| VR87 OF 2008: LPCC V CHIN's decision in [2012] WASAT77 1 message |
| Nicholas N Chin | Thu, May 31, 2012 at 10:09 AM | ||||||||
| To: Legal Profession Complaints Committee | |||||||||
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Wednesday, May 30, 2012
POINT OF LAW WITH REGARD TO ITEM 11 AND ORDER NO.6 OF WRITTEN SUBMISSION DATED 30.5.2012
Tuesday, May 29, 2012
MR. CHIN WRITTEN SUBMISSION BEFORE SAT IN VR 87 OF 2009
IN THE
MATTER OF Legal Profession Act, 2008
LEGAL
PROFESSION COMPLAINTS
COMMITTEE
………………………………………………………….Applicant
And
NI KOK CHIN
………………………………………………………..Respondent
Matter
Number: VR 87 OF 2009
Application
lodged: 30 June, 2009 .
RESPONDENT’S SUBMISSION ON PENALTY AND COSTS
Date of
Filing: 31st
May, 2012
Filed on
behalf of the Legal Profession
Prepared
by: NI KOK CHIN
Address for
service: Phone:
08 92757440
387, Alexander Drive Mobile
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INDEX TO LIST OF HEADINGS
PAGE NUMBERS
Showing
Summary of Jurisdictional Errors[1]
in [2012] WASAT77 – VR 87 of 2009 – LPCC v CHIN delivered 24.4.2012 (Judgment).
Item Nos.
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Nature of Jurisdictional
Errors.
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Order Number
of
Judg-ment
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Nature of Order
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1
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15 and 19 thru 52.
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1.
1. Mr. Wally Ozich as
mentor [15] supervised the Respondent as trainee lawyer and agent for himself
in performing the legal work for the Vendors as he has been appointed the
solicitor for the Vendors by the Vendors [19].
2. The Respondent [23] as
agent for the mentor is thus immune from prosecution for any willful
misconduct under the principle of vicarious liability (the trainee lawyer).
3. The Vendor Mrs. Kim
Wiles [31] did attend at the office of the mentor and thereby by her conduct
did acknowledge the mentor was her solicitor by paying him the legal fees of
$400.00 [27] (evidence provided to tribunal) for his service as solicitor for
protecting the interests of the Vendors [34] (Vendor’s conduct).
4. Respondent as the trainee
lawyer acted as agent for his mentor as Vendor’s Solicitor also acted as free
agent for his son Paul Chin as Purchaser (pro-bono).
5. A probono free agent as
distinct from a trainee lawyer does not public duties as a court officer to
the Vendors whose interests were already protected by the mentor.
5. Consequently, the
Respondent as the probono free agent did not have conflicting interests with
those of the Vendors [31].
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1(i)
Result: No factual circum-stances
which can indicate that the
Respon-dent acted in a
conflict of interests situation and there-fore no penalty.
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The Respon-dent is NOT guilty
of Profes-sional Miscon-duct[2]:
1. Pupil- Lawyer acting for
the vendors of Centenary Lunch Bar.
2. Pupil- Lawyer a likely
witness to the dispute of the sale of business.
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2
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15, 19 through 52.
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2.
1. The pro-bono free agent
of the Purchaser [19] offered to pay Mr. Thies a lawyer [44(g)] the quantified
sum for his solicitor’s supervisory work of the probono free agent in DCA No.
2065 of 2004 (the offer).
2. The offer [46, 47] of a
quantified sum was made to Mr. Thies on the ground that the mentor would be
acting in conflict of interests if he were to supervise the free agent whilst
he was at the same time acting as solicitor for the Vendors [15, 19] (Offer
to Mr. Thies).
3. Twenty five percent of
the non-contingent successful party and party costs in DCA 2065 of 2004 [50] is
proposed by the offeror as a measure of the quantified sum so as to avoid
future dispute between Mr. Thies and the Respondent (the quantified sum).
4. The remuneration to the
offeree Mr. Thies shall be paid from the offeror’s own pocket irrespective of
outcome of the DCA 2065 of 2004 [47] (the payout for Mr. Thies supervisory
work).
5. Mrs. Thies conduct [48] shows
that he did not accept the offer of the Respondent or that he breached the
fundamental terms of the contract. This gave the Respondent the option to EITHER
choose to have the contract on foot and sue him for damages OR to abandon the
contract and sue for damages [47] (the rights of the Respondent).
6. There is no willful
professional misconduct [49] on the part of the pro-bono free agent as he is
not under the jurisdiction of the Applicant in that capacity. Besides, there is no dishonesty of the free
agent which caused him to deprive funds or misappropriate funds from any
person including Mr. Thies (No dishonesty or fraud).
7. Vendors Costs did not eventuate and it
was never intended by Respondent to use it to pay Mr. Thies for work he did
not do. The work he was to perform is to supervise the Free Agent’s work and
not the trainee lawyer work.
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1(ii)
Result:
No willful profess-sional miscon-duct[3] as the the work to
be performed by Mr. Thies is for supervise the Free Agent legal work and not
the work of the Trainee lawyer which is being supervised by the
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Respon-dent guilty of
Professional Miscon-duct by:
1).Making a proposal to
Timothy Thies that he avail himself of costs for work he did not perform.
2) The Defendants or the
Vendors of the Centenary Lunch Bar, in the Case of DC 2065 of 2004 is to pay
for the proposed costs.
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3.
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17, 53 thru 69
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3.
1. Amongst the 331 pages [17]
delivered to the tribunal is Book 1 of the Notice of Originating Motion filed
in
2.At pages 222 to 223 of
Book 1, the report of Mr. Roy Gascoigne who was the Private Investigator and
also a former Police Officer. The
report is accompanied by an Accountant’s Report at pages 224 to 224.
3. At pages 225A through
225D in four pages, Dr. K.S. Chan in turn explained at length the predatory
nature [54 (e),(f), (h), 60] and particularly also at sub-paragraph (l) of
page 225B, she said the following words:
“I was DOUBLE-CHARGED and
had DOUBLE-PAID $11,349.46 for Legal Fees to Katherine Whitehead and Pino
4. The investigator is not
unidentified [66] and not nameless [68].
5. The Respondent is
therefore NOT GUILTY, at 69, of having “failed to treat a professional
colleague with the utmost fairness and courtesy and that he made allegations
of improper conduct against fellow practitioners without a reasonable or
proper basis for doing so…”
6. No penalty because the
Respondent did not commit any offence wilfully and therefore no professional
misconduct.
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2
Result: 1) No willful profess-sional
miscon-duct as there is no malice or false allegations. The allega-tions are
justified by the factual circum-stances.
No penalty.
2) The reasona-ble basis is
evi-
denced by the documentation
of Dr. K.S.
Chan herself.
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Profes-sional Miscon-duct:
1).fail to treat a fellow
practi-tioner Mr. Pino
2). No reasona-ble or
proper basis for making such allega-tions.
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4
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70 thru 102.
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1. CULPABLE:
1. Spunter Pty Ltd [76(a)] or
its director Maurice Law (Spunter) [71] had subpoenaed its former solicitor Mr.
Taylor to file on or before 29.11.2011 at the tribunal in VR158 of 2011 the
bank statement (the Subpoena).
2. The purpose of the
Subpoena is to establish the fact that the hitherto disputed court fees of
3. The Impugned Court Fees
is in relation to the confusion created by Registrar Powell in supporting the
false story of Mr. Taylor
[71, 76, 79, 94] that
4) The Confusion of
Registrar Powell is in relation to matters referred to in this judgment [75,76,79,82,88,89,92,96,99,102]
(the Credibility of Registrar Powell).
5. The Credibility of
Registrar Powell [87, 88,97] has ramifications in the miscarriages of justice
to both the Respondent and Spunter in terms of the following:
5.1. the disputed and unenforceable
costs orders of Master Sanderson in
5.2. the disputed and unenforceable
costs orders of Owen JA in CACV 107 of 2008 against the Respondent alone
because he is the only Appellant in that case (Owen JA’s Costs).
5.3. the deprivation of the
Respondent of his rights as the s.244 LPA 2003 Salvour [71] in the estate of
Nancy Hall in the Hazelmere and Mt. Lawley Properties as agreed to by Justice
Pullin in CACV 107 of 2008 in the sum of $20k plus continuing Continuing
Salvour’s costs (the Salvour’s Costs);
5.4. the deprivation of the
rights of Spunter as the legitimate creditor of the estate of Nancy Hall in
DCA 2509 of 2002 handed down by DCJ Sweeney on 11.8.2011 (the Legitimate
Creditor’s Rights).
5.5. the deprivation of the
caveatable interests of both Spunter and the Respondent in the Hazelmere and
Mt. Lawley Properties of Nancy Hall Estate vis a vis the rights of its
administrator Mrs. Gannaway through her solicitor Mr. Christopher Stokes in
the decision of Justice Simmonds in
5.6. the probable cause for the resignation
of Registrar Powell as a result of his attempt to become the taxation master
of the Master Sanderson Costs and Owen JA Costs as a judge in his own cause (the
Resignation).
5.7. The
5.8. The joint Application
of Spunter and the Respondent in
5.9. The issue of the
Credibility of Registrar Powell and the Falsification of Court Records has
never been decided in previous decisions and is therefore a live issue for
the Judicial Reviews in the Judicial Reviews (non Res Judicata issue).
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3.Result: No willful profess-sional
miscon-duct be-cause the allega-tions of the under-hand tactics and the delibe-rate
mis-leading of the court by of Mr.
Respon-dent was solicitor
for
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Profes-sional Miscon-duct:
1. Solicitor David Taylor
had used underhand tactics to falsify court documents in
2. David Taylor had
deliberately misled Registrar Powell about that falsifica-tions and that the
Respondent was the solicitor on record for Ms. Nancy Hall in
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5
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103 thru
110.
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4.
1).The Respondent [15,103] as
trainee lawyer has no culpability as he was then under supervision by his
mentor in the preparation of a “will” for Mrs. Mathias. He is immune from any bad faith prosecution
by the Applicant under the principle of vicarious liability for any
imputation for any willful misconduct [106, 107,108] because he did not go on
a frolic of his own or breached his fiduciary duties (Immunity of a trainee
lawyer).
2) The “will” which he
prepared was subject to the confirmation and rectification by his mentor but
before that could happen, the disputed instructions [106, 107,108] to the
Respondent was withdrawn [134] from him on the ground that the client had by
then realized that she had incurred too much legal costs and wanted to get out
of the situation [109, 110] (the Mistakes of Mrs. Mathias).
3) The Mistakes of Mrs.
Mathias caused her to attend at the office of the mentor and voluntarily
asking for her Complaint to be settled by 19.10.2004 by way retracting her
complaint voluntarily in the aftermath of her having in bad faith lodged a
complaint with the Applicant on 1.9.2004 (the Mrs. Mathias Conduct).
4) As a follow-up to Mrs.
Mathias Conduct, she contacted the Respondent by telephone voluntarily on
18.10.2004 [142]. She arranged for the
terms of the settlement
[143] with the Respondent
on 19.10.2004 with no bad faith from the Respondent. This fact was recorded
in writing by the Respondent dated 19th October, 2004 [142] which indicates
that she wishes to withdraw the complaint [138 to 145] voluntarily (the
Retracted Complaint Occurred after the Complaint).
5) The
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4(i)
Result:
No willful profess-ional mis-conduct
as there is no decep-tion or dis-
honesty. Respon-dent is
remorse-ful and accepts the repri-mand of his mentor and is ready to make
amends.
The retrac-tion of the
complaint occurred after the complaint is not a subversion of the
jurisdiction of the Appli-cant as it came voluntarily from Mrs. Mathias.
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Professional Misconduct in
failing to reach or maintain a reasonable standard of competence and
diligence in drafting:
a) a will; and b) a trust
deed for Mrs. Naili Mathias.
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6.
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116 through 126
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5.
1).The legal work was
required by Mrs. Mathias and it was performed for her accordingly by the
Respondent as a trainee lawyer under supervision [116, 122]. The justified
costs for the extra work was inserted as an afterthought after the costs
agreement was written alone justifies the Insertion made at the time of the
drafting of the costs agreement but before signature (the Justified Insertion).
2) The Justified Insertion needs
to be done in the “squeezed space” [123], otherwise it would not be called an
Insertion. The fact that it was not initialed [124, 125] could mean that it
could have been made before signature rather than after signature [122] (The
nature of an Insertion).
3) The Respondent could not
remember the exact sequence of which comes first, the signature or the Insertion
because it was never significant to him.
All he could remember was that the research work needs to be done and
it was taking the hours and after the costs agreement was written, something
important that was discussed earlier was left out. The Respondent made it clear that as soon
as it was signed or INSERTED a copy was provided to Mrs. Mathias. WHERE IS
THAT
3) The bargain was struck
and the work was performed and therefore the costs had to be paid. Mrs. Mathias Conduct in the aftermath as
explained by the Mistakes of Mrs. Mathias as cited above including her
refusal to attend the hearing of this judgment shows that she no longer wants
to complain and is satisfied with the status quo [119, 121].
4) No willful professional
misconduct coupled with the fact that the complaint was voluntarily retracted
and there was no dishonesty, nor any misappropriation of funds [126].
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4(ii)
Result:
No willful miscon-duct as
no property has been misappro-priated, no dishonesty and fraud. The Respon-dent is remorse-ful of his
innocent mistakes. The com-plaint has been with-drawn and there is no
subver-sion of the jurisdic-tion of the Applicant. Client non-consent for the
Insertion is not proven.
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Professional
Misconduct: 1) inserting any
additional provisions into a costs agreement
2) without his client’s
consent.
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7.
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127 thru 133.
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6.
1) The work [138] for the
“will” and trust deed originally claimed at $1,732.00 [130]
and the Mondial Insurance
Claim at $350.00 [132] totaling $2,032.00 was discounted by the Respondent as
agent for his
2) The Receipt of $300.00
represents a generous discount of $1,732.00 is misapprehended by the
Applicant that the Respondent had a consciousness of guilt (the Imputed
Consciousness of Guilt).
3) The Misapprehension is the
prosecutorial misconduct of the Applicant because it is impregnated with
malice based on the Imputed Consciousness of Guilt and the Invalid
assumptions that relates to the above argument of Justified Insertion and to
the Impugned excessive charge of $350.00 [132] for the Mondial Insurance
Claim (The Misapprehension).
3) The Misapprehension is
refuted by the Justified Insertion and the Non-Excessive Charge [132]: Legal fees of $350.00 is warranted on the
ground that the condition of the impugned Mondial Costs Agreement states that
$300.00 is payable if the compensation payout is $1,000.00 or less but the
actual compensation payout exceeds that limit at $1,591.00 [129]. (However, the
fact remains that there is no original intention of the parties to treat this
as a contingency payment) (Misapprehension Explained).
4) No intention to derive
any pecuniary advantage [130, 132] (limited to the Receipt of $300.00 for the
mentor) by the Respondent for himself as he was a trainee solicitor working
under supervision of his
5) Respondent as trainee
lawyer was not the solicitor but the agent for the mentor and has no
culpability as he did not receive any payments for the job he had done under
supervision of his mentor.
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4(iii)
Result:
No Profes-sional
Miscon-duct as only one settlement sum of $300.00 was received for the two
transactions. No willful miscon-duct
on the ground of the misappre-hension of the Appli-cant’s prosecutorial
misconduct based on bad faith.
No disho-nesty or fraud.
No penalty.
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Professional Misconduct:
Charging Mrs. Mathias
excessive fees.
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8
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134 thru 137.
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7.
1). The situation is that
of the reasonable subjective perception of an indignant novice lawyer in the
person of the Respondent feeling distraught and outraged by Mrs. Mathias
unreasonable termination of her Mandate to him (The Outrage).
2) The Outrage is the
result of the Respondent having been frustrated in his first embarkation on
the journey of a novice lawyer in the preparation of the inchoate “will” and
trust document to suit the personal circumstances of Mrs. Mathias that was
pending the approval of the
3) Any novice lawyer in the
shoes of the Respondent would have been subjected to such subjective feelings
of the Outrage and the Frustration (the Reasonable Conduct).
4) The Respondent is remorseful of his
writings and his conduct [135, 136,137] having regard to the Outrage, the
Frustration and the Reasonable Conduct and sincerely apologizes to the
Regulator and the Applicant that such misconduct shall not be repeated in the
future (the Apology).
5) The Respondent is immune
to prosecution under the cover of vicarious liability.
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4(iv)
Result: Guilty of Unsatisfactory
Conduct only if found to be culpable but is seeking an apology.
No dishonesty or fraud.
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Professional Misconduct:
Using intemperate and
offensive language in a letter to Mrs. Mathias.
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9.
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8.
1). There is no “subversion
of the jurisdiction” of the Applicant on the following grounds:
1.1. The benefit of the
doubt of the alleged impropriety of the Insertion [125] should be given to
the Respondent.
1.2. The imputed bad faith [124,125]
of Mrs. Mathias ameliorates the blameworthiness of the alleged Insertion
before signature with her consent.
1.2. It is not good law to
say that Mrs. Mathias do not have a right to retract her own complaint [140,
141] as expressed by Member Gerard Butcher of the Victorian Civil and
Administrative Tribunal should be heeded by this tribunal in Legal Services
Commissioner v Brasse (Legal Practice) [2008]
“It may well be that
matters which are the subject of complaint can be resolved between the legal
practitioner and the client or indeed other person who has made the complaint
and it would never be said that this should not be attempted”
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4(v)
Result: No willful
misconduct as there is no such jurisdic-tion of Applicant to be subvert-ted
by the Respon-dent. The law permits the retraction of the Com-plaint.
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Professional Misconduct:
Respondent attempted to
subvert the jurisdiction of the Legal Profession Complaints Committee.
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10
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76, 93, 94, 121, and 147 thru
165.
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2. CULPABLE:
1). The unilateral
communication [152] between the Associate of Jenkins J and the Respondent is
short-lived [164] as explained [156] and as evidenced at page 40 of the Book
1 referred to at item 4 above. The
purpose of the short-lived unilateral communication [160] is for the
Respondent to use it as a Shield instead of a Sword against the anticipated
underhand tactics of David Taylor [157, 158, 159] to hide his default through
the court machinery of his non-compliance with the time of the essence Order
of Jenkins J dated 20.1.2006 in
2) The Strategy of the
Shield is devised by the Respondent for the purpose of protecting himself
from the future effects of the words of Mr. Taylor when he exuded confidence in
himself that he has his way with the judicial system by his words to the
effect: You can do what you like. I do
not care. I do not want to compromise with you on this issue of the
falsifications of the filing date.
2) Up till today and still
continuing, the undisputed fact
remains that the Impugned Court Fees for
3) This fact of the False
Receipt came to light as the inevitable truth in VR158 of 2011 on 29.11.2011 but
it was tampered with and is now at the time of writing being considered by
the Supreme Court in
5) The Invoice obtained by
Maurice Law from the Supreme Court Registry available at my blogspot is the
evidence of the Fraud on the court by Mr. Taylor found at
http://nicholasnchin.blogspot.com.au/2011/06/invoices-and-receipt-obtained-from.html#comments
(the Evidence of the Falsifications).
3) If the impugned court
fees are never paid, it is a fiction for Registrar Powell, David Taylor, Their
Honours Owen JA in CACV 107 of 2008, Master Sanderson in
4) The Respondent’s communication
with Jenkins J for the purpose of exposing the Non-Compliance with Jenkins J
Order and for averting the impending disaster in defence of his then
vulnerable and disabled client in the person of Ms. Nancy Hall (who died
grieving the miscarriage of justice) was taken up seriously through the
prosecutorial misconduct of the Applicant to favour Mr. Taylor and Registrar
Powell (the Mr. Taylor Prosecutorial Misconduct).
5) Another example of the prosecutorial
misconduct happened when the Applicant look with askance at [162, 163] upon
the complaint of serious professional misconduct by Mr. Dean Elek-Roser for
writing a non-shortlived unilateral communication to His Honour Justice
Hasluck in
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5:
Result: No profess-sional
miscon-duct as a result of the Prose-cutorial Miscon-duct of the Appli-cant
and its bad faith towards the Respon-dent.
Mr. Elek-Roser writing unilateral letter to Justice Hasluck for an ulterior purpose is consi-dered a
triviality whereas the Respon-dent’s writing to Jenkins J for a good purpose
is a profes-sional miscon-duct.
David Taylor was notified
of this commu-nication 2 days later not as a sword but as a shied to defend
an innocent and disabled client, Nancy Hall.
No Dis-honesty or fraud. No
Penalty.
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Professional
Misconduct: 1). writing to Justice
Jenkins who had delivered her judgment in
2). seeking legal advice in
a matter of which the Respondent was retained by Nancy Hall;
3) without notifying David
Taylor as solicitor for Spunter Pty Ltd.
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11
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166 thru 176.
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3. CULPABLE:
My response letter to Ms.
Anna Buckley bearing the ref. A15/06 and dated 26.5.2006 at item (1) M &
J Metals Ltd (open file) states the following facts:
1). On 9.2.2005, I started
work for M&J and by 8.3.2005, Respondent was paid $500.00 as my legal
costs that was originally agreed at $1,000.00 but was reduced after work had
been performed for the Creditor Client (First Non-Contingent Fee Payment for
work done).
2) The judgment sum due
from Mr. White on 11.8.2005 was $8,418.90 as at the 11th day of August, 2005
due for an amicable settlement including interests and payments are to be
made to the Respondent as per the terms at 166 through 169 (Quantum of Debt
before Compromise).
3).M & J at time of
compromise on 11.8.2005 agreed to the Debt to be paid by an upfront payment
followed by 8 monthly installments with the last installment being $935.65
instead of $1,000.00 for each of the seven Installments, taking into account
interests charges (the Compromised Payment at the Directions of Client
Creditor).
4) The $2,000.00 [168,169]
upfront payment is for the satisfaction of the Respondent Non-Contingent
Legal Costs for legal work performed for the Creditor Client up to 11.8.2005
(the Second Non-Contingent Legal Costs Payment).
5) A separate arrangement
was made between the Client Creditor and the Respondent for the commission to
be paid for the debt collection of the Eight Installments which has nothing
to do with the legal work performed by the Respondent for his Creditor Client. The Commission for the Installment Debt
Collection is struck at 30 per cent [171(e), 173] (the Debt Collection
Commission).
6). Respondent wanted to go
to Malaysia for a three month reading in chambers stint from 5.9.2005 and
returning on 5th day of December, 2005. Respondent therefore issued a cheque
representing the advance payment of $700.00 to cover the payment of the first
installment of debt collection due on 12.8.2012 as he was relying on the
bonafides of the debtor to bank in the first installment to honour his part
of the bargain during his temporary absence. This is in accordance with the
s.137 Directions of the Creditor Client with regard to the mode of debt
collection for the eight installments (Advance Payment for the First
Installment).
7).When Respondent returned
to
8) Thereafter, Mr. White the
debtor was unable to pay and at the same time he was applying for
deregistration of his corporate body debtor Finebeam Pty Ltd. The Respondent
then applied on behalf of the Creditor Client for the deferment of the deregistration
of Finebeam, which was granted to M & J for 180 days (Deferment of
Deregistration).
9). After further legal
works to pursue the debtor company, the Client Creditor M & J indicated its desire no longer to pursue
the matter. In the result, M & J
is indebted to me in the sum of $700.00 to the Respondent for the advanced
payment made to it by the Respondent on 12.8.2006 as all payments made by
Debtor were promptly paid over to the Client Debtor (the Debt of Client
Creditor).
10) The costs of extra
legal work in the aftermath of the Debtor Reneging on the Compromise in the
Invoice for $789.69 dated 10.12.2007 together with the Debt of the Client
Creditor totaling $1,489.69 wre never paid to the Respondent (Debt still owing
to Respondent by M & J Metals).
11) Client Creditor had
expressed its desire not to continue with the litigation as its costs are disproportionate
to his returns and therefore it is not a viable venture. The Respondent received a net income of
$1,010.31 [171(f)] for all his honest legal works performed by him for the
Client Creditor. There was no
complaint by the Client Creditor and this again shows the Prosecutorial
Misconduct of the Applicant. (the M &
J Prosecutorial Misconduct).
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6:
Result:
No willful profes-sional
miscon-duct or Unsatisfactory Conduct.
Respon-dent received two pay-ments for work done as directed by his
Client Creditor in accor-dance with the s.137(2) direc-tions. There is no
contin-gency payment for the debt collection of the eight installments at a
commission payable to the debt collector.
No dishonesty and no fraud.
Respon-dent only received net income of about $1k instead of the $5k as
alleged by the Appli-cant.
No Penalty.
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Unsatisfactory Conduct:
1).seeking to receive
remunera-tion from M & J Metals which varies according to amount of debts
to be recovered.
2).In addition to costs
obtained from the opposing party.
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12
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177 thru
193.
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4. CULPABLE:
1). The Respondent [177]
was then an independent lawyer and is not working under supervision.
Therefore, he has full responsibility for what he did as he cannot hide
behind the façade of vicarious liability and his degree of blameworthiness is
entirely his if he were found to be guilty of any willful misconduct or
engaged in any form of dishonesty or had derived any pecuniary advantage or
there has been an unlawful misappropriation of funds (Full Culpability).
2). At 178, “drawing a lot”
means that the Respondent of his own volition chose which client he wanted to
represent and in this case the lot fell upon Tylor instead of Fleay as the
most pathetic person that he chose to represent in court (Tylor is the
Respondent’s Client).
3) The Respondent accepts
all the statements of facts [177, 193] but would like to elucidate on the
point of error in this judgment, with regard to the concept of conflicting interests existing between Tylor
and Fleay (clients’ conflict of interests) as distinct from the conflicting
interests then existing between the Respondent and Tylor or between
Respondent and Fleay (lawyer-client conflict of interests), in terms of the
following:
3.1. After having been
apprised of the three different stories as narrated by Tylor, Fleay and
Powell, who were the victims of police arrest on 14.3.2005, the Respondent
made a decision on who he needs to represent in court is the one who has
committed a grievous crime (Who needs legal Representation).
3.2. He does not need to
represent Fleay because he is not the owner of the Cannabis caught in his car
with intent to sell and supply. He did
not commit a grevious crime vis a vis Tylor who needs Legal Representation
(the Owner of the Commercial Cannabis).
3.3. The real owner of the
Commercial Cannabis is Tylor and he confessed to the truth before the Respondent
(The Real Supplier of the Commercial Cannabis).
3.4. Powell is out of the
picture because he is not the Real Supplier of the Commercial Cannabis nor is
he involve in transporting it ( Powell’s non-involvement).
3.5. True to his duties to
the court first and then to the client later, he advised Tylor to plead
guilty as soon as possible as the Real Supplier of the Commercial Cannabis
(the Real Criminal is advised to plead guilty).
3.6. True to his paramount
duties to the court, he decided to act for Tylor if he were to appoint him as
his lawyer (the lot fell upon Tylor).
3.7. As soon as he is
appointed the lawyer for Tylor, his interests as Tylor’s lawyer coincides
with his own interests to defend Tylor by advising him to plead guilty to the
charge as the Real Supplier of the Commercial Cannabis ( the Coincidence of
the Interests of the Respondent and the Interests of Tylor).
3.8. Since Fleay admits to
both Tylor and to the Respondent as Tylor’s counsel that he is not the owner
of the Commercial Cannabis, Fleay’s interests does not conflict with Tylor’s
interests nor does it conflict with the Respondent’s interests (Respondent’s
and Fleay’s Interests are non-conflicting).
3.9. Because Respondent’s
and Fleay’s Interests are Non-conflicting, it was alright for Respondent to
write the preliminary submissions for Fleay while advising him to get find a
new lawyer to represent his own interests to plead not guilty to the charge
that he is a Supplier of the Commercial Cannabis at the Magistrates Court in
Perth (No conflict of interests for the Preliminary Work).
3.10. Fleay took
Respondent’s advice to defend himself in the Collie Magistrates Court using a
different counsel independently of the trial of the Tylor at Perth
Magistrates. Tylor pleaded guilty to
those charges and was fined (Respondent’s Defended Tylor alone).
3.11. Respondent Defendant
Tylor alone is representative of the principle of law that he must have
absolute loyalty to Tylor only; this loyalty prevents the Respondent from representing
the interests of Fleay which must satisfy the condition that they are adverse
to those of Tylor only and this is not the case because the two parties
interests do coincide and they do not conflict (No Professional Misconduct).
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7(1)
Result:
No willful profess-sional
miscon-duct because a lawyer cannot know that Fleay and Tylor interests are conflict-ting
until he is aware of the truth. Once the truth dawns upon him, he had by then
exer-cised his cons-cience and respon-sibility not to act in conflict of
interests.
Once the lawyer decide to
represent one party, his interests coincide or merged with the repre-sented
party. The lawyer’s interests then
must not conflict with a third party who has adverse interests to his client
or to the merged interests of the lawyer.
In this case, the lawyer’s
interests does not conflict with those of Fleay.
No disho-nesty and no
fraud.
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Professional Misconduct:
1).for giving legal advice
to and representing two parties between 14.3.2005 and 31.8.2005 in criminal
charges.
2.In circum-stances where
the two accused’s interests were or were potentially in conflict.
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13
|
191 th-rough
197.
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5. CULPABLE:
1). At 191(4) the “apparent”
conflict of interests between Fleay and Taylor means the alleged conflicting
interests are not real but are a false assumptions of the Applicant or a
figment of its imagination (the False Assumption).
2) The False Assumption is
apparent from the following facts:
2.1. Fleay and Tylor were
united in a common purpose to see their common lawyer the Respondent to solve
their common problem with the police (the Unity of Fleay and Tylor with a
common problem).
2.2. The common problem is
that the police got it wrong:
2.2.1. Fleay was not the
owner of the Commercial Cannabis but was wrongly charged.
2.2.2. Tylor being the
rightful owner of Commercial Cannabis was not charged and he would not want
to trouble his friend Fleay or inconvenienced him.
3) The conflicting
interests can only be real if (Conditions for the Real Conflicting
Interests):
3.1. the will of a weaker
party had been suborned by the will of the stronger party.
3.2. the suborned party is
at a disadvantage.
3.3. the disadvantage of
the suborned party is caused by the unethical conduct of the Respondent.
3) The Unity of Purpose of
Fleay and Taylor to solve their common problem indicates that their
respective interests are not conflicting with each other or are apparent only
and not real (No conflicting interests between Fleay and Tylor).
4) The No Conflicting
Interests Between Fleay and Taylor entitles both of them to employ the
Respondent to solve their common problem [191(7),191(8)]. (Entitlement to a Common Lawyer).
5) The purpose of the
Respondent [191(5)] is to avoid the public confusion and the public
perception that the Respondent is biased against Tylor in favour of Fleay or
vice-versa and therefore, he decided to act for Tylor and therefore he
disqualified himself from acting for Fleay; that is the reason for the lot
falling on Tylor (the disqualification).
6) The Respondent [192, 192, 193, 194, 195,196]
did not provide an inaccurate or misleading response [191(4), 191(5), 191(7),
191(8)] to the Applicant as explained in paragraphs 1 to 5 above.
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7(ii)
Result: No Unsatis-factory
Conduct because the Respon-dent had not misled the Appli-cant on the
respect-tive posi-tions of Fleay and
No dis-honesty and no
fraud. No penalty. .
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Unsatisfactory Conduct:
by providing to the LPCC on
12.6.20006 an inaccurate and misleading response.
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14
|
198 to 218
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6. CULPABLE:
1) The Respondent [22, 203,
205, 208, 209] is given abundant evidence by Rochelle and her father
concerning the need to protect the child Jack from physical or psychological
harm from being subjected to, or exposed to, abuse, neglect or family
violence pursuant to Family Law Act 1975 (Cth), s 60CC(2) (Sufficient
Evidence).
2) The Applicant is seen to
be interfering [204] with the
‘paramountcy principle’ or the overriding consideration for the Family Court
and prevails over every other consideration for the Family Court of the ‘best
interests of children’ principle that prevails over every other presumption
to be applied or obligation imposed by s 60CA of the Family Law Act 1975
(Cth) and its continued effect as the overriding obligation imposed on family
courts confirmed in the Full Court decision of Goode & Goode (2006)
3) The exigency of the
circumstances and the instructions of both Rochelle [206, 210 through 214] and
her father required the Respondent to contact Mr. Merrick urgently through
his commanding officer as the only way possible because other means of
contact had failed (the only means of contact).
2) The facts of sufficient
evidence, Best Interests of Jack, the Only Means of Contact could be
confirmed by Ms. Rochelle Clohessy herself.
Rochelle had the right to take away all the records thereby limiting
the Respondent’s capacity to provide the necessary evidence [217, 218] (Confirmation
by Ms. Clohessy).
3) No willful misconduct on
the part of the Respondent, no dishonesty, no deception, no unlawful
misappropriation of funds, no reputation was ruined and no malice. That Notice is the basis for the proper
outcome from the Family Court and the safeguard of the family home of
Rochelle for which her family had contributed to (the Safeguard of the Family
Home).
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8
Result:
No profes-sional
miscon-duct as there is no willful misconduct and no misappro-priation of
property or funds or any decep-tion or disho-nesty on the part of the
Respon-dents. The allega-tions are
based on the merits of the case and there-fore non- inflam-matory in nature
and is the basis for the claim of Rochelle’smatri-monial home.
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Professional Misconduct:
1) on or about 19.4.2006
made allegations of improper conduct against the de-facto husband Ross
Merrick whilst the Respondent was acting as solicitor for one Rochelle
Clohessy without reasonable basis for doing so.
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15
|
219 thru 275
(Also refer to the nine
para-graphs at item No.12 above rela-ting to the 30% of the Debts taken as a
guide for the pay-ment of the Res-pon-dent’s Legal Costs and para-graphs 166
thru 176).
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7. CULPABLE:
1). The Respondent [219 (1)]
did maintain a General Office Account [221] instead of a trust account after
his inquiry from the Board which
satisfied him that there was no necessity for a trust account as long as he
does not hold trust monies (the General Office Account).
2) The Respondent
acknowledges [220] that monies received by him from Mr.White as director of
Finebeam Pty Ltd (the Debtor) for and on behalf of M&J Metals Pty Ltd
(the Client Creditor) may not be placed into a trust account but into the
General Office Account as this issue was already dealt with by the Client Creditor
i.e. by its director Mr. Chang Ming Tang (Mr.Chang), pursuant to s.137(2) of
the LPA2003.
2) The Respondent [228,
229] put in writing the terms of the agreement reached between Creditor and
Debtor on 11.8.2005 signed by the debtor for the Client Creditor to sign and
return in due course (the Agreement).
3) Together with the
Agreement is the facsimile letter by the Respondent dated the same day to the
Registrar of the Perth Magistrates Court copied to the Client Creditor,
withdrawing Plaint No. 4018 of 2005 as a result of the Agreement (the
Withdrawal).
4) Also accompanying the
Agreement is the facsimile letter
dated the same day stating the terms of the Compromise and the mode of
collection of the eight installments with commission for collection service
at 30 % for each installment as and when they fall due and NOTICE that the
Respondent was going to be away for some three months (the
Directions of Mr. Chang).
3) The Agreement confirms
the Directions of Mr. Chang and which also states that the $2,000.00 received
by the Respondent from the Debtor on 11.8.2005 as part of the Compromise and
in reduction of the debt is for the payment of legal fees due to the
Respondent that had already incurred by the Client Creditor as of that date.
This is also the Lien Agreement pursuant to ss. 137(2) and 137(4) of the Act
at 221(the Lien).
4) The Lien and the Costs
of Collection of the Eight Installments are part of the Directions of Mr.
Chang and they do not represent a costs agreement for a contingent sum of
reward for the legal services [222] (Commissions for Debt Collection and
Legal Work are Separate and Discrete Items of the Legal Costs).
5) The events that
transpired in relation to the Commissions for Debt Collections are as
follows:
5.1. Debtor promised to pay
the First Installment due on 1.9.2005 on the next day. i.e. 12.8.2005 (the
Promised First Installment).
5.2. Relying on the
Promised First Installment, the Respondent issued a cheque to the Client
Creditor representing 70% of the First Installment which was cashed by it
through the General Office Account.
5.3. After his return from
a three month holiday in early December, 2005, the Respondent found that the
First Installment was never paid into the General Office Account by the
Debtor (the First Installment Default).
5.4. After chasing the
Debtor, the First Installment Default was made good on 11.1.2006 but through
an oversight the Respondent made the second payment of $700.00 through the
General Office Account to the Client Creditor in acknowledgement of the First
Installment made Good (the First Installment Made Good).
5.5. There followed the
payment of the Second Installment by the Debtor of
5.4. 11.1.2006 and another $500.00
on 23.2.2006 and $100.00 on 3.5.2006 (the Partial payment of the Second
Installment).
5.5. The Respondent paid
the Client Creditor the sum of $350.00 and $70.00 as soon as he received the
Partial Payment of the Second Installment on their respective dates (Second
Partial Installment Made Good).
6. No Trust Monies [223,
224, 225, 226, 227, 228, 229] but only $1,600.00 that was dealt with by the
Directions of Mr. Chang and was not required to be placed into a trust
account (No Trust Monies).
7. At all material times,
the client creditor company was not required to pay the court fees and other
out of pocket disbursements upfront.
The Respondent paid for them on the Client Creditor’s behalf and later
claim for a refund of those disbursements separately from the Client Creditor
which was duly honoured (No Trust Monies for Disbursements).
8. The Respondent agrees
that he is not thoroughly efficient with the timing of the issuance of the
Invoices and as a result some were issued backdated. He expressed his remorse
and promise to the Board and regulator that these inadvertent and honest
mistakes [230, 231, 232] without any dishonest intentions or accompanying
misappropriations of funds shall not be repeated. This is an example of some honest mistakes
committed by the Respondent (the Honest Mistakes).
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9(i)
Result:
No profess-sional
miscon-duct as there are no elements of disho-nesty involved, no fraudu-lent
inten-tions nor any mis-appropriations of funds belonging to clients or third
parties. Honest mistakes in not issuing Invoices at the right time.
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Professional Misconduct:
did not maintain a trust
account within the meaning of s.137 of the LPA2003 between February, 2005 and
February, 2006.
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16
|
233 through 275
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8. CULPABLE:
1). The Respondent knows
the mechanics of providing these invoices but was unaware of the timing to
issue them as indicated in item 16 paragraph 8 above and [234, 235, 236, 238,
243, 246, 249, 251, 252, 254, 256, 266, 268, 269, 270, 271, 273, 275] in
respect of Mr. Hildebrant and Ms. Chong Vui Lin and other clients, because he
was mistakenly aware of the concept that monies received for work to be done
was not trust monies derived from the law of the British Commonwealth
Countries [239].
2) Moreover, he has never
been briefed in his Articles Training Program and in his restricted year of
practice about the niceties of trust monies and he was confused by the advice
that he received that as long as he does not hold trust monies [245], then
there would be no point in having trust accounts which would involved
expenses in auditing [240]. This was
his first year of independent legal practice and he had teething problems and
will eventually get acclimatized to it [241, 243].
3) The tribunal corrected
his wrong concept about trust monies and he is ever ready to adjust and make
amends for it in the future [241].
4) The Regulator should not
be entrapping him for this innocent and honest mistake at 240.
5) The Respondent is
remorseful of his lack of attention to the details of the timing of the
Invoices (remorse) [238, 244, 275].
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9(ii)
Cannot be Willful
profes-sional Miscon-duct because the elements of disho-nesty, fraud and
mis-appro-priation of funds are missing.
Accepts repri-mand and
apolo-gizes and is now aware of his mis-taken concept of trust monies.
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Professional Misconduct in
failing to render an account in respect of legal services and failing to
provide notices in accordance with ss. 231 and 232 of the LPA2003.
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The
Honourable Members of the Panel:
I humbly
submit the following:
1. The above
Table summarizes the jurisdictional error[4]s
of the tribunal’s allegations of offences committed by the Respondent based on his
culpability and non-culpability dependent on his status either as a trainee
lawyer or an independent lawyer that is being contended for in the 9 page-facsimile
and email letter dated 14.5.2012 found at http://wwwnicholasnchin.blogspot.com.au/2012/05/email-and-facsimile-to-both-lpcc-and.html to tribunal and copied to the
Applicant[5]. The Respondent therefore seeks orders:
NO
REPORT IS NECESSARY:
1.. or required to be transmitted to
the Supreme Court (Full Bench) for the purpose of striking the Respondent off
the roll[6]
on the ground of culpability or blameworthiness, in the following terms:
1.1. The Findings as in the Table of
Summary above, are divided into two categories:
1.1.1. The Respondent is not
culpable or at a lower end of culpability whilst a trainee lawyer under
supervision of his mentor during the period from 6.2.2004 to 14.2.2005 (sic:
6.2.2005) [15].
1.1.2. The Respondent is normally
culpable as an independent legal practitioner and cannot harbour under the
cover of vicarious liability of his former employer during the period from
15.2.2005 (sic: 6.2.2005) [15] until the 12.9.2006 as he was an independent
lawyer.
1.1.3. The matters involving the
retracted complaint of Mrs. Mathias [103 to 146] is not a subversion of the
Applicant’s authority as it involves the agency of a trainee lawyer attracting
vicarious liability of the mentor who was in turn was the appointed solicitor
for the Vendors of the Centenary Lunch Bar [19 to 48]. The Respondent was in
the duality of roles as agent trainee-lawyer and as pro-bono free agent for his son Paul Chin as Purchaser, who not
being a lawyer owes no public duty as an officer of the court. He is therefore twice
over not culpable in his dual roles. As a pro-bono free agent he is not
under supervision and therefore, the Purchaser is liable as a litigant in
person as he is without a lawyer. As a
lawyer trainee, the Respondent was under the supervision of his mentor and the
mentor is liable as the principal and as solicitor for the Vendors (Non-Culpability
of a Trainee Lawyer in Dual Roles)
1.1.4. The prosecutorial misconduct
of the Applicant (MY UTMOST RESPECT TO THEM) in that it did not take issue with
the wrongdoings of Ms. Whitehead as the trainee lawyer with her principal Mr. Pino
Monaco
1.1.4. The prosecutorial misconduct
of the Applicant in that it did not similarly pursue the wrongdoings of Mr.
Simon Patrick O’Brien as the trainee lawyer with his principal Mr. David Taylor
with reference to his falsifications of court records in CIV 1131 of 2006 [71, 76, 79]. (Mr.
Maurice Law in VR158 of 2011 is currently issuing a Subpoena in CIV 1275 of 2012 to have this issue
resolved). This again is a similar tacit approval of the Applicant to the
concept of Non-Culpability of Trainee Lawyers (Mr. O’Brien).
1.1.5. The prosecutorial misconduct
of the Applicant with regard to its condoning conduct of Ms. Whitehead, Mr.
Obrien, Barrister Peter Quinlan in relation to misleading Her Honour Judge
Eckert in VR137 of 2006, Barrister Scott Ellis in relation to misleading His
Honour Justice Ken Martin in CIV 1903 of 2008 No.2 and Solicitor Dean
Elek-Roser in his unilateral communication to His Honour Justice Hasluck in CIV 1903 of 2008 No.1 exemplifies the
bad faith or the lack of bona-fides of the Applicant in these proceedings (the Bad
Faith of the Applicant).
1.1.6. The Bad faith of the
Applicant is further exemplified by the prosecutorial misconduct of the
Applicant in its relentless pursuit of the Respondent (with regard to some
non-existent professional misconduct or unsatisfactory conduct which it already
acknowledged at the initial stages of these proceedings as trivialities[7])
and with so much vigor and at so much public expense, to the extent that it is
very hard for the reasonable person to resist the perception that the Applicant
is reasonably seen to be abusing using its powers and is motivated by malice or
is working at the behest of someone very powerful persons who is set to
influence the outcome of the due process of justice for their friends whose
interests are going to be affected as the result of the detriment suffered by
the Respondent is becoming cognizant to by the courts (the improper motives).
1.1.7. The reasonably perceptible
concept of improper motives of the Applicant cannot be reasonably resisted or brushed
aside, if one were to look at the submission of the Applicant and to have
regard to the fact that there is no reference in this judgment to the use of the
epithet “fit and proper person” to practice
law being ascribed to the Respondent’s professional misconduct and
unsatisfactory conduct [8]
vis-Ã -vis the specific nine
references of the tribunal to “fit and proper person” in the judgment of another
lawyer in another case in [2011]WASAT 118 (S); albeit in the latter case, there was an unsuccessful attempt by the
Applicant to refer the matter to the Supreme Court (full bench) for the reasonable
initiation of the striking off the roll process (the Unfitness Issue).
1.1.8. The Unfitness Issue, the
Prosecutorial Misconduct and the Bad Faith and the Improper Motives of the
Applicant ties in with the non-findings by the tribunal of any element of some or
any dishonest conduct of the Respondent, which is capable of denoting either
willful misconduct or misappropriation of funds of clients property or the
derivation of any pecuniary advantage by the Respondent resulting from the
deprivation of his clients or some third party funds or assets without their
consent or any form of his gross negligence being so exemplified. If so, the
Respondent submits, they would reasonably entitle the Applicant to properly
make a claim to this Honourable Tribunal for the Respondent to be struck off the
roll. Where none exists, the weapon used
with malice (MY UTMOST RESPECT) is recoiling upon its user the Applicant, and
is reflective of its lack of bona-fides (the Aggravated Bad Faith).
b).
That the Respondent do apply for a practice certificate because there is
no longer anything to be determined by the Supreme Court (full bench) pursuant
to the Respondent reason as to why NO REPORT should be so transmitted;
COSTS
ARGUMENT:
c). For
costs pursuant to:
c.1. S.87(3) of the State Administrative Tribunal Act, 2004 (the SAT Act) –requires the Applicant and
the Board to compensate the Respondent for closing down his legal practice and unreasonably
causing him to incur expenses, loss, inconvenience, or embarrassment resulting from the
proceeding or the matter because of which the proceeding was brought
including his loss of earnings
without making findings of professional misconduct or unsatisfactory conduct first
(the irresponsible conduct). The irresponsible conduct is unlawful and it did cause
detriment to the Respondent as it is contrary to the provisions of s. 156, 177,
180 and 182 of the Legal Practice Act,
2003 (WA) (the LP 2003 Act); such loss resulting to the Respondent is to be
calculated as from the 12.9.2006 until the 24.4.2012 and continuing… (Costs and
Damages);
c.2. s.87(4) of the Act, and having regard to the Costs and Damages and
the fact that:
c.2.1. the Applicant by virtue of its Aggravated Bad Faith [MY UTMOST
RESPECT) did not genuinely attempt nor assist the Board to make a decision on
its merits;
c.2.2. the Board through its improper delegated authority [12] did not
genuinely attempt to make a decision on its merits.
c.3. S.87(5) of the Act, and having regard to the Costs and Damages
and the fact that there was already a
settlement entered into by the Board on 25.9.2007, which both the Applicant and
the Board subsequently repudiated [9,11, 13] that had unreasonably caused
detriment to the Respondent and unreasonably disadvantaged him. Regard must be
had to the fact that the Respondent had been vexed SEVEN TIMES on res judicata matters[9]
c.4. S.87(6) of the Act and the fact that both the Respondent and the
Board through its fault in not having the proper
delegation of authority to the Professional Affairs Committee [12] had caused
detriment to the Respondent in terms of the Costs and Damages.
PENALTY:
Applicable
legislation with respect to the imposition of Penalty:
- Respondent agrees to the
operative effects of the LPA2003 since 1.3.2009 subject to the Costs and Damages
caused by the Applicant’s Prosecutorial Conduct.
- The tribunal findings of the
alleged offences that occurred in the period between July 2004 and April,
2006 are marked by the demarcation date of 15.2.2005 (the Demarcation Date).
- The EIGHT alleged
- Respondent agrees to the
operative effects of the LPA subject to Culpability Issue arising from his
employment as a trainee-lawyer during the period of the alleged
- Respondent also agrees to the
operative effects of the LPA subject to the Culpability Issue during the
period arising from his status as an independent lawyer that is subject to
the common law rules that any findings of professional misconduct must be
premised on willful wrongdoings involving dishonesty or fraud or
misappropriation of funds or assets without the consent of the persons
deprived and gross negligence (Independent Lawyer Culpability).
7. The
Respondent is to be exempted from any Penalty imposable by the LP Act for the Tribunal
findings of the eight PRE -CULPABLE alleged offences that was purportedly
committed by him during the Pre-Culpable Period grouped under the heading of
the Trainee-Lawyer Exemption Culpability as per the Order of the Tribunal dated
24.4.2012, which are as follows:
7.1.Order No.1 (i) and (ii) [19 through
52] (First and Second PRE -CULPABLE Professional Misconduct).
7.2.Order No.2 [53 through 69] (Third PRE -CULPABLE Professional Misconduct).
7.3.Order No.4 (i), (ii), (iii), (iv) and
(v) [103 through 146] (Fifth through Eight PRE -CULPABLE Professional Misconducts).
8.
The
Respondent is to be considered as culpable in the commission of the remaining EIGHT
alleged CULPABLE offences (including 2 CULPABLE Unsatisfactory Conducts)
purportedly committed by him willfully i.e. purposely, knowingly, recklessly
and negligently[10],
during the Culpable Period in terms of the said Order of the Tribunal, are as
follows:
8.1.Order No.3 (First CULPABLE Professional
Misconduct).
8.2.
Order
No.5 (Second CULPABLE Professional Misconduct).
8.3.Order No.6 (First Unsatisfactory
CULPABLE cum Third CULPABLE Unsatisfactory Conduct).
8.4.
Order
No.7 (i) and (ii) at 177 through 197 (Fourth CULPABLE Professional Misconduct
and Second CULPABLE Unsatisfactory cum Fifth CULPABLE Professional Misconduct).
8.5.
Order
No.8 (Sixth CULPABLE Professional Misconduct).
8.6.
Order
No. 9 (Seventh and Eighth CULPABLE Professional Misconducts).
9.
The
administration of the Penalty by the tribunal is to be made in accordance with
the LP Act on the alleged EIGHT CULPABLE offences and they shall depend on the
Degree of Culpability or the Blameworthiness of the Respondent (the
Blameworthiness).
10.
The
determination of the Blameworthiness in accord with the common law principles
of willful misconduct that must contains the elements of dishonesty, resulting
in deception or fraud where property has been misappropriated occasioned by
gross negligence where fiduciary duties had been breached and detriment had
been caused to his client or third party, which are to be determined in
accordance with the following procedures:
10.1.1.1.
if the element
involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and
10.1.1.2.
if the element
involves the attendant circumstances, he is aware of the existence of
such circumstances or he believes or hopes that they exist.
10.1.2.
The Respondent
acts knowingly with respect to a material element of
an offence when:
10.1.2.1.
if the element
involves the nature of his conduct or the attendant circumstances, he is aware
that his conduct is of that nature or that such circumstances exist; and
10.1.2.2.
if the element
involves a result of his conduct, he is aware that it is practically certain
that his conduct will cause such a result.
10.1.3.
The Respondent
acts recklessly with respect to a material element of
an offence when he consciously disregards a substantial and unjustifiable
risk that the material element exists or will result from his conduct. The
risk must be of such a nature and degree that, considering the nature and
intent of the actor's conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
10.1.4.
The Respondent
acts negligently with
respect to a material element of an offence when he should be aware of a
substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree that the actor's
failure to perceive it, considering the nature and intent of his conduct
and the circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor's
situation.
EIGHT
PRE -CULPABLE OFFENCES:
11. In accordance with the Latin
Maxim: qui facit per alium, facit per se, i.e. the one who acts through
another, acts in his or her own interests. In
this case, the principal is always liable for the act of his agent, the
Respondent, except where the agent is found to have breached the fiduciary
principle of deviating from working for the principal’s interests but for his
own self-interest instead.
11.1.
Therefore,
the
Provisions of the LP Act
in subsections 662(1) and 662(2) in so far as it affects Part 13 of the LP Act
with regard to the degree of blameworthiness of the Respondent is NOT APPLICABLE
to the Respondent’s Pre-Culpable Period offences but only APPLICABLE to the
Respondent’s Culpable Period offences. The degree of the Severity of the
Penalty prescribed by it depends on the degree of BLAMEWORTHINESS of the
Respondent as measured by the common law principles.
12.
It
is agreed that provisions of both LP03 Act and LP Act applies to the eight
Culpable Period Offences subject to the following conditions:
a.
The Applicant must be bona-fide in its public role as the disciplinarian for members of
the legal profession and must not discriminate through its clear disparity in
the enforcement of rules towards the Respondent (Applicant’s bona fides).
b.
The
Respondent’s culpability is the dividing line between the moral evil of his
supposed professional misconduct as a lawyer and the neutral trivial matters
which the reasonable Applicant would not and should not take cognizance,
many examples of which are (neutral trivial matters):
b.1. The Respondent’s complaint No.164/09 dated
6.5.2010 against the solicitor of Mr. Timothy Robin Thies, one Mr. Dean Elek
Roser for his unilateral communication with Justice Hasluck in CIV 1903 of 2006 No.1 for the purpose of
altering the outcome of the judgment for his client Mr. Timothy Thies. This unilateral
communication was revealed to the Respondent and recorded in the transcript by
the Judge himself but it did not receive any attention or disciplinary reaction
from the Applicant. (Dean Elek-Roser).
b.2. Contrast Dean Elek-Roser with my temporary
unilateral communication with Justice Jenkins through Her Honour’s Associate to
achieve an administrative purpose by setting the court records straight in
anticipation of its being manipulated as the risks of such manipulation was
great in respect of Mr. David Taylor and Registrar Powell was great [151, 152,
156, 158, 161]. There was thus no improper conduct on the part of the
Respondent to influence the outcome of the case[11]
One is treated kindly but the other is treated badly: a clear disparity in the
enforcement of rules (clear disparity in enforcement of rules).
b.3. The Respondent’s complaint against
Barrister Scott Ellis dated 15.11.2010 to the Applicant regarding how His
Honour Justice Ken Martin was misled by the former with the untruths on
17.6.2010 in CIV 1903 of 2008 No.2 to the effect that there was no evidence before His
Honour that Registrar Wilde in FR417 of 2007 was under duress when he delivered
the consent judgment dated 7.6.2007. The
evidence in the form of a letter dated 6.6.2007 was before the court and the
fact that the court was misled is in the transcript provided to Applicant. This
shows that some are immune to complaint like Mr. Taylor whereas the Respondent
is being mistreated for trivialities. Again another example of disparity in the
enforcement of rules (another example of disparity of enforcement of rules).
STRIKING
OFF THE ROLL :
7.
There
is no justification for the removal of the Respondent as he is a fit and proper
person to practice law and is not a public danger nor does he does he destroy
or tarnish the image of the legal profession.
He has achieved many successes in his probono works for many people who had been enslaved and have had been
dishonestly made to pay improper costs orders that are not in accordance with
the law and the conscience of a fair society (Respondent performed public good).
8.
The
material before the court depicts that he is a fit a proper person to remain a
legal practitioner (the materials are proof).
9.
This
tribunal may use all the materials that are prepared by the Respondent to
determine his fitness at the time of the hearing of these proceedings and not
at the time of the relevant conduct for the alleged offences that he was
engaged in (the proof is at the hearing).
10.
There
is not one iota of evidence that the Respondent is a dishonest person or unfair
in his conduct or that his thoughts and ideas are impinging upon his integrity
as a lawyer (no evidence of dishonesty).
11.
There
is not one instance where the Respondent had failed to command the personal
confidence of his clients, honest fellow practitioners (with due respect) and honest judges (My utmost respect) except
where the other party has been dishonest or unfair to him. All past instances have been fully explained
and the Respondent is prepared to explain any other instances which may be of
relevance whenever he is called upon to do so by this tribunal and his veracity
is not being subjected to any doubt (Honesty is a two-way traffic).
12.
There
is not one instance where the Respondent’s conduct has compromised the
maintenance or the protection of the reputation of the profession (protector of
the reputation).
13.
There
are no instances of the conduct of the Respondent that have compromised on the
understanding of the legal profession and of the public with regard to the
standard of behaviour required of solicitors (good standard of behaviour).
14.
There
are no instances of the Respondent’s failure to understand the impropriety of
his conduct that may be a factor of great importance in determining whether he
should be permitted to stay on the roll (no failure to understand improper
conduct).
15.
There
are no serious cases of instances except for innocent mistakes or lapses, in
which the character of the Respondent and his conduct as a practitioner which
is inconsistent with the privileges of further practice (lapses is normal and
natural)
ASSESSMENT
OF RESPONDENT PROFESSIONAL MISCONDUCT AND UNSATISFACTORY CONDUCT:
COMPLAINT
A – CENTENARY LUNCH BAR:
16.
Mr.
Wally Ozich acted as solicitors for the Vendors [32] as there was a “Chinese
Wall[12]”
in place. Nevertheless, the Respondent
acted as agent or trainee lawyer under the mentor’s supervision and claims
immunity from prosecution under the principle of vicarious liability. He therefore has no conflicting interests
with the interests of the Vendors. On
the other hand, he acted as a pro-bono
free agent independent of his mentor supervision, for his son the Purchaser and
not as a solicitor although he is a solicitor father and unlike a paid lawyer,
he owes no public duty as officers of the court to members of the public (China
Wall).
17.
The
Respondent as a trainee lawyer [33] is immune from prosecution and as a probono free agent for his son, his
interests merged with those of his son.
There is no problem with his son as Purchaser suing the Vendor, whose
separate interests for the wrongs of their misrepresentations to the Vendors
were represented by another lawyer, the mentor, Mr. Ozich (vicarious liability).
18.
As
a probono free agent for his son Paul
the Purchaser, though the Respondent being a qualified lawyer and holding a
practice certificate then, he could be a reliable witness then for the
Purchaser in his capacity as free agent, because he is unpaid and owes no
public duties to third parties. Even if he is recognized as a solicitor for the
Purchaser, he can always abdicate the role of a witness because the Purchaser
is his own witness as he is also a litigant in person dealing in his own
affairs with his father standing in as his alter-ego (free agent is not a court
officer).
19.
As
a corollary to paragraphs 17 and 18 above, the position of the Respondent when
he acted for his son against the Vendors would not be “both untenable and
improper” [35]. Notwithstanding, he had
taken steps to ameliorate the false perception by engaging solicitors like Mr.
Thies (efforts to avoid wrong perception for the ordinary person).
20.
Regard
ought to be had to the following:
a) The
conflict of interests is not obvious under the following circumstances:
a.1. Wally
Ozich was the solicitor for the Vendors and the legal fees of $400.00 was paid
to him and he produced a receipt for it at the time of the transaction and not
subsequently as an afterthought. The
Vendors were therefore protected by own their solicitor in Mr. Ozich (Vendors
represented by another solicitor).
a.2. Respondent was representing his son Paul the Purchaser, in his
dual capacity: (1) acting as agent and trainee lawyer for his principal and
mentor in which he claims vicarious liability whilst he was learning his trade,
(2) acting as free agent albeit
pro-bono for the Purchaser, where he owes no public duty as a non-officer of
the court (Duality of Roles).
a.3. On the ground that the Vendors are already represented by the
mentor lawyer coupled with the fact that the Vendor’s mentor lawyer his trainee
lawyer the Respondent as his agent in dealing and learning the process of the
Vendor’s solicitor, the mentor lawyer owes a public duty as a court officer
(the Public Duty of the Mentor).
a.4. The Respondent as free agent with Duality of Roles when acting
pro-bono under the LP Act is not allowed to represent the Purchaser in
court. However, as a free agent, he is
allowed to act as the scribe for the Purchaser and his alter-ego. The fact that he is a qualified lawyer under
training does not mean that he owes public duties as a pro-bono free agent. The
fact that he is the alter-ego means he can be a witness to the deal because he
is not the lawyer for the Purchaser and also not a lawyer for the Vendors (Probono Free Agent has no public duties
as a court officer).
a.4. The informed consent obtained by the Respondent from the Vendors
is another of telling them that the Respondent as a Probono Free Agent has no
public duties as a court officer (the Informed Consent).
b) The
Respondent’s persistence [43] in his denial of the existence of conflict is
based on Vendors represented by another solicitor, Respondent as free agent for
Purchaser and Respondent owes no public duties (Respondent’s Conduct).
c) Respondent’s
Conduct is deliberate DOES NOT SHOW that he is lacking in appreciation of his
duties as solicitor with regard to the conflict of interests situation (No lack
of appreciation).
d) There
is thus No Lack of appreciation and therefore no blatant breach of one of the
most fundamental duties of a solicitor as a fiduciary to act exclusively for
the Vendors (No breach of Fiduciary Duties).
e) The
Respondent’s Conduct entailing his No Lack of Appreciation and his No Breach of
Fiduciary Duties together with his NOT LACKING OF SUBSEQUENT INSIGHT therefore
does not warrant a consideration of fitness to practice and therefore the
public is not endangered by his being a lawyer (No Unfitness to Practise).
COMPLAINT
A-(2) Offer of Party and Party Costs to Mr. Thies:
21. Yes, Mr.
Thies agreed to the pre-contractual terms and then reneged on it and therefore
the contract for legal services with him was terminated (Thies breach of
contract).
22. The
Respondent’s Fee Proposal to Mr. Thies was NOT IMPROPER on the following
grounds:
22.1.
No
party to party costs in relation to work carried out by the Respondent himself
was offered to Mr. Thies (the offer).
22.2.
The
offer refers to a measure or a convenient device to measure the emoluments for
Mr. Thies’s proposed work to supervise the Respondent (Mr.Thies’ supervisory
work) in his work performed by him pro
bono for his son the Purchaser in the litigation with the Vendors in DC
2065 of 2004 for the purpose of avoiding any future disputes with Mr. Thies
(the measure).
22.3.
The
measure is not at the expense of the defendants in DC2065 of 2004 and does not
cause them any detriment because the Respondent never intended to use those
claimed Party and Party Costs to pay Mr. Thies but to pay for the proposed Mr.
Thies’ supervisory work out of his own pocket (Party and Party Costs not
intended as the payout).
22.4.
Mr. Thies’ supervisory work is necessary
under the circumstances to replace the supervisory work of Mr. Ozich who is
incapacitated by his becoming the solicitors for the Vendors because of the
ensuing conflict of interests (the Incapacitation of Mr. Ozich).
23.
The
Respondent submits that the issue of his fitness in paragraph 22 above as a
practitioner does not arise because of its LACK OF IMPROPRIETY and therefore it
does not accordingly detract from the personal confidence the Practitioner
enjoys from honest fellow practitioners.
In addition, the Respondent submits that there is no issue that he had
engaged in fiction in relation to his costs in the said proposal to Mr. Thies
and therefore it (the proposal) would not be regarded as disgraceful or
dishonest conduct by honest practitioners of good repute (No dishonest
conduct).
COMPLAINT
B: Godfrey Virtue & Co:
24. The
allegations [60] is founded on facts supported by a named investigator together
with an accountant’s report and was embellished by the statements of Dr. K S
Chan herself. She could be called as a
witness to testify to those facts.
Consequently the truth of those statements warrants the fraudulent
conduct to be exposed failing which the Respondent himself could be found to be
guilty of professional misconduct for covering up the fraud of his dishonest fellow
practitioners (The Paramount Duty of the Respondent).
25. The
Paramount Duty of the Respondent is not extraordinary [65] because that first communication constitutes prior notifications
to the defaulting solicitor which must precede subsequent legal action to be
taken by Dr. K.S. Chan to protect her rights that has been assailed by her dishonest
opponents (Prior Notifications before Action).
26. “The
Private Investigator not Accepted [68]” is not made on valid grounds because he
is not nameless (Accepted Private Investigator).
27. The
Respondent did not rely on the say-so of Dr.K S Chan [68-69] but on his own
private investigations in time that was subsequently proven to be true as per
the facts contained in pages 209 to 211 in Book 1 in a 16 item statement in her
Description of Claim. There is a further
statement of material facts found at pages 212 to 219 of Book 1 which describes
the manner she had been mistreated by Mr. Pino Monaco (with due respect) in
relation to her other properties.
Besides the Private Investigator Mr. Roy Gascoigne, a former Police
Officer, Report and the Accountant’s Report found at pages 222 to 225 of Book
1, there is also a personal letter of Complaint by Dr. K. S. Chan which
provides the details of her grouses to the Applicant dated 16.10.2006 that
forms the basis of the Respondent’s Investigations that forms the basis of his
allegations as contained in pages 225A to 225D of Book 1 (the basis of the
Respondent’s Investigations).
28. The issue
of whether Respondent’s fitness to practise does command the personal
confidence of honest fellow practitioners is subject to the caveat that the
fellow practitioners concerned are themselves above board and that they have performed
their duties to Dr. K S Chan as their opponent.
The allegations are founded on the Basis of the Respondent’s
Investigations and the administration of justice is served; the real issues are
not being obfuscated and there is no real potential to derail the dispute
between the Mr. Pino Monaco
(with due respect) and Dr. K.S. Chan (the Incontrovertible Issue of the
Respondent’s Fitness to practise law).
COMPLAINT C- Taylor
29. The
Tribunal’s ought to make two findings of the Respondent’s Conduct, which are:
a)
There is reasonable or proper basis for the “underhand tactics” in falsifying the
court records in CIV 1131 of 2006 by Mr.
Taylor through the agency of his trainee lawyer Simon Patrick O’Brien by the
latter altering the filing date of the Supreme Court Writ [102] in terms of the
following facts:
a.1. it is underhand
tactics because when confronted subsequently by the Respondent, Mr. Taylor
evaded the issue and was rude to the Respondent but the Applicant in its disparity in its
enforcement of rules is wilfully blind to these facts as explained in the
Respondent communications to it in Book 1 and the following: (the denial of
David Taylor without giving reasons for it):
a.1.1. it is reported
by Ms. Nancy Hall herself who was at the scene to verify that the Writ was not
filed by the close of office on the 10.2.2006. The credibility of this
eye-witness statement is the spontaneous reporting of this incident to an
interested party Mr. Monkman and to Landgate (an eye-witness in Nancy Hall).
a.1.2. Mr. Taylor caused an improper costs order to be
made by Registrar Powell against the
Respondent in Midland Magistrates Court CA 2475 of 2007 for $300.00 which was later
foregone and forgiven by Mr. Maurice Law on the ground that it is unreasonable
and is based on untruths. Maurice Law has attested to this fact (the reprisal
by David Taylor).
a.1.3. the subsequent
conduct of the Respondent in refusing to represent Nancy Hall in CIV 1131
of 2006 after he had finished his duties in CIV
1142 of 2005 No.1 shows that he is discontented with the manner the Applicant
had dealt with this issue unfairly. This is the reason why CIV 1131
of 2006 has never been decided till today (the Passive Retaliatory conduct of
the Respondent).
a.1.4. the temporary unilateral communication of a two
day-delay, from the Respondent to the Associate of Jenkins J to set the record
straight and not to influence the outcome of the decision is in accordance with
the law (the temporary unilateral communication to the Judge).
a.2. the improper
altering of the date of filing of the Writ of Summons in CIV 1131
of 2006 [101] and the ‘no basis whatsoever
allegations [90] and “no credible
evidence” [89] is attested by the
following facts:
a.2.1. His Honour
Justice Simmonds himself gave Ms. Nancy Halll during the proceedings of CIV
1142 of 2005 No.2 a copy of the Writ of Summons with the 10.2.2006 date stamp
on it altered in black ink to 16.2.2006 (Justice Simmonds’s findings of the
altered date to 16.2.2006).
a.2.2. The Justice
Simmond’s findings of the altered date to 16.2.2006 was handed over to the
Respondent by Nancy Hall herself during the progress of that case (Nancy Hall
delivery).
a.2.3. Registrar
Powell refusal communications (with due respect) to provide a copy of the bank
statement when he was inquired upon by both Maurice Law and the Respondent and
they are contained in the Yellow Appeal Book of CACV107 of 2008 (Registrar
Powell’s Conduct).
a.2.4. Registrar
Powell Consciousness of Guilt when His Honour tried to act as a judge in his
own cause in the taxation proceedings of Master Sanderson Costs Orders in CIV
1775 of 2008 against both the Respondent and the Maurice Law and the taxation
proceedings of Owen JA costs orders against the Respondent alone in CACV 107 of
2008 which is followed up by his subsequent resignation from office or
retirement (Registrar Powell’s Retirement).
a.2.5. The inability
of Mr. Taylor to give a direct answer to the Subpoena issued to him in VR158 of
2011 before Justice Chaney on 29.11.2011 as to the bank statement that can
evidence that the impugned court fees of $654.20 was paid on 10.2.2006 or
16.2006 into the court registry for the validation of the Writ of Summons in CIV
1131 of 2006 (Mr. Taylor’s failure to answer the Subpoena).
a.2.6. The sighting
of the Bank Statement given by Mr. Taylor on 29.11.2011 to the effect that the
impugned court fees was finally paid and then retracted on the same day by Mr. Taylor
into the Court Registry some three years later on 19.5.2009, filed at SAT
but was missing subsequently, for which His Honour Justice Chaney in VR 158 of
2011 was at a loss to account for it, is now the subject matter of Maurice Law’s
Application for Review in CIV 1397 of 2012
(the unavailable bank statement). This
unavailable bank statement gives rise to the theory that CIV 1131
of 2006 was never issued on 10.2.2006 nor on 16.2.2006, nor on 19.5.2009 and
there is therefore never a due compliance with Jenkins J Order in CIV
1142 of 2005 No.1. Therefore, all the
related judgments are made in error and the miscarriages of justice must be
rectified and Mr. Taylor must make amends for his having misled the courts and
caused detriments to both Maurice Law and the Respondent. The review of all
these miscarriages of justice is pending in CIV 1275
of 2012) (the Miscarriages of Justice must be Rectified).
b.
The “no basis
whatsoever” [101] that Mr. Taylor deliberately misled Registrar Powell[13]
by failing to inform the said Registrar that the Respondent did not represent
Nancy Hall is an assumption based on false premises in terms of the following:
b.1. Mr. Taylor
knows that his trainee lawyer Mr. Simon Patrick O’Brien (with due respect) then
under his supervision had been dishonest by altering the filing date of CIV 1131
of 2006 when he was so informed by the Respondent via his facsimile letter
dated 15.2.2006 copied to Landgate for which he had responded to the writer of
that letter (the knowledge of the falsifications) in the following terms:
b.1.1. Mr. Taylor
having been equipped with the knowledge of the falsifications deliberately
refused to come to a compromise with the Respondent in order to avert any
further trouble arising out of that falsifications (Mr. Taylor’s deliberate
avoidance to compromise).
b.1.2. The dishonesty of Mr. Taylor stemming from his
knowledge of the falsifications and Mr. Taylor’s deliberate avoidance to
compromise led to his further dishonesty of his lodging a complaint with the
Applicant resulting in the Applicant refusing to accept the truth of the matter
as explicated by the Respondents further communications with the Applicant (the
blind eye of the Applicant).
b.2. There is circumstantial evidence to the effect
that Registrar Powell had been misled by Mr. Taylor to the effect of Mr.
Taylor’s knowledge of the falsifications and Mr. Taylor’s deliberate avoidance
to compromise [100] and the Blind Eye of the Applicant to the ensuing
dishonesty of Mr. Taylor in the following terms (the Dishonesty of Mr. Taylor):
b.2.1. The court records did not show otherwise [100]
as Registrar Powell knows that CIV 1131 of
2006 was never filed with the Court Registry because the relevant courts fees
was never paid on 10.2.2006, nor on 16.2.2006 or on 19.5.2009 some three years
later when the learned Registrar was required to provide the necessary bank
statement to prove his case as contained in his letter dated 11.6.2009 made in
response to the Respondent’s query (Registrar Powell’s inability to prove his
own assertions).
b.2.2. Registrar
Powell needs to cover up the Dishonesty of David Taylor and the Blind Eye of
the Applicant and that may be the probable cause of Registrar Powell’s
Retirement).
b.2.3. By virtue of
the Dishonesty of Mr. Taylor, he had misled Registrar Powell [100].
30. The
Tribunal is in jurisdictional error when it failed to take into account
relevant facts and did take into account irrelevant facts to come to the wrong
conclusion. The relevant facts to be taken into account are in the following
terms:
a.
The underhand tactics employed by Mr.Taylor to achieve
his desired outcome to the extent that the equity of Nancy Hall Properties had
been unlawfully clogged up and which in turn led to her premature death as a
result of the miscarriage of justice (the underhand tactics).
b.
The Dishonesty of Mr. Taylor in deliberately misleading
Registrar Powell and the Applicant with regard to the alteration of the filing
date of CIV 1131 of 2006 by his trainee
lawyer, resulting in his obtaining the unlawful extension of those Caveats of
Spunter Pty Ltd by deceptive means (the Unlawful Extension of Spunter’s Caveats).
c.
The Unlawful Extensions of Spunter’s Caveats had led to
the deprivation of the Respondent’s just emoluments as the s.244 LPA 2003
Salvour promised by Pullins JA in CACV 107 of 2008 (the Salvour rewards).
d.
The Dishonesty of Mr. Taylor in prodding Mr. Maurice
Law to make a false claim against the Respondent for $300.00 in Midland
Magistrates Court CA No. 2475 of 2007 (the distraction to Maurice Law).
e.
the Dishonesty of Mr. Taylor in causing the Respondent
to lose his independent status as a lawyer. There were only three causes for
this loss: Mr. Monaco ,
Mr. Taylor and Mr. Thies (the Loss of Independent Lawyer Status).
31. The
Applicant does command the personal confidence of honest fellow practitioners
but for the dishonest conduct of Mr. Thies and Mr. Taylor and Mr. Monaco
the truth is being borne out (the Reason for Loss of Independent Lawyer Status).
COMPLAINT D- Mathias
32. Failure to reach a reasonable standard of competence in drafting the will and the trust deed
32. The
Respondent was a trainee lawyer involved in the preparation of a convoluted
document which is not a “will” but a complicated Trust Document [112] and is “guilty of over servicing” [113] and the “furnishing of an invalid codicil” is not
denied. Those documents are inchoate
documents that were first discussed with the client Mrs. Mathias and then needs
to be approved by Mr. Ozich, the mentor and the supervisor of the Respondent
(the due process). Before the due process is completed, the client found a
cheaper to get things done and she decided that she no longer needs the
complicated way of divesting her Properties in the event of her death which
entails time costing for which she had been made aware of at the beginning of
the client-solicitor relationship (the Client’s Avoidance).
32.1.
The first step in the experimentation of will
preparation as a trainee lawyer by the Respondent involved the Client’s
Avoidance and it therefore should not impinge upon the Professional conduct of
the Applicant in the following terms:
32.1.1. A trainee-lawyer is not liable for any
professional misconduct because his level of culpability is not the same as
that of an independent lawyer.
32.1.2. A trainee lawyer is at a learning stage
and is he working under supervision because he is not experienced and therefore
needs the guidance of his mentor.
32.1.3. The Guidance of his mentor needs to be
inculcated into the due process as the trainee lawyer needs to be exposed to
the real situation of interacting with his clients as though he is a fully
qualified lawyer.
32.1.4. A trainee lawyer can seek for cover under
the principle of vicarious liability because he is working under the tutelage
of his master and does not receive any payments from the clients for his work.
32.1.5. A trainee lawyer cannot be liable for any
professional misconduct that is not wilful in nature and is without the necessary
elements of dishonesty, fraud or deceit, the deprivation or misappropriations
of funds belonging to the client or third parties and gross negligence.
32.1.6. The Respondent has been reprimand and is
remorseful and gives his assurance that such an aberrant behaviour shall not be
repeated.
33. Altering the written costs agreement after it was signed by client:
33. The
Respondent submits that the Respondent should be given the benefit of the doubt
in that Mrs. Mathias was not able to produce the copy of the costs agreement
which would show that the alleged Insertion was made “before signature”. Besides, there is no wilful misconduct or
dishonesty that resulted in misappropriation of property. Mrs. Mathias had also retracted her complaint
on 19.10.2004 after lodging her complaint on 1.9.2004. This shows that she
regretted her complaint that was made by mistakes. The Respondent is a trainee
lawyer under supervision.
34. Charging clients fees in excess of the agreed amount:
There is no proof that the
Insertion was made before signature and there is work done for Mrs. Mathias
that justifies those charges. Even if
those charges were excessive, they were never actually charged because only
$300.00 was paid for those works and the complaint was retracted. There is therefore no dishonesty and
requirement for protection of the public. The Applicant is a trainee lawyer
under supervision.
35. Intemperate and offensive language in letter to client:
Mrs. Mathias complaint had been
retracted. The Respondent is a trainee lawyer under supervision. He is
remorseful and apologize for it.
36. Attempt to subvert the jurisdiction of the Committee:
Mrs. Mathias had retracted her complaint
and the matter was settled after the complaint. Respondent submits that he was
mistaken as to the fact that he was unaware of the complaint and its human to
forget. There is no subversion of the
disciplinary function as the Complainant has a right to retract her complaint
as she has become satisfied after the events which had occurred after her
complaint.
COMPLAINT E: Hall
37. The temporary
unilateral communication [161] was another way of stating to Jenkins J through
her Associate that the court should not be misled by the intention of Mr.
Taylor to falsify the court records in his efforts to set the court records
straight, and his intention was to engage the court to engage in judicial
activism to help a defenceless and disabled victim as the Respondent was doing
pro-bono work for her and was motivated by a desire to help her cause as a
result of the incessant troubles the Respondent received from Ms. Nancy
Hall. It was difficult and harsh for the
Respondent to be rude and abrupt to her or to fail to care for her as she was
always at his doorstep. The copy of the
temporary unilateral communication [160] was delayed only for two days in order
to wait for the records to be set straight. The approach [163] was not improper
and irregular under the circumstances.
The failure to, “understand the
ethics and workings of the Australian legal system” is caused by Mr. Taylor
himself who refused to remedy the situation and was rude and non-chalant to the
Respondent by the Mr. Taylor stating to him “You
do what you like”. The Respondent
submits that fitness to practise requires amongst other things that the
Respondent must command the personal confidence of honest fellow practitioners
and honest judges (with due respect) who must also be ethical and honest in their
dealings with the Respondent and must not exercise disparity in the enforcement
of rules against him. It is not a one- way traffic.
COMPLAINT F – M & J Metals:
38. The factual circumstances show that the
legal fees of $500.00 and $2,000.00 were paid for separate items of legal work
done for the Creditor Client Company and it does not depend on the outcome of
the case. There is a separate
arrangement for commissions to be paid to the Respondent for each of the
collection of the 8 eight instalments in accordance with a separate agreement
at the rate of 30% of the value of each instalment that was arranged after the
compromise on the 11.8.2005. The 30%
commission was not payment for any legal work but for the work of the collection
of the instalments and their delivery to the Client [175].
COMPLAINT
G – Tylor, Powell and Fleay
39. The
Tribunal’s Jurisdictional Errors are:
a.
Tylor and Fleay do not have conflicting interests
against each other as they were each wrongly charged because the drugs was found
in the car belonging to Fleay at the time when they first saw the Respondent
and this situations continued until the trial.
b.
Respondent’s interests merged with Tylor when he
accepted the brief of Tylor to defend him. Respondent’s interests as the defence
counsel for Tylor therefore did not conflict with the interests of Fleay.
COMPLAINT H – Clohessy
40. The
allegations were the truth and the Ms. Rochelle Clohessy could be called as a
witness [213, 218]:
a. Due
process [214] requires prior notifications to be given before legal action.
b. The
only means of communications under the exigency of circumstances was justified [215].
COMPLAINT I – Trust Account:
41. With
reference to the maintenance of trust accounts, the Respondent:
a. Submits that the monies received were for work
already performed:
a.1. With M & J Metals: $5,000.00 of “trust
monies” does not exist. $500.00 was paid after work was performed. Again $2,000.00
was paid after work was performed. He
dealt with the directions of his client to collect the eight instalments with a
commission of 30 per cent payable to him as and when they are paid.
a.2. With
Jack Hildebrant, he had performed his work before payment was received and
therefore it is not trust monies. There might be mistakes I the timing of the
invoices and the receipts issued. The
understanding of the Respondent with respect to receipt of monies for work done
or work to be done is not trust monies. Receipt of monies to be held in trust
for a certain purpose or to pay out to a certain person is trust monies.
a.3. With Antonio Politi there were no trust monies
as work as performed before payment on account of wrongly dated receipts and
wrongly dated invoices.
b. Respondent admits that he failed to
render proper notice and render an account in respect of legal services because
this was never specifically taught to him whilst he was undergoing training as
a lawyer. There is no dishonesty and no monies were ever misappropriated.
GENERAL
43. Of the 16
findings, 8 were pre-culpable period alleged professional Misconduct. The remaining 8 were the same including two counts
of Unsatisfactory Conduct that were allegedly committed during the culpable
period.
44. The
multiplicity of findings of the 16 alleged offences should not take into
account those 8 counts that were committed during the time when the Respondent
was a trainee lawyer. Further, the Misconduct of Mr. Taylor and Mr. Thies are
the causative factors which the Applicant did not take into account.
45. A careful
analysis of the reasons for the Jurisdictional Errors of the Tribunal will
indicate that the fourteen findings of professional misconduct do not implicate
a substantial or consistent failure of the Respondent to reach or maintain a
reasonable standard of competence and diligence. It has to take into account
the non-culpability of the Respondent during his traineeship period when he was
under supervision as well as the causative factors.
46. There are
never any elements of dishonesty which impinges on the character of the
Respondent. The alleged Insertion is never proven as it is done before
signature with the consent of Mrs. Mathias.
Her retraction of the Complaint and her non-attendance at the trial is
evidence of the innocence of the Respondent. The preparation of backdated
invoices does not constitute acts of dishonesty but are actual examples of the
honest mistakes of the Respondent that does not imply wilful misconduct. It is not dishonest to receive payments for
work done or work to be done. It’s just that Western Australian regulator does
not want to follow the common law. These
are teething problems which he had to deal with.
47. The
Respondent admits that he is at the lower end of culpability during his time as
trainee lawyer and they were not committed with dishonest intentions. The will
must be dishonest.
48. The
accusations against Godfrey Virtue, Mr. Taylor, Ms. Mathias and Mr. Merrick are
not unfounded on the facts of the case.
49. The
Respondent cannot be expected to be a perfect person as there are many others
who are also imperfect and whose conduct are considered as trivialities and
condone.
50. NO REPORT
is necessary for the full bench as a striking off the roll is not warranted
under the circumstances as per the law.
51. The
Respondent does not accept the Applicant’s submission and is desirous of making
an application for a practice certificate.
52. 53, 54, 55.
There shall be no costs orders against the Respondent for the reasons provided
above. The Respondent is in no position to pay for those costs as he has been
deprived on his earnings since the 12.9.2006 till today.
CONCLUSION:
It’s passive resistance that I as
the Respondent aspire to and I do wish well for everyone that I had
inadvertently hurt and I apologize…. but I would like to remind the world that
we must co-exist peacefully and at the same time do treasure our inalienable
right to say what we wish to say in the name of justice through the proverbial
Ghandhian wisdom in these words:
"The seven deadly sins are wealth without work, pleasure without
conscience, knowledge without character, business without morality, science
without humanity, worship without sacrifice and politics without
principle."
The Respondent concludes with a
quote from the case of: Selling v.
Radford, 243 U.S. 46 (1917)” found at http://supreme.justia.com/cases/federal/us/243/46/:
“The character and scope of the
investigation to be made on a prayer for disbarment, before sanction is given
to it, must depend upon the character of the acts of misconduct charged, the
place of their commission, and the nature of the proof relied upon to establish
them…….unless, upon intrinsic
consideration of the state record, this Court shall (1) find that the state
procedure was wanting in due process, (2) come to a clear conviction that the
proof of facts relied on by the state court to establish want of fair character
was so infirm that acceptance of the state court's conclusion thereon as a
finality would be inconsistent with this Court's duty, or (3) discover some
other grave and sufficient reason why this Court could not disbar consistently
with its duty not to take that action unless constrained under the principles
of right and justice to do so.”
Signature
of: NICHOLAS NI KOK CHIN
[1] In House v
The King [1936]
HCA 40; (1936) 55 CLR 499 at 504 - 505 (Dixon
It must appear
that some error has been made in exercising the discretion. If the judge acts
upon a wrong principle, if he allows extraneous or irrelevant matters to guide
or affect him, if he mistakes the facts, if he does not take into account some
material consideration, then his determination should be reviewed and the appellate
court may exercise its own discretion in substitution for his if it has the
materials for doing so.
See also: The article by the Chief Justice of NSW, His
Honour James Spigelman AC, in his article entitled: The Centrality of
Jurisdictional Errors at: http://www.hrnicholls.com.au/articles/Other/spigelman250310[1].pdf
See Also: His Honour article entitled: JURISDICTION
AND
INTEGRITY at http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman050804
[2] 23 Further the High Court in
Kennedy v the Council of the Incorporated
Law Institute of New South Wales
"...a charge of misconduct as relating
to a Solicitor need not fall within any general definition of wrongdoing. It
need not amount to an offence under the law. It is enough that it amounted to
grave impropriety effecting his professional character and was indicative of a
failure to either understand or to practise the precepts of honesty or fair
dealing in relation to the courts, his clients or the public. The particular
transaction the subject of the charge must be judged as a whole and the
conclusion whether it is tokened unfitness to be held out by the court as a
member of a profession in whom confidence could be placed, on the other hand,
although a lapse of propriety was not inconsistent with general professional
fitness and habitual adherence to moral standards was to be reached by a
general survey of the whole transaction."
[3] Bramwell
LJ put it in Lewis v Great Western
Railway (1877) 3 QBD 195, at p 206:
“Wilful misconduct’ means misconduct to which the will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be wilful.”
Millett LJ summarised his view .....which excluded liability for anything other than fraud: 24 “exempts the trustee from liability for loss or damage to the trust property no matter how indolent, imprudent, lacking in diligence, negligent or wilful he may have been, so long as he has not acted dishonestly
“Wilful misconduct’ means misconduct to which the will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be wilful.”
Millett LJ summarised his view .....which excluded liability for anything other than fraud: 24 “exempts the trustee from liability for loss or damage to the trust property no matter how indolent, imprudent, lacking in diligence, negligent or wilful he may have been, so long as he has not acted dishonestly
[4] Id: at foot No.1.
[5] See
Footnote No.2 for the
principle of American law which equates with our common law in terms of:
willful misconduct, dishonesty and fraud, misappropriations of funds belonging
to clients etc and gross negligence. The
abiding principle is that you cannot be culpable or be morally blameworthy if
you have not derived a pecuniary advantage from your client by his/her being
deprived of it without his/her consent and knowledge.
[6]http://www.piets.com.au/wcms/index.php?page=professional-misconduct:
Council of the New South Wales Bar Association v John Peter Hart [2011] NSWCA
64. McColl JA. 21.03.11
[12] In exercising the inherent
jurisdiction, the Court must satisfy itself that it is appropriate to make
orders removing the respondent's name from the Local Roll, even if he concedes
that the orders should be made: Council of the New
South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 (at [9]); Prothonotary of
the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 (at [12]).
[13] Where an order for removal from the
Roll is contemplated, the ultimate issue is whether, at the time of the
hearing, the practitioner is shown not to be a fit and proper person to be a
legal practitioner of the Supreme Court upon whose Roll the practitioner's name
presently appears: A Solicitor v
Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (at [14] - [15],
[21]).
[14] In exercising its inherent
jurisdiction to discipline legal practitioners the Court is not bound by any
statutory definition of "professional misconduct".
Rather "it has the capacity to determine, and act on the basis of,
unfitness, where appropriate, without any need to stretch the concept of professional
misconduct beyond conduct having some real and substantial connection with
professional practice": Prothonotary of
the Supreme Court of NSW v Alcorn [2007] NSWCA 288 per Hoeben J (Beazley and McColl JJA
agreeing), referring to A
Solicitor v The Council of the Law Society of NSW (at [21]).
[15] As I said in Prothonotary of the Supreme Court
of New South Wales v McCaffery (at
[46]) (with Sheller and Beazley JJA's agreement):
"Professional misconduct at
common law is said to
connote conduct which would reasonably be regarded as disgraceful
or dishonourable by
one's peers: see Allinson v General
Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by
Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v
Cummins [2001] NSWCA 284; (2001)
52 NSWLR 279 at [36] ff. Allinson was adopted in relation to the legal
profession in In re a
Solicitor; Ex parte Law Society [1912]
1 KB 302 at 311-312: see A
Solicitor v Council of the Law Society of New South Wales, above, at
[13]."
[16] The applicant submits that the nature
of the wrongdoing in this case is so antithetical to the practice of law that
the Court would readily conclude that the orders sought are appropriate. It
draws attention to Incorporated Law
Institute of New South Wales v Meagher (1909) 9 CLR 655 (at 681)where Isaacs J
said:
"The errors to which human tribunals
are inevitably exposed, even when aided by all the ability, all the candour,
and all the loyalty of those who assist them, whether as advocates, solicitors,
or witnesses, are proverbially great.
"But, if added to the imperfections
inherent in our nature, there be deliberate misleading, or reckless laxity of attention
to necessary principles of honesty on
the part of those the Courts trust to prepare the essential materials for doing
justice, those tribunals are likely to become mere instruments of oppression,
and the creator of greater evils than those they are appointed to cure.
"There is therefore a serious
responsibility on the Court - a
duty to itself, to the rest of the profession, to its suitors, and to the whole
of the community to be
careful not to accredit any person as worthy of public confidence who cannot
satisfactorily establish his right to that credential."
[17] The applicant submits that having
regard to the respondent's dishonest conduct, it is impossible to conceive that
any Court, legal practitioner or client could ever trust him. The instances of
dishonesty in the context of court proceedings in which the respondent appeared
are undoubtedly of sufficient seriousness to warrant removal of his name from
the Local Roll.
[18] In my view the Court should make the
orders the applicant seeks.
Council of
the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 (at [9]); Prothonotary of the Supreme Court of New
South Wales v McCaffery [2004]
NSWCA 470 (at [12]).
[7] See the
chronology of the elaborate steps of the Applicant took in pursuing these
trivialities, as indicated below:
1) 07.02.2006 The Applicant
resolved that the Respondent is not guilty of any professional misconduct but
of deficiency in his professional knowledge.
2) 04.07.2006 The Applicant
resolved to impose conditions on the Respondent’s Practice Certificate pursuant
to s. 40 of the LP2003 and to refer him to the tribunal under s. 1890 of the
Act but that decision of Ms. Coombs was derailed.
3) 19.07.2006 Ms. F B Walter
was tainted with illegality when she acted as prosecutor in Applicant’s meeting
on 7.2.2006 and 4.7.2006 and then as a judge in the Professional Affairs Committee of the Board
on 19.7.2006 when she took away the independent lawyer status of the
Respondent.
4) 12.09.2006 Judge Eckert
confirmed the decision of the Board to take away the lawyer independence of the
Respondent in VR137 of 2006 with Barrister Quinlan stating that it is okay to
get away with falsehoods as recorded in the transcripts.
5) 07.02.2007 The Respondent
was informed by Ms. Catherine Coombs, a legal officer of the Applicant that it
had had resolved on 6.2.2007 not to
carry out its original intention dated 4.7.2006 to prosecute the Respondent
further under s.180 of the LPA2003.
6) 26.9.2007 The Respondent
and the Board entered into a Consent Judgment before the then President of the
Court of Appeal, Justice Steytler on the ground that the Board did not have the
valid authority to take away the lawyer independence of the Respondent by virtue
of s.11 of the LPA 2003 (the Act) as evidenced by the Minutes.
7) The Special Inquiry
Committee of the Board sat on 3.4.2008 followed by a Special Meeting on
2.5.2008 to again take away the lawyer independence of the Respondent but it
was again found by Barrister Stephenson on behalf of the Respondent that it did
not have the valid authority to do so pursuant to s. 11 of the Act.
8) 28.10.2008: Justice Chaney
in VR 107 of 2008 again took away the lawyer independence of the Respondent by
His Honour ambushed judgment in Legal Profession Complaints Committee and
Chin [2009] WASAT 219 referred to in this judgment by the Tribunal [5].
.
9)
Justice Heenan in at first made the decision requiring the Applicant to answer
for the wrongs it had done to the Respondent in CIV 1019 of 2010 but when His
Honour was unilaterally contacted by Ms. Braesich of the Board, His Honour had
to make a turn about decision in Re President of the StateAdministrative
Tribunal of Western Australia (SAT ), Justice Chaney;Ex Parte Chin [2010] WASC 89 at [8 - 9], [18] made a turn around
decision again referred to by the Tribunal at [6].
[8] LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BACHMANN
[2009] WASAT 120
[2009] WASAT 120 (S) at 24 where the tribunal in Western Australia
“Fitness to
practice is to be decided as at the time of the hearing and not at the time of
the alleged misconduct (see A
solicitor v the Council of the Law Society of NSW (2004) 216 CLR at 253 [15]).
Subject to issues of fair notice, the Tribunal is therefore entitled to take
into account the manner in which the practitioner conducted her defence and the
veracity with which she gave evidence; see Barwick v Council of the Law Society of New South Wales [2004]
NSWCA 32 at [109] and [110].”
The
Tribunal further evaluate the criteria of fitness at:
“35. The
unsatisfactory conduct found against the practitioner is of the utmost
seriousness. That conduct is comprised of repeated and sustained dishonesty by
the practitioner during the period of August 2005 to May 2006 in the course of
legal practice and, specifically, in her dealings with her clients, her
employer and other legal practitioners. We find that her conduct, as proven
before the Tribunal in the lengthy substantive proceedings, clearly displays
that the practitioner is not a fit and proper person to remain a legal
practitioner.
36 That conclusion
is reinforced by the practitioner's conduct in the course of the hearing of
these complaints against her.”
[9] The Respondent
had been vexed seven times in terms of the following:
1)
The decision of the
Professional Affairs Committee of the Board on 4.7.2006 that the Respondent is
not guilty of professional misconduct or unsatisfactory conduct but of
DEFICIENTY IN HIS PROFESSIONAL KNOWLEDGE.
2)
The same decision
was reached again by the tribunal like Legal Practititiones Complaints
Committee on 19.7.2006;
3)
The State
Administrative Tribunal again made the same decision by Judge Eckert in VR137
of 2006 on 12.9.2006;
4)
The twice improperly
delegated Special Inquiry Committee of the Board again made the same decision
on 2.5.2008
5)
His Honour Justice
Chaney himself again made the same decision in VR107 of 2008 or [2008]WASAT252)
on 28.10.2008;
6)
His Honour Justice
Chaney acting in conflict of interest (MY UTMOST RESPECT) delivered the
prejudgment res judicata decision in the “ambushed” decision that the
Respondent is guilty of Professional in
[2009]WASAT 219 and
7)
The Honourable
Members of the SAT Panel the present proceedings made the preliminary
findings in these proceedings that are being refuted.
[10] The
principle above is derived
from the American Law Institute's Model Penal Code, which is the basis for
large portions of the criminal codes in most states found at: http://en.wikipedia.org/wiki/Culpability
[11] NORTH, KENNY AND DODDS-STREETON JJ in John Holland Rail Pty Ltd v Comcare [2011]
FCAFC at para. 3.1. said:
The rule is that a judge
should not receive any communication from anyone concerning a case that the
judge is to decide, made with a view to influencing the conduct or outcome of
the case. See, for example, Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs
CJ) and 350 (Mason J), both citing Kanda
v Government of Malaya [1962] AC 322 at 337 and Reg.
v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. In this context, communications
made by one party without the knowledge of the other are governed by the
principle that a judge should disqualify himself from hearing a matter where a
fair-minded lay observer might reasonably apprehend that the judge might not
bring an impartial mind to the resolution of the issues in the case: Ebner
v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344; British
American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 (“British American v Laurie”) at 464-5, [139]-[140]; Re
JRL at 351. This is
the apprehension of bias principle.
[12] See: Tomasic, Roman --- " Chinese
Walls , Legal Principle and Commercial Reality in Multi-Service
Professional Firms" [1991] UNSWLawJl 4; (1991) 14(1) University of New South
Wales
[13] See the
Draft Chronlogy at: http://wwwnicholasnchin.blogspot.com.au/2010/04/draft-chrology-of-cacv105-of-2008.html:
“30 26.6.2006 The Appellant moved his home and his home
office from his former residence at No.2, Seagull Close, BALLAJURA WA 6066 to
his new residence at No.387, Alexander Drive, DIANELLA, WA 6059 and informed
Mr. David Taylor of David Taylor & Associates of his new address. Mr. David
Taylor having been made aware of this fact should not have continued to serve
the Appellant with papers regarding the CIV 1131 of 2006
resulting in the wrongful costs order of the learned Registrar Powell being
made against him in absentia on the 12.6.2006. If the Appellant was being aware
of the papers of the impending improper costs order of Registrar Powell, he
would have warded it off because the Memorandum of Appearance filed on his
behalf by Barrister Alan Camp was meant to have been withdrawn or was not
filed. Even if it was filed, the late Ms. Nancy Hall was desirous of having it
withdrawn by filing the Appellant’s Notice of Ceasing to Act at a time before
the costs order came into effect. That Cost Order was to take effect on 3.7.2006
and Mr. David Taylor knew about this and yet omitted to inform Registrar Powell
or the Appellant resulting in the wrongful cost order coming into effect
without the Appellant’s knowledge. There was no need to make an application to
the court to have the Appellant’s name taken off at all”.
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