acknowledgement of the extent to which his conduct has fallen short of the standards that should be observed by a member of the profession.

174 In all the years that these matters have been under consideration by the Law Society or before the Tribunal from time to time, there is nothing to suggest that the respondent has reflected upon his conduct and recognised his failure to meet adequate professional standards. He has consistently throughout the passage of many years, denied that he is guilty of any wrongdoing.

175 The Tribunal finds that conduct of this nature is such as would "reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency" Lopes LJ in Allison v General Council of Medical Education and Registration (1894) 1 QB 750 at 763, approved in Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145. The respondent is guilty of professional misconduct in relation to each of the grounds relied upon by the applicant Law Society.

176 The "intrinsic character" revealed by the respondent’s conduct in these matters [see Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655 at 692 (Higgins J)], shows substantial defects of character incompatible with the requirements of professional responsibility involved in the practice of law.

177 The respondent’s willingness to engage in deceptive and dishonest behaviour, and to maintain that behaviour over many years, is a matter of central relevance.

178 Conduct of such a contumelious nature in respect of a number and variety of matters, leaves the Tribunal in no doubt that the respondent is not a fit and proper person to remain upon the roll of legal practitioners. Protection of the public requires that the respondent be removed from the roll of legal practitioners forthwith. No other order would adequately reflect the gravity of the respondent’s conduct. Nor would the Tribunal have discharged its duty to the public were the respondent to be permitted to remain in practice.

179 In The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Giles AJA said:

"The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practice under particular circumstances, where the practitioner is not fit to be held out, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practice do not continue to hold themselves out as fit to practice. But the object of protection of the public also includes deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues whose practice in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrents is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with."

180 The Tribunal is satisfied that the respondent is not now a fit and proper person to remain upon the roll of legal practitioners, and that he ought be removed from the position of trust that allowed him to engage in the misconduct that has been found against him. That conduct falls far short of the high standards required of members of the legal profession. That order is required for the protection of the public and to act as a deterrent to others in the profession.

181 The Law Society seeks its costs of and incidental to these proceedings and the Tribunal is satisfied that order should be made in favour of the Society.

182 This matter was commenced under the Legal Profession Act 1987, and arises from complaints regarding the respondent’s conduct prior to the coming into force of the Legal Profession Act 2004. Section 171C(1) of the Legal Profession Act 1987 relevantly provides:

171C Determinations of Tribunal

(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:

(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,

183 Having determined that the respondent is guilty of professional misconduct on all grounds, the Tribunal makes the following orders:

i. The name of Jaswant Khera be removed from the roll of legal practitioners

ii. The respondent’s practising certificate to be cancelled forthwith

iii. The respondent to pay the costs of the applicant Law Society of and incidental to the proceedings, as agreed or assessed.

iv. This decision to be published.