Legal Practitioner v Council of the Law Society of the ACT

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Burns J
• Judgment Date: 05 November 2015
• Docket Number: File Number(s): SCA 25 of 2013
• Date: 05 November 2015

Legal Practitioner

(Appellant)

and

Council of the Law Society of the ACT

(Respondent)

[2015] ACTSC 316

Before:

Burns J

File Number(s): SCA 25 of 2013

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

PROFESSION AND TRADES — Lawyers — discipline — appeal from the ACT Civil and Administrative Tribunal — referral to the Supreme Court.

Cases Cited:

Allesch v Maunz (2000) 203 CLR 172

Balfour and Clark v Hollandia Ravensthorpe NL (1978) 18 SASR 240

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Fox v Percy (2003) 214 CLR 118

Lukatela v Birch [2008] ACTSC 99

O'Donnell v Environment Protection Authority (2012) 268 FLR 48

PAAN Investments Pty Ltd (In Liquidation) v Commissioner for Revenue for the Australian Capital Territory (2014) 290 FLR 1

Re Hoffman; Ex parte Worrell v Schilling (1988–89( 85 ALR 145

The Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209

Legislation Cited:

ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 79, 81, 82, 83, 84, 85, 86

Legal Profession Act 2006 (ACT) ss 386, 387

Legal Profession (Solicitors) Rules 2007 (ACT) rr 1.1, 1.2, 36.1

Representation:

Counsel

Self-represented (Appellant)

Mr N Beaumont SC with Ms T Power (nee Dinh) (Respondent)

Burns J

1 On 16 May 2012, the Australian Capital Territory Civil and Administrative Tribunal (the ACAT) published its reasons for finding the practitioner guilty of one count of unsatisfactory professional conduct and two counts of professional misconduct. On 31 August 2012, the ACAT ordered that the practitioner not be granted a local practicing certificate for three months, and that he pay the respondent Law Society's costs of the proceeding.

2 The practitioner appealed from the ACAT's decisions on liability and penalty.

3 The practitioner was granted leave to file a Further Amended Notice of Appeal, which set out the grounds upon which the appeal was ultimately argued. The practitioner alleged the ACAT fell into error:

• (a) by finding that he had acted negligently by failing to respond to the 18 February 2008 letter;

• (b) by finding that he had acted negligently in forwarding the incorrect contract;

• (c) by finding that he had acted negligently in failing to produce the correct contract for a period of eight weeks from 5 September 2008 to 31 October 2008 in circumstances where the matter required urgent attention;

• (d) by finding that he both deliberately and recklessly misled the complainants in his letter dated 20 November 2008;

• (e) by finding that his allegedly reckless misleading of the complainants in his letter dated 20 November 2008 amounted to professional misconduct;

• (f) by not finding that the mortgagee's solicitors contributed to the delay;

• (g) by finding that he had threatened and intimated the complainants in his letter dated 12 December 2008;

• (h) by finding that the complainants suffered economic loss; and

• (i) by failing to properly consider the unsolicited offer of compensation made by him.

The proceeding in the ACAT

4 The practitioner was the holder of an unrestricted practicing certificate and the principal of a law firm practicing in the ACT. In 2007, he acted for two clients, referred to as SD and MG (the clients), on the joint purchase of a residential property in the ACT (the property). He also acted for MG on a separate sale of a property in her name. Settlement of the joint purchase occurred on 9 November 2007.

5 A problem arose preventing registration of the transfer of the title to the jointly purchased property. SD's middle name was included in his description in the mortgage document, but it was not included in the transfer handed to the complainants' mortgagee on settlement. As a result, the transfer and security documents could not be registered by the mortgagee.

6 The mortgagee's solicitors wrote to the practitioner's firm on 21 February 2008 saying, ‘we are still unable to register security documents’ due to the difference in description of SD in the documents, and that an amended transfer incorporating SD's middle name was required. For this purpose they required the original contract for sale, which was with the practitioner. The letter concluded, ‘Your urgent assistance on this matter would be appreciated’.

7 As the ACAT observed, there was controversy as to whether that letter was received by the practitioner, and no contract was forwarded by him prior to another letter being dispatched by the mortgagee's solicitors on 21 April 2008. This letter referred to the previous letter of 21 February 2008 and stated that the mortgagee's solicitors were still unable to register the security documents as they were still awaiting the original contract for sale from the practitioner. The letter referred to the need for the matter to be addressed urgently, as SD and MG were in breach of the terms of the loan contract. The letter concluded by requesting that the practitioner ‘rectify this matter’ within seven days.

8 The practitioner sent a contract to the mortgagee's solicitor on 28 April 2008, but unfortunately it was the wrong contract, and related to the separate transaction involving the sale of MG's property.

9 The ACAT noted that there was controversy about what contact the mortgagee's solicitors had with the practitioner's firm from 28 April 2008 until early September 2008. The mortgagee's solicitors alleged that they made phone calls to the practitioner's firm, but the practitioner said no such calls were received.

10 MG and SD became aware that there was a problem on about 7 July 2008 when a rates notice in the name of the previous owner was sent to the property. They initially took this up with the mortgagee, but, on 19 August 2008, they sent a fax to the practitioner's firm:

RE: SETTLEMENT ON 60 MARY KITSON STREET WATSON BLOCK 15 SECTION 104 — THE LANDS AND TITLES OFFICE WEREN'T NOTIFIED

Settlement on the above property was effected 9 November 2007. Our solicitor was [MH], who I believe left [the firm] shortly before settlement occurred. I recently received an overdue water/sewerage bill and a rates notice, both overdue and addressed to the previous owners, the Sewells. (Previously the bills had been going to the Sewells' PO box, so the first time I saw the notices was when they started coming to our home address.) I rang the rates and land titles people about this and they said they hadn't received the documentation of the change in ownership.

Could you please fax the documentation re the change the ownership on council rates and water notices to the lands and titles office immediately, and then email me to confirm this has occurred…?

The situation is making us quite worried that our water is going to get cut off. The bills are also racking up since we haven't been receiving them quarterly and we're accruing interest on these bills. We're now in the situation that we owe about $1500 which we'll have to pay in one go — the bills are going to keep mounting if this situation isn't resolved promptly.

11 There was evidence before the ACAT that the practitioner was ‘away’ and did not receive the above fax. MG and SD sent a further fax to the practitioner's firm on 25 August 2008:

RE: 60 MARY KITSON STREET WATSON BLOCK 15 SECTION 104

Hi,

As discussed on the phone this morning, settlement on the above property was effected 9 November 2007. I've recently become aware that ownership is still in the name of the previous owners (CJ and KL Sewell) meaning that we're unable to pay the rates and water/sewerage bills. I've attached the rates notice as discussed. Our bank is Aussie Home Loans.

12 On 5 September 2008, the mortgagee's solicitor wrote to the practitioner referring to the practitioner's letter of 28 April 2008 and advising that the wrong contract had been sent and asking the practitioner to forward the correct contract ‘as soon as possible’.

13 On 30 September 2008 at 10.23 am, SD sent an email to the practitioner referring to a telephone conversation between MG and the practitioner on 27 August 2008 in which the practitioner was alleged to have told MG that he had sent the ‘relevant information’ to the ‘ACT titles office’. The email said that SD had contacted the ACT titles office on 30 September 2008 and was told that it had not received the alleged fax from the practitioner. SD concluded the email by requesting that he be provided with a copy of the fax so that he could discuss the matter with the titles office.

14 At 11.09 am, the practitioner responded by email simply saying that he would attend to SD's ‘enquiry’ as soon as possible.

15 On 20 October 2008 at 10.59 am, the practitioner sent an email to SD saying that he was personally going to his archives on Sunday 26 October 2008 to locate the file. At 2.02 pm that day, SD responded, saying:

That would be good — we are very anxious to resolve this matter.

Another 6 days till Sunday 26/10 may not seem very long to wait, but it is already quite a long time since we raised this with [the firm]. [MG] first contacted [the firm] on 19 August about this issue (and was subsequently told the matter had been sorted), and I spoke to you in late September. In three weeks it will be the one year anniversary of settlement.

Can you let me know what steps you have been taking since you emailed me on 8 October, after you talked to Aussie Home Loans? We had...