2024-07-19 PSD decision
This is the Professional Standards Department (PSD) of the Law Society of NSW decision about my 2024-04-14 Complaint to OLSC about solicitor Timothy Ceballos. Go to page Timothy Ceballos for further information about complaint process and analysis of decision. See Analysis of PSD decision. PSD ignored the evidence of the Ceballos misconduct I have provided and choose to take no action.
I removed some private information.
PSD letter
19 July 2024
By email only:
Dear Dr Stonis,
Complaint by you about Timothy John Ceballos
The purpose of this letter is to advise you that the Professional Conduct Committee of the Law Society of NSW (Committee) has completed its consideration of the complaint made by you about Timothy John Ceballos.
On 18 July 2024, the Committee closed the complaint pursuant to s277(1)(h) of the Legal Profession Uniform Law (NSW) as it formed the view that the complaint required no further investigation.
The Committee’s reasons are set out in Attachment ‘A’.
As a result of the Committee’s decision, the Law Society’s file is now closed.
The decision of the Committee is final. However, please note that the NSW Legal Services Commissioner may, at her absolute discretion, conduct an internal review if she considers it appropriate to do so. Please refer to the Complaints Process Information brochure previously provided to you for more information about internal reviews.
The NSW Legal Services Commissioner and the Solicitor have been advised of the closure of the complaint.
Yours faithfully
C.CHAU
Team Leader, Investigations Professional Standards
Encl.
Attachment A
Reasons for Decision
Background
1. The matter arises in the context of a personal injury dispute between a person injured in a motor accident and an insurer, resolved by the tribunal of the Personal Injury Commission (PIC) in July 2023 (Proceedings).
2. Dr Alfonsas Stonis (Complainant) was involved in a road traffic incident in March 2015 and was frustrated by the management of his case by the driver’s insurance company, QBE Insurance Group (QBE).
3. In 2018, the Complainant contacted Law Partners to represent him in a claim against QBE.
4. Representing QBE was Mr Timothy Ceballos (Respondent Solicitor), a Principal within the Insurance and Commonwealth Government teams of McInnes Wilson Lawyers Pty Ltd.
5. The Complainant provided a detailed account of the following key events in the matters’ procedural history:
a. Law Partners directed the Complainant to be assessed by a psychologist, Vanitha Moodley, selected by the Respondent Solicitor in 18March 2020. The Complainant disagreed with the content of that psychological report.
b. Law Partners then refused to challenge the report and encouraged settlement with QBE, leading the Complainant to perceive collusion between his solicitor and the Respondent Solicitor. He perceives the intention of the report to have been an exertion of pressure on him to accept settlement.
c. On the basis of that report, the Respondent Solicitor submitted an application for an assessment of damages to the PIC claiming that QBE was not liable for any award of compensation to the Complainant.
d. The Complainant engaged a new solicitor who organised for the Complainant to be medically re-assessed. The independent assessment by Dr Wayne Mason, a Medical Assessor at the PIC, confirmed a PTSD diagnosis and significant impairment.
e. On 14 April 2021, the Respondent Solicitor requested a review of the medical assessment on the basis that it was incorrect in a material respect. The request was granted. The Complainant asserts that the request contained numerous incorrect statements and had an effect on the review.
f. The Complainant’s second solicitor submitted his documents to the PIC. Though, she did not accept the Complainant’s information on the errors in the initial psychological assessment or other incorrect statements by the Respondent Solicitor. That solicitor also pressured him to accept an unfavourable settlement without any compensation for loss of past income.
g. The Complainant engaged a third solicitor in early 2023 following the second solicitor’s resignation. The third solicitor also did not forward the Complainant’s information on the Respondent Solicitor’s incorrect statement to the PIC.
h. On 13 June 2023, the third solicitor provided the Complainant with the particulars of the Respondent Solicitor’s party dated 28 May 2023. The Complainant provided his solicitor with a list of incorrect statements within the Respondent Solicitor’s particulars.
i. On 28 June 2023, the PIC assessment conference did not transpire in the Complainant’s favour. He asserts that his solicitor misrepresented him.
j. The Complainant asked his third solicitor to commence civil proceedings in court, though he refused.
6. The Certificate of Determination dated 3 July 2023 assessed the Complainant’s damages at $410,929.40, as well as legal costs and disbursements in the sum of $41,319.20. The Complainant accepted the award on 27 August 2023, though considers this result “very unfair” and the product of “lots of factual errors.”
7. The Complainant views that his personal injury claim was determined on the incorrect information provided by the Respondent Solicitor. The Complainant asserts that this resulted in much lower compensation than would have been reasonably expected.
Complaint
8. On 14 April 2024, the Complainant made a complaint about the Respondent Solicitor to the NSW Legal Services Commissioner (NSW Commissioner). The NSW Commissioner referred the complaint to the Council of the Law Society of NSW (Council) to be dealt with under Chapter 5 of the Legal Profession Uniform Law (NSW) (Uniform Law)”.
9. The overarching allegation is that the Respondent Solicitor intentionally provided incorrect statements to the Personal Injury Commission. His intention, as represented in the complaint, was to damage the Complainant’s claim and make the process difficult and painful. It is alleged that the level of incorrectness in certain documents is so high that the conduct bears on the Respondent Solicitor’s fitness to practice.
10. Bearing in mind the three-year time limit on the making of a complaint, the Complainant refers to the incorrect information particularly within the following two documents:
a. The Respondent Solicitor’s application to review independent medical assessment on 14 April 2021; and
b. The Insurer’s Submissions and Schedule of Damages dated 28 May 2020.
11. The essence of the allegation is that “basically all” of the Respondent Solicitor’s arguments in his particulars are based on “intentionally incorrect statements”, particularly that the Respondent Solicitor has:
a. Selected misleading quotes or misquoted documents, such as clinical notes and medical reports, to intentionally change their meaning or portray inconsistencies;
b. Drawn subjective conclusions, or relied upon those of medical professionals, with which the Complainant disagrees;
c. Made submissions to the Commission that were either incorrect or lacked context; and d. Exaggerated the applicability or relevance of certain facts.
12. The alleged conduct was particularly in reference to the contentious issues of the Complainant’s employment and medical histories in the periods preceding and following the motor vehicle incident, such as that in relation to the Complainant’s engagement in paid work, previous mental health symptoms in 2011 and the nature/extent/timing of his injuries.
13. The Complainant alleges that the Respondent Solicitor relied upon statements in the reports of various medical professionals that were incorrect. Particular weight is given to the Respondent Solicitor’s ordering of and reliance on the psychological report of Vanitha Moodley dated 18 March 2020. The Complainant characterises the report as “fraudulent” due to the 146 ‘factually incorrect statements’ he has identified. The Complainant has included this information on the basis that the highly subjective opinion of this psychologist was given to please her client, the Respondent Solicitor.
14. The Complainant also directly disagrees with the Respondent Solicitor’s assessment of total damages at $37.05. He instead estimated $15,000 for his past treatment expenses, $30,000 instead of no allowance proposed for future treatment expenses and $720,000 instead of no allowance for past economic loss.
15. Additionally, the Complainant suspects collusion and corruption between his various solicitors, the Respondent Solicitor and the PIC. The Complainant admits that he does not have evidence of this claim, though, asserts that it is the fitting explanation for the conduct of his multiple solicitors. This includes the Complainant’s perception that:
a. The Respondent Solicitor assisted the Complainant’s first solicitors to push him to accept the settlement offer, intending to claim higher fees from the Complainant.
b. The Complainant’s three solicitors and the PIC did not dispute or resist the errors in the Respondent Solicitor’s submissions or evidence.
Consideration
16. The Professional Conduct Committee of the Council (Committee) has conducted a preliminary assessment on the material available and determined to close the complaint on the basis that it requires no further investigation (s 277(1)(h)).
17. The complaint, taken as a whole, communicates the Complainant’s multifaceted disagreement with the Respondent Solicitor’s conduct; his representation of the facts, his procedural methods in ordering medical assessments and his perceived strategies.
18. The Committee notes that the allegations as to the conduct of the Respondent Solicitor, in large, relate to substantive evidentiary disputes from the concluded Proceedings. Namely, the disagreements relate to the facts around the Complainant’s pre-existing and accident-related physical and mental injuries, including the context, dates and nature of all forms of diagnoses and treatments, as well as the quantum of damages.
19. It appears that the overarching concern of the Complainant, given his interests as a party in the Proceedings, is the effect that the conduct had on the unsatisfactory determination of damages.
20. Without explicitly referring to the rule, the Complainant has alleged that the Respondent Solicitor breached his obligations to conduct proceedings in a manner which did not deceive or knowingly or recklessly mislead the statutory tribunal (r. 19.1 of the Legal Profession Australian Solicitors Conduct Rules (Conduct Rules)).
21. In doing so, the Respondent Solicitor is alleged to have fallen short of the standard of conduct set out in r. 5 of the Conduct Rules, reproduced as follows:
5 Standard of conduct—dishonest or disreputable conduct
5.1 A solicitor must not engage in conduct, in the course of legal practice or otherwise, which— 5.1.1 demonstrates that the solicitor is not a fit and proper person to practise law…
22. The Committee has been requested to, first, inquire into the veracity of each factual element of the Respondent Solicitor’s submissions and, next, determine that the Respondent Solicitor intended to mislead the PIC rather than robustly advocate for the interests of his client.
23. The Committee is unable to engage in the first inquiry on the basis that the complaints process is not a forum to reventilate issues that have already been determined during the Proceedings.
24. At this point, the Committee wishes to emphasise that the complaints process operates to serve only a disciplinary function; it does not possess the requisite jurisdiction to examine substantive issues underlying a complaint. The Committee is of the view that the determination of evidentiary and substantive issues is within the jurisdiction of the relevant commission/tribunal/court. There, competing factual accounts may be examined through regulated adversarial procedure, either in first instance or on review/appeal.
25. The complaint, though framed around the conduct of the Respondent Solicitor, seeks to impugn that conduct by way of submissions and annotation arguing against the veracity of key documents. These documents were relied upon in the determination of the Commission decision-maker. In effect, the Committee has been requested, to review of the merits of the original determination.
26. The Committee acknowledges the Complainant’s account that he instructed his legal practitioners to put forward his account of his employment and medical histories, refuting the conflicting submissions of the Respondent Solicitor, and that they were unwilling. Though, the Committee also notes that, despite the circumstances laid out by the Complainant, he did accept the tribunal decision on the determination of$410,929.40 in damages on 27 August 2023.
27. Ultimately, it was open to the Complainant to make the submissions which form the subject of the complaint either during the Proceedings or by availing himself of any available opportunity for review. The Committee does not possess jurisdiction to review administrative verdicts and determine issues that involve the examination of competing factual accounts.
28. As a result, the Committee is of the view that the complaints process is not the appropriate forum to progress the parts of the complaint which amount to disagreement with the Respondent Solicitor’s submissions.
29. In respect of the remaining alleged conduct, the Complainant, by his own admission, lacks material to support his suspicion of collusion and corruption between his various solicitors and the Respondent Solicitor. The Committee is of the view that the assertions of the Complainant in respect of this issue would be insufficient to establish the alleged conduct, particularly to the standard required for such conduct to amount to professional misconduct (see in Briginshaw v Briginshaw (1938) 60 CLR 336 at [361-362]; Hastwell v Legal Services Commissioner [2020] NSW SC 1008 at [77-84]).
30. The Committee closes the complaint pursuant to s277(1)(h) of the Uniform Law on the basis that the complaint requires no further investigation.