and finally a reply
" Private and Confidential
17 September 2021 Dear Mr
File Ref: CAS002130:lb
Your complaint about Mr Simon Finch
I am writing about the above complaint which was received on 4 March 2021.
Your complaint was characterised and dealt with as a disciplinary matter under the
Legal Profession Uniform Law (NSW) (â the LPUL â).
Complaints may be dealt with in this Office as either consumer matters or disciplinary matters.
A consumer matter is so much of a complaint about a lawyer or a law practice as relates to the provision of legal services to the complainant by the lawyer or law practice and as I determine should be resolved by the exercise of functions relating to consumer matters.
A disciplinary matter is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct.
This complaint was not determined to be a consumer matter because the subject of the complaint did not appear to be amenable to informal resolution. I did not consider that it was appropriate for me to exercise any of my functions relating to consumer matters.
Decision
Following careful consideration, I have determined to close the above complaint pursuant to my power under section 277(1)(j) of the LPUL in the public interest.
Reasons for decision Background Facts
Your complaint concerned an advertisement placed by Mr Simon Finch in the Wagga Wagga Daily Advertiser on 15 February 2021 to the effect that the law practice of Creaghe Lisle Solicitors had relocated to Cairns in Far North Queensland. The advertisement included information to the effect that client documents had been placed in the possession and control of Wagga Conveyancing and the Law.
You attached to your complaint a photograph of the office door of Creaghe Lisle Solicitors at 88 Fitzmaurice Street, Wagga Wagga taken on 15 February 2021. A notice placed on the door related to Christmas closure.
You considered that the advertisement in the Wagga Wagga Daily Advertiser was insufficient notice to clients that their documents had been transferred to another law practice without their knowledge or consent. At the time of lodging your complaint you had already retrieved your documents from Wagga Conveyancing and the Law and lodged them with another law practice.
The Allegation
Your complaint appeared to be that Mr Finch had acted unprofessionally by not providing adequate notice to clients about their documents being transferred to another law practice and the fact that Creaghe Lisle Solicitors was relocating.
Unsatisfactory Professional Conduct and Professional Misconduct â Disciplinary Matters
The legislation that sets up my office and governs the operation of the complaints scheme also provides a statutory test, which applies to the assessment of complaints. For me to take further action on a disciplinary matter, I must be satisfied (to the requisite, Briginshaw , standard â see below), that a lawyer has engaged in unsatisfactory professional conduct (section 299 LPUL) or that their conduct may amount to professional misconduct (section 300 LPUL).
Unsatisfactory professional conduct is conduct falling short of the standard of competence and diligence that a member of the public is entitled to expect from a lawyer. Professional misconduct is more serious and involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence or conduct that would justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
Standard of proof
The standard of proof applicable in this jurisdiction is set out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362. I cannot make any finding of fact, that is adverse to a
lawyerâs interests, unless the evidence proves it to that standard. Specifically, as Dixon J stated in that decision:
âThe truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proven to the reasonable satisfaction of the tribunal. In such matters âreasonable satisfactionâ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. â [Emphasis added.]
Consideration
The disciplinary process is not concerned with punishment, or with addressing isolated errors. Mere negligence, without more, is also an insufficient basis to take disciplinary action against an individual lawyer.
My task is to consider each allegation about the solicitor, as framed, and to consider whether I am satisfied, to the requisite standard of proof, that each allegation is made out on the evidence before me. I must also consider whether any protective action is warranted in the public interest, as the purpose of this jurisdiction is primarily to protect the clients of law practices and the public generally
In my view, having considered the overall circumstances in this matter, I cannot be satisfied, to the requisite standard, that any protective action, or further investigation, is required.
The reason for my decision is that Mr Finch has ceased practising in NSW and the Law Society has appointed a manager to the law practice of Creaghe Lisle Solicitors.
strong text
You are right that Mr Finch should have provided clients with at least 14 daysâ notice of his intention to transfer his files and safe custody documents to Wagga Conveyancing and the Law. Mr Finch should also have provided clients with the opportunity to tell him to transfer their matters to another law practice or to return their documents.
However, given that Mr Finch is no longer practising and a manager has been appointed to Creaghe Lisle Solicitors, I do not consider that any protective action is warranted. It is not an appropriate use of the limited resources of my Office to investigate this complaint any further. Consequently, I am closing the complaint file in the public interest pursuant to section 277(1)(j) of the LPUL.
Conclusion
The disciplinary jurisdiction is primarily concerned with public protection. It is not punitive, and is not intended to be a substitute for legal action (except to the extent provided by the limited circumstances set out in Part 5.5 of the LPUL).
In my view, for the reasons noted above, I cannot be satisfied, to the requisite standard, that the solicitor has engaged in unsatisfactory professional conduct or that their conduct may amount to professional misconduct with respect to any of the above allegations.
Accordingly, I cannot be satisfied that any protective action is warranted in all the circumstances. Please refer to Fact Sheet 1 (provided to you under cover of a letter to you dated 4 March 2021) should you require more information about the complaint handling process. You can also access Fact Sheet 1 on our website at www.olsc.nsw.gov.au
While your complaint has been closed, I hope that my explanation has been helpful to you.
Yours sincerely
John McKenzie
Commissioner
I have repeated the relevant paragraph below:
"You are right that Mr Finch should have provided clients with at least 14 daysâ notice of his intention to transfer his files and safe custody documents to Wagga Conveyancing and the Law. Mr Finch should also have provided clients with the opportunity to tell him to transfer their matters to another law practice or to return their documents"
And so to my original post. Who oversights the bodies over sighting the delivery of professional services.
