Application of David Patrick Watson

[2004] NSWSC 25

CITATION:	Application of David Patrick Watson [2004] NSWSC 25
HEARING DATE(S):	2 February 2004
JUDGMENT DATE:	3 February 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Order for issue of warrant.
CATCHWORDS:	PROFESSIONS & TRADES [100]- Lawyers- Solicitors- Consequences of failure to attend for examination by receiver- Legal Profession Act 1987, s 105.
LEGISLATION CITED:	Evidence Act 1995, Pt 42, s 194 Legal Profession Act 1987, s 105
PARTIES :	David Patrick Watson (P)
FILE NUMBER(S):	SC 5467/03
COUNSEL:	M R Elliott (P)
SOLICITORS:	Horton Rhodes (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 3 February 2004

5467/03 – APPLICATION OF DAVID PATRICK WATSON

JUDGMENT

1 HIS HONOUR: I now give my reasons for issuing a warrant to arrest a solicitor which I made yesterday afternoon. Mr David Patrick Watson is the receiver of a solicitor whom I will identify as ‘W’. Bryson J made an order under s 105 of the Legal Profession Act 1987 that ‘W’ attend before the Registrar to be examined by the receiver pursuant to that section. I have a certificate of default from Senior Deputy Registrar Wearne that ‘W’ failed to attend.

2 Mr Elliott for the receiver moves either under the Supreme Court Rules Pt 42 or under s 194 of the Evidence Act 1995 for an order arresting ‘W’.

3 The material before the Court suggests that a senior solicitor, under the protocols of the Law Society, has been assisting ‘W’ without fee. That solicitor has indicated that he has heard that ‘W’ has gone to South Australia to deliver telephone books because he has no income and that is the only way he can get income. Whether ‘W’ was telling his solicitor the exact truth or not is unknown.

4 The Court must treat very seriously a default by a solicitor, one of its officers, in complying with an order made under s 105. It is not an order that is made lightly and it is made for the public good.

5 A solicitor is an officer of this Court and the Court expects its officers to observe to the letter their responsibilities. It is not a satisfactory answer that the person is working somewhere and needs an income, not to obey the order of the Court.

6 Furthermore, the whole week was set aside for examinations in this matter and a further week commencing 23 February, and a great deal of inconvenience is caused in the Court not being able to use those dates, and other litigants will suffer.

7 I think that in the future if a solicitor fails to obey an order under s 105, the ordinary order would be that he or she be imprisoned for 28 days with perhaps the writ to lie in the office for a short period in case there be some proper explanation.

8 However, I did not do that in this case because, as I understand it, this is the first case of default under s 105 and the profession probably needs to be advised as to the Court’s stern attitude before such orders are implemented.

9 What I did was to issue a warrant for arrest in similar form to warrants that are issued for company directors that fail to attend for examination. So I signed a warrant to the Sheriff to arrest ‘W’ and bring him before the Court on Monday 23 February 2004, or such earlier date as the Sheriff considers appropriate, detaining ‘W’ in custody in the meantime.

10 As I noted yesterday, such a warrant should be typed up in duplicate, one copy to be left with the file and a sealed copy to be delivered to the Sheriff at the Downing Centre or at the office in the old Supreme Court building.

11 I ordered accordingly and stood the matter over to 23 February 2004.

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Last Modified: 02/05/2004