Applicant or 3 of 2025 v Council of the Law Society of the Act (Occupational Discipline)

[2025] ACAT 67

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT OR 3 of 2025 v COUNCIL OF THE LAW SOCIETY OF THE ACT (Occupational Discipline) [2025] ACAT 67

OR 3/2025

Catchwords:               OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – where applicant solicitor failed to comply with costs disclosure obligations – where respondent decided to take summary action against the applicant including by reprimanding her and imposing a fine of $1,500 - role of tribunal on an appeal under section 416 of the Legal Profession Act 2006 - whether complaint made against solicitor was an abuse of process – whether there was an unreasonable delay on the part of the respondent in investigating and taking action and, if so, whether the complaint should be dismissed – whether the solicitor’s failure to comply with her costs disclosure obligations was within the scope of the complaint – identification of the correct or preferable decision – whether fine imposed on applicant should be increased

Legislation cited:        Family Law Act 1975 (Cth)

Legal Profession Act 2006, ss 269, 271, 386, 393, 394, 397, 410, 413, 416, 417

Subordinate

Legislation cited:        Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 12.06

Legal Profession (Solicitors) Conduct Rules 2015, r 4.1.1, 4.1.3, 7.1

Cases citedCouncil of the Law Society of the ACT v Legal Practitioner M1 (Occupational Discipline) [2015] ACAT 78

Herron v McGregor (1986) 6 NSWLR 246

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Legal Practitioner 201823 (Eunice Ryan) v Council of the Law Society of the Australian Capital Territory [2019] ACAT 97

Legal Practitioner 202021 v Council of the Law Society of the ACT [2021] ACAT 74
Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Tribunal:Presidential Member J Lucy

Senior Member E Morrison

Date of Orders:  22 September 2025

Date of Reasons for Decision:      22 September 2025

Date of Publication:  30 September 2025

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 3/2025

BETWEEN:

APPLICANT OR 3/2025
Applicant

AND:

COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent

TRIBUNAL:Presidential Member J Lucy

Senior Member E Morrison

DATE:22 September 2025

ORDER

The Tribunal orders that:

1. The respondent’s decision to publicly reprimand the applicant is confirmed.

2. The matter is listed for a hearing on 7 October 2025 at 10am for one hour, for the parties to make submissions about:

   (a)the form of the orders the Tribunal should make;

   (b)whether the interim non-publication and anonymisation orders made in this matter should be continued, in the form of final orders, or revoked.

   ………………………………..

Presidential Member J Lucy

For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

1. The applicant, a solicitor, appealed from a decision of the Council of the Law Society (the Law Society), made after it investigated a complaint about the applicant, to take summary action against her under the Legal Profession Act 2006 (the Act) in respect of a failure to comply with her costs disclosure obligations. The Law Society decided to publicly reprimand her, to impose a fine of $1,500 and to require her to compete a course in costs disclosure.

2. The applicant contended that the complaint was an abuse of process and that the Law Society had erred in various ways, including by relying on irrelevant matters and by making the decision after an unreasonable delay. She said that, accordingly, the complaint should be dismissed. The Law Society, on the other hand, submitted that the fine should be increased to $10,000.

3. We consider that our role on an appeal under the Act is to conduct a merits review of the Law Society’s decision and not to determine whether the Law Society made legal errors. For the reasons which follow, we are of the view that the decision made by the Law Society is both correct and preferable.

Background

1. The applicant was admitted as a barrister and a solicitor in the Australian Capital Territory in 1998. In 2001, she became the principal of a law practice (the Law Practice).

2. In early July 2021, a woman (the Client) became a client of the Law Practice. The Law Practice thereafter acted for her in proceedings in the Federal Circuit and Family Court of Australia brought by her estranged husband, seeking orders for a division of property pursuant to the Family Law Act 1975 (Cth). At or about the same time, the applicant had an initial meeting with the Client during which she gave advice to the following effect:

   “If your matter goes to a final hearing, you can expect costs of $50,000 depending what issues come up and how long the matter is listed for hearing for”.[1]

   [1] Applicant’s Witness Statement dated 2 April 2025 at [7]

3. Between July 2021 and June 2023, the applicant was the solicitor at the Law Practice with carriage of the Client’s matter. The applicant corresponded with the Client by email and by phone during that period.

4. On 23 July 2021, the applicant filed documents with the court on behalf of the Client.

5. On 10 August 2021, the Client signed a Costs Disclosure and Notification of Client Rights and a Costs Agreement Document.[2] Relevantly, clause 2.2 of the costs agreement stated:

   2.2    Estimate of Costs

   2.2    It is not reasonably practicable to provide an accurate estimate of the total legal costs. However, our hourly rate is $390.00 plus 10% GST so the time taken to finalise your matter will directly impact on your total legal costs.

   [2] Exhibit MM1 211-218

6. On 9 February 2022, the applicant represented the Client at a mediation. On or about the same day, the applicant gave the Client a costs notice prepared for the purpose of rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules). Among other things, the notice provided an estimate of approximately $50,000 for total anticipated costs and disbursements if the matter did not resolve at mediation.[3]

   [3] Applicant’s Witness Statement dated 2 April 2025 at [28]-[29]. A copy of the notice was not available to the Tribunal, however, the respondent did not dispute the notice was given and it contained the cost estimate as described.

7. On 2 September 2022, the applicant gave the Client a Certificate of Readiness.[4] The certificate recorded costs incurred to date to be $19,000, estimated a two-day hearing, and provided an estimate of legal costs and disbursements for the remainder of the proceedings to be $20,000 (costs) and $15,000 (disbursements). The Client signed and returned the certificate to the Law Practice.

   [4] Exhibit MM1 pages 2-3

8. On 14 October 2022, the applicant sent a letter to the Client advising that her hourly rate had increased, and provided an amended costs agreement with the increased rate. The Client did not sign the amended costs agreement but continued to provide instructions to the Law Practice.

9. On 18 October 2022, counsel engaged by the applicant for the Client’s proceedings (Counsel) provided a written Costs Disclosure and Costs Agreement to the Law Practice, and issued Counsel’s first invoice for the matter.[5] On 21 October 2022, the applicant sent both documents to the Client.[6]

   [5] Exhibit MM1 pages 73-75, 236

   [6] Exhibit MM1 page 76

10. On 23 November 2022, the Client’s matter was listed for a three-day hearing commencing on 30 January 2023.

11. On 27 January 2023, the applicant sent the Client a second Costs Notice pursuant to rule 12.06 of the Family Law Rules.[7] The notice set out the Client’s actual costs up to and including mediation (being legal costs of $17,350 and Counsel fees of $1,650), and an estimate of further costs up to an including the final hearing (being legal costs of $33,000, Counsel fees of $22,000, and expert valuer fees of $2,177.50).

    [7] Exhibit MM1 page 18

12. On 30 January 2023, the Client’s property proceedings were finalised with consent orders.

13. On 31 January 2023, Counsel issued a final invoice for the sum of $22,000.[8]

    [8] Exhibit MM1 page 78

14. On 30 April 2023, the Client paid the full sum of Counsel fees.

15. On 29 May 2023, the Client complained about the applicant to the Law Society by lodging a Complaints Form (the complaint).[9]

    [9] Exhibit MM1 pages 7-35

16. On 5 June 2023, the applicant sent the Client a final invoice and an itemised account.[10] The outstanding balance was recorded as $33,220 (being legal costs of $33,000 and disbursements of $220). The applicant offered to reduce the invoice by $5,000 if the Client paid within seven days.

    [10] Exhibit MM1 pages 81-104

17. On 6 June 2023, the Client emailed the applicant asking for an extension of the seven-day deadline for the discount.[11] The Client did not query the invoice or advise the applicant she had lodged a complaint with the Law Society about a week earlier.

The complaint

[11] Exhibit MM1 page 166

1. When making her complaint, the Client ticked the following boxes on the complaint form:

   6.      By making this complaint, I am hoping to:

   …

   ☒     resolve my dispute about fees

   …

   ☒     improve the service provided by the solicitor

   …

   ☒     receive financial compensation

2. The relevant period of the conduct complained of was described as follows:

   7.      When did the conduct occur?

   From 2022 to date

3. The Client provided details of the complaint, as follows:

   I have been liaising with [the applicant] to help me with my property settlement matter in Family court and I believe that she is overcharging me. We did a final order by consent on 31 January 2023. However, [the applicant] and her barrister charged me full court fees for a three day hearing although we never had that hearing. Altogether I have paid them about $43,000 in costs and she still wants another $35,000 or more from me.

   I had spoken to her and emailed her my concerns but she always shouts and screams at me and stressed me on the phone etc which I find highly unprofessional and intimidating. She knows that I am also a solo single mum with three children and I struggle with costs; yet she threatens me and says she will not help me anymore. This has bene going on since the middle of last year.

   In 2021 to 2023, the court cases have been delayed due to the absences of my ex husband and there were long durations between zoom directions hearings., She said she has been charging me by year like I have to pay her salary as I get my salary per year. I have also done the majority of the administrative work for her as she says that she will charge me less in the end, however this is not so. She has not been clear from the beginning on what her final estimated charges could be but she sends me the bill after about one and a half years. She bills me by the minute/hour according to her costs agreement but the minutes and hours are determined by her. I however believe that this payment of $43,000 is more than enough to cover all the costs but she wants probably up to 100k and I am unable to pay her anymore.

   My ex-husband has not been complying with the orders and I have decided to proceed on my own with the family courts and put in an application for my own contravention order. She is not harassing me and calling me fervently again at all odd hours when I am at work and hassling me and screams at me. She says that if I earn money at work she also needs to earn her money. But my salary is not $500 an hour and I am a casual employee at a school. Hence I do not earn much but she expects me to take loans out of my mortgage to pay her…

   Areas of Concern are:

   1.       Delay in communication and withholding documents from me about correspondence from the court and the other party.

   2.       Does not do what the client (me) asks for but goes on a tangent to do what she feels is right and forcing me to adhere to her methods by shouting and raising voice and other verbal intimidation.

   3.       Unprofessional behaviour with regards to communication with me the client

   4.       Acting different and polite when I bring a third party along but excessively rude and derogatory when it is just me.

   5.       Very difficult to contact and does not get back to me as soon as possible, many times taking days to respond and ignoring my emails.

   6.       Does last minute work on my case due to her poor time management and overloading on cases hence the work goes into weekends and so she overcharges for that.

   7.       Excessive advice and acting superior to client (me) hence using that to increase hours and collect fees hourly.

   8.       Exorbitant charging of fees based on fabricated hours of work

   9.       Taking advantage of single solo mother, who is a casually paid teacher/employee.[12]

   [12] Exhibit MM1 pages 31-32

4. On 19 June 2023, the Law Society sent a letter to the applicant giving notice of the complaint and enclosing a copy of the Complaint Form.[13] Relevantly, the letter stated that:

   [13] Exhibit-MM1 pages 4-6

   The purpose of this letter is to provide you with a copy of the complaint and to provide you with the opportunity to respond. This letter also provides information about the complaints process, and support available from the Society’s Members’ Adviser service.

   The complaint

   The Society has made a preliminary decision to further assess and investigate the following elements of the complaint:

   1.       Excessive charging of legal costs

   2.       Rude and discourteous conduct

   Your response

   The Professional Standards Committee of the Society requests that you respond to each of the elements of the complaint which the Society has indicated it intends to further investigate (as listed above).

   It would be helpful for the Professional Standards Committee if your response includes a brief history of the matter and other relevant background information. You should then address specific complaints.

   In addition, please ensure that your response addresses the following specific matters:

   (a)     The complaint alleges that despite there being no final hearing, which was scheduled for 3 days, [the Client] was charged for three days of hearings. Please comment.

   (b)     [The Client] alleges that in attempting on a number of occasions to discuss your fees, you screamed and shouted at her, which cause her great distress. Please comment.

5. On 17 July 2023, the applicant provided a written response to the Law Society.[14]

   [14] Exhibit MM1 pages 45-177

6. On 20 July 2023, the Law Society sent a letter to the applicant advising the complaint would be considered by the Professional Standards Committee and the Law Society will “keep you advised of its progress”.[15]

   [15] Exhibit MM1 pages 178-179

7. On 10 August 2023, the Law Society sent a letter to the applicant advising the complaint had been referred to the Law Society’s solicitors, Thomson Geer.

8. On 11 August 2023, Thomson Geer sent a letter to the applicant containing a detailed list of requested information and documents.[16] This included whether the applicant had given the Client a cost disclosure statement before 14 October 2022, whether the applicant had advised the Client about Counsel’s cancellation fees if her matter settled, and for copies of relevant tax invoices, the trust account statement and correspondence or documents in which the applicant discussed costs with the Client. The letter did not ask for information or documents relating to general communications or relationship matters between the applicant and the Client.

   [16] Exhibit MM1 pages 183-185

9. On 8 September 2023, the applicant provided a written response to Thomson Geer, with multiple documents attached.[17]

   [17] Exhibit MM1 pages 188-497

10. On 4 September 2024, Thomson Geer sent a letter to the applicant giving an update on the status of the Law Society’s investigation, providing particulars of the allegations under consideration and asking the applicant to make any final response to the complaint by 18 September 2024.[18]

    [18] Exhibit MM1 pages 499-503

11. The letter relevantly stated:

    We are instructed that having regard to all the facts and circumstances presently known to it, Council does not propose to consider whether the conduct amounts to professional misconduct. You should, however, address whether the Council can be satisfied that you are generally competent and diligent having regard to the three previous complaints upheld against you. We will address these complaints below.

    1.2Allegations

    We are instructed that the Council will consider the following two allegations:

    (a) You failed to provide [the Client] with an estimate of the total legal costs of her matter or a range of estimates of the total legal costs of her matter and an explanation of the major variables that will affect the working out of the costs in writing before or as soon as practicable after your practice was retained in [the Client’s] matter (as required under section 271(1) of the Act) in breach of section 269(1)(d) of the Act.

    (b) You failed to:

    (i) act in the best interests of [the Client] in breach of rule 4.1.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Rules); and/or

    (ii)     deliver legal services competently and diligently in breach of Rule 4.1.3; and/or

    (iii)    provide clear and timely advice to [the Client] to assist her to understand relevant legal issues n dot make informed choices about the matter in breach of Rule 7.1

    by failing to provide any advice to [the Client] to the effect that [Counsel’s] costs agreement allowed her to charge:

    (iv)    $5,000 per day of hearing, mediation or arbitration if the matter was settled or de-listed several or less days before any such day; or

    (v)     $3,750 per day of hearing, mediation or arbitration if the matter was settled or de-listed more than seven but not more than 14 days before any such day.

    We note that by letter dated 29 May 2023 the Council sought your response to the following two allegations:

    (a)overcharging; and

    (b)rude and discourteous conduct.

    We are instructed that the Council does not require any further response to these allegations.

    …

12. The letter also provided a list of material and documents to be considered by the Law Society in making its decision. In particular, the letter advised the Law Society would consider a decision of the ACT Civil and Administrative Tribunal (ACAT) and two reasons statements provided by the Law Society in relation to unrelated complaints made by three previous clients against the applicant.

13. On 25 October 2024, the applicant sent a letter to Thomson Geer setting out a final response to its letter and the complaint.[19]

    [19] Exhibit MM1 pages 504-509

14. On 18 December 2024, Thomson Geer sent a letter to the applicant advising the outcome of the investigation.[20] The letter advised the Law Society had decided to summarily deal with the complaint pursuant to subsection 413(2) of the Act by imposing the following sanction:

    (a)     a public reprimand;

    (b)     a fine of $1,500 payable within 28 days of you being notified of the decision; and

    (c) a direction for you to undertake stated further legal education, being a course in cost disclosure, within 6 months of the date of you being notified of the decision and to provide evidence of completion to the ACT Law Society.

    [20] Exhibit MM1 pages 511-512

15. A Statement of Reasons was attached to the letter[21] and described the complaint as follows:

    4.By letter dated 4 September 2022 TG advised [the applicant] that the Council would consider the following grounds of complaint. In summary:

    (a) whether [the applicant] breached section 269(1)(d) of the Legal Profession Act 2006 (ACT) (Act) by failing to provide [the Client] with an estimate of the total legal costs of her matter or a range of estimates for the total legal costs of her matter and an explanation of the major variables that would affect the working out of the costs in writing before or as soon as practicable after her practice was retained in [the Client’s] matter; and

    (b) whether [the applicant] breached rules 4.1.1, 4.1.3 and/or rule 7.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Rules) by failing to provide any advice to [the Client] to the effect that the costs agreement of counsel retained in relation to [the Client’s] matter allowed counsel to charge a cancellation fee.[22]

    [21] Exhibit MM1 page 513-524

    [22] At [4]

1. The Law Society referred to a list of material it considered in making its decision, which included the applicant’s responses to it and to Thomson Geer, as well as the ACAT decision and reasons statements from the three previous complaints made against the applicant.[23]

   [23] At [6]

2. In relation to the two allegations it had investigated, the Law Society determined:

   (a)The applicant had failed to give the Client a written estimate of the total legal costs of her matter before, or as soon as practicable after, the Law Practice was retained as required by section 271(d) of the Act, which was a breach of section 269(1)(d) of the Act;[24] and

   (b)The applicant ought to have provided advice to the Client to the effect that Counsel’s costs agreement allowed her to charge a cancellation fee and that in not doing so, the applicant breached rules 4.1.1, 4.1.3 and rule 7.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (the ConductRules).[25]

   [24] At [71]

   [25] At [78]

3. In deciding what action to take pursuant to section 410 of the Act, the Law Society determined that:

   (a)In relation to the failure to comply with costs disclosure obligations, there was a reasonable likelihood the tribunal would find the applicant guilty of unsatisfactory professional misconduct (but not professional misconduct);[26]

   (b)In relation to failing to advise of Counsel’s cancellation fees, there was no reasonable likelihood the tribunal would find the applicant guilty of unsatisfactory professional misconduct or professional misconduct;[27]

   (c)The conduct warranting a disciplinary response therefore related only to the failure to comply with costs disclosure obligations;[28]

   (d)It was not in the public interest to dismiss the complaint;[29]

   (e)On balance, the Law Society was satisfied the applicant was generally competent and diligent;[30] and

   (f)Accordingly, the Law Society could adequately deal with the complaint by exercising its summary powers under section 413 of the Act.

   [26] At [82]

   [27] At [84]

   [28] At [97]

   [29] At [88]

   [30] At [96]

4. At the end of the Statement of Reasons, the Law Society advised it was unable to resolve the costs dispute between the applicant and the Client and notified the parties they could apply for a costs assessment under Division 3.2.7 of the Act.[31]

The applicant’s appeal

[31] At [99]

1. On 14 January 2025, the applicant filed an appeal with the tribunal from the Law Society’s decision, pursuant to section 416 of the Act. There is no dispute that the applicant is entitled, as the Australian legal practitioner the subject of the complaint, to appeal to the tribunal from the respondent’s decision to take action under section 413 of the Act.[32]

   [32] Act, s 416(1); Table 416, item 3.

2. The applicant identified her reasons for applying for review, on the application form, as follows:

   1.The decision made by the Council of the Law Society denied the Applicant procedural fairness in that it:

   (a) Was made in circumstances where the "complaint" as defined in Chapter 4 of the Legal Profession Act 2006 constituted an abuse of process;

   (b)     Relied upon irrelevant matters, being;

   (i)Conduct beyond the scope of the "complaint";

   (ii)The conduct recorded in the decision Council of the Law Society of the ACT v Legal Practitioner M1 (Occupational Discipline) [2015] ACAT 78, that conduct taking place in 2011;

   (c)     Does not take into account relevant matters, being that the "complaint" constituted an abuse of process; and

   (d)     Was made after unreasonable delay by the decision maker.

   2.The decision made by the Council of the Law Society was infected by jurisdictional error in that it:

   (a) Was made in circumstances where the "complaint"; as defined in chapter 4 of the Legal Profession Act 2006 constituted an abuse of process;

   (b)     Purported to impose penalties for conduct beyond the scope of the "complaint"; and

   (c)     Was made after unreasonable delay.

3. The applicant sought the following orders:

   1.That the decision made by the Council of the Law Society of the ACT be set aside.

   2.That the complaint be dismissed.

   3.That the Respondent pay the Applicant's costs.

4. On 13 March 2025, the Tribunal made an interim order that the applicant was only to be referred to by a pseudonym, and an interim order prohibiting the publication of information or particulars that might enable the applicant to be identified or that would reveal her identity.

Evidence and hearing of the appeal

1. The Tribunal held a hearing of the applicant’s appeal on 23 May 2025. Both parties were represented by counsel.

2. The applicant relied upon a witness statement, made by herself, and a witness statement made by a clerk of the firm. We will not refer to him by name, as that might reveal the applicant’s identity, but will refer to him instead as the Clerk. The Law Society relied upon an affidavit of Greg Williams, the Regulatory Service Manager of the Law Society. Mr Williams was not available for cross-examination, due to personal reasons.[33]

   [33] Transcript dated 23 May 2025, page 4, lines 25-33

3. The applicant was cross examined at the hearing.

Nature of the appeal

1. There was some difference of opinion between the parties, at least initially, as to the nature of an appeal under section 416 of the Act. However, at the hearing, the applicant’s counsel conceded that the appeal was probably in the form of a merits review, and that the Tribunal was bound by the decision in Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312 (Legal Practitioner “M”).[34] That concession was properly made.

   [34] Transcript dated 23 May 2025, page 58, line 47 to page 60, line 4

2. In Legal Practitioner “M”, Refshauge ACJ considered the nature of an appeal to ACAT from a disciplinary decision of the respondent under section 416 of the Legal Profession Act 2006. His Honour observed:

   [75] Although described as an “appeal” (s 416 of the Legal Profession Act), it is, in reality, an administrative review of the decision of the Council of the Law Society as I explained in Appellants v The Law Society of the ACT (2011) 252 FLR 209 at 228; [109]–[111]. The powers of the ACAT are enlarged beyond those of the Council and are set out in s 416 of the Legal Profession Act: Appellants v The Law Society of the ACT at 229; [119]–[122].

   [76] An issue arose as to the nature of the proceedings before the ACAT. It was, of course, an administrative review of the decision of the Council.[35]

   [35] Legal Practitioner “M” at [75]

3. The Acting Chief Justice commented that “[o]rdinarily, the function of merits review by a tribunal such as the ACAT is to determine what is the ‘correct or preferable’ decision”[36] and appeared to consider that that was its function when hearing an “appeal” under the Legal Profession Act 2006.

   [36] Legal Practitioner “M” at [88]

4. Having regard to relevant authorities, Refshauge ACJ concluded (in relation to the nature of an appeal under the Legal Profession Act 2006):

   [94] The balance of authority seems to favour a wide role for the ACAT in hearing the appeal from the Council of the Law Society. As noted, the precise label given to the process is not always helpful. It seems, however, that the ACAT proceeds in this situation in a way that is more closely identified with the notion of a hearing de novo; that is, it revisits the application without regard to error and may receive not only the evidence before the Council but additional evidence (perhaps with some limitation) where, as I now address, the onus of proof remains on the Council to prove the conduct the subject of the complaint and that it is unprofessional.[37]

   [37] Legal Practitioner “M” at [94]

5. We are bound by his Honour’s decision and have followed it.

6. We note also that, in Legal Practitioner 201823 (Eunice Ryan) v Council of The Law Society of the Australian Capital Territory [2019] ACAT 97 at [10], Presidential Member McCarthy observed:

   A proceeding under section 416 of the Act, despite its description as an “appeal”, is an administrative review of a decision of the Council made under section 413 of the Act. The Tribunal is required to consider the matter de novo, or afresh. It therefore ‘stands in the shoes’ of the Council and decides the matter on the evidence before it, which may include evidence not previously before the Council. (footnotes omitted)

7. We agree with those observations.

Legal framework

1. The purposes of the Act are set out in section 6 of the Act. Section 6 provides:

   6 Purposes of Act

   The purposes of this Act are as follows:

   (a) to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

   (b) to facilitate the regulation of legal practice on a national basis across State and Territory borders.

2. Chapter 4 of the Act, entitled “Complaints and discipline,” deals with complaints about, and discipline of, Australian legal practitioners. Section 384 of the Act provides for the purposes of Chapter 4. It provides:

   384 Purposes—ch 4

   The purposes of this chapter are as follows:

   (a) to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

   (b) to promote and enforce the professional standards, competence and honesty of the legal profession;

   (c) to provide a means of redress for complaints about lawyers;

   (d) to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.

3. Chapter 4 of the Act applies to an Australian legal practitioner in relation to conduct to which the chapter applies.[38] The conduct to which Chapter 4 applies is the subject of sections 391 and 392 of the Act and includes conduct happening in the ACT.[39]

   [38] Act, s 390(1)

   [39] Act, s 391(1)

4. Pursuant to sections 393(1) and 394(2) of the Act, a complaint may be made under Chapter 4 to a council about conduct to which that chapter applies. The term “council” means the bar council or law society council.[40]

   [40] Act, Dictionary

5. Section 394 of the Act provides for the making of complaints, as follows:

   394 Making of complaints

   (1) A complaint may be made about conduct to which this chapter applies by anyone, including a council.

   (2) A complaint must be made to the relevant council.

   (3) A complaint must be in writing.

   (4) A complaint must—

   (a)     identify the complainant; and

   (b)     if possible, identify the person about whom the complaint is made; and

   (c)     describe the alleged conduct the subject of the complaint.

   (5) A council may refer a complaint to the other council, unless it deals with the complaint itself.

6. The relevant council for a person about whom a complaint is made must give written notice to the person of the making of a complaint about the person, except in specified circumstances, including that the council considers that that would prejudice the investigation of the complaint.[41] The notice must tell the person about the nature of the complaint and the person’s right to make submissions to the council, unless the council has told the person that the council has dismissed or intends to dismiss the complaint.[42]

   [41] Act, s 397(1) and (4)

   [42] Act, s 397(3)(a) and (d)

7. The person about whom the complaint was made may make submissions to the council within a specified time and the council must consider them.[43]

   [43] Act, ss 398(1) and (3)

8. A council may summarily dismiss a complaint in certain circumstances, including if it is vexatious, misconceived, frivolous or lacking in substance.[44]

   [44] Act, s 399(1)(b)

9. Unless the complaint has been dismissed or another exception applies, a council must investigate each complaint properly made to it.[45] Upon completion of the investigation, a council has three paths open to it. Section 410(1) of the Act provides:

   410 Decision of council after investigation

   (1)After finishing an investigation of a complaint against a person, the relevant council must—

   (a)     dismiss the complaint under section 412; or

   (b)     take action under section 413 (Summary conclusion of complaint procedure by fine etc); or

   (c)     make an application to the ACAT under part 4.7.

   [45] Act, s 406(1) and (2)

10. Section 412 confers upon a council the power to dismiss a complaint, after finishing an investigation, if satisfied that:

    (a)there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct; or

    (b)it is in the public interest to dismiss the complaint.

11. Section 413 provides for a council to conclude a complaint with orders against a practitioner, in certain circumstances. It relevantly provides:

    (1)This section applies if the relevant council for an Australian legal practitioner—

    (a)     completes an investigation of a complaint against the practitioner; and

    (b)     is satisfied that there is a reasonable likelihood that the practitioner will be found guilty by the ACAT of unsatisfactory professional conduct (but not professional misconduct); and

    (c)     is satisfied that the practitioner is generally competent and diligent; and

    (d)     is satisfied that the unsatisfactory professional conduct can be adequately dealt with under this section.

    (2)The relevant council may do all or any of the following:

    (a)     caution the Australian legal practitioner;

    (b)     publicly reprimand the Australian legal practitioner or, if there are special circumstances, privately reprimand the practitioner;

    (c)     make a compensation order under part 4.8 if the complainant requested a compensation order in relation to the complaint;

    (d)     direct the practitioner to do all or any of the following:

    (i)stop accepting, for a stated time, instructions in relation to stated work;

    (ii)stop employing a stated person in the practitioner’s practice;

    (iii)undertake stated further legal education;

    (iv)seek advice in relation to the management of the practitioner’s practice from a stated person;

    (e)     impose a fine on the practitioner of a stated amount.

    (3)The maximum amount that can be imposed by way of fine is $1,500.

12. Section 416 provides for the making of appeals to ACAT including from a decision to take action against a practitioner under section 413. Pursuant to section 416(3), the ACAT may make any order it considers appropriate on the appeal.

Applicant’s case

1. The applicant has identified a number of grounds of appeal, being alleged errors of law made by the Law Society. As the tribunal is conducting an appeal in the nature of a merits review, it is not necessary for an applicant (or appellant) to identify error. The tribunal’s task is to consider all the material before it and make the correct or preferable decision, on the basis of that material.

2. The identification of error on the part of the Law Society may be of utility insofar as it could assist the Tribunal to avoid making the same error. However, it is important that the Tribunal keeps firmly in mind its statutory task, and is not diverted into engaging in a different task by the applicant’s articulation of grounds of appeal (that is, the Tribunal should not approach the appeal as if it were conducting a judicial review of the Law Society’s decision).

Ground 1: Procedural fairness

1. Ground 1 is that the applicant was denied procedural fairness by the Law Society when making its decision. This is said to have occurred in four ways, which we will refer to as sub-grounds. The sub-grounds are, in summary, that the complaint constituted an abuse of process; that the Law Society relied upon irrelevant matters; that the Law Society failed to take into account relevant matters; and that the decision was made after an unreasonable delay. It may be doubted whether all of these sub-grounds are properly characterised as aspects of the rules of procedural fairness but, as that has not been determinative in this matter, it is not necessary to say anything further about that.

2. The Law Society was bound by the rules of procedural fairness when investigating the complaint. As the applicant points out,[46] subsection 417(1) of the Act provides that the rules of procedural fairness, to the extent that they are not inconsistent with the Act, apply in relation to the investigation of complaints and the procedures of the councils under Chapter 4 of the Act. However, as the Tribunal is effectively conducting a merits review of the Law Society’s decision made under section 413 of the Act, any denial of procedural fairness by the Law Society could generally be cured in the Tribunal proceedings by the Tribunal providing the applicant with a reasonable opportunity to be heard.

   Relevant and irrelevant considerations or matters

   [46] Applicant’s written submissions filed on 7 May 2025 at [62]

3. Two of the sub-grounds are, broadly, that the Law Society had regard to irrelevant matters (being conduct beyond the scope of the complaint and conduct occurring in 2011) and failed to have regard to relevant matters (being that the complaint constituted an abuse of process).

4. The formulation of these sub-grounds is problematic. In judicial review, the grounds of failure to have regard to relevant considerations, and of having regard to irrelevant considerations, are stand-alone grounds, rather than aspects of procedural fairness. The questions of whether the considerations are relevant (in the sense of mandatory) or irrelevant (in the sense of prohibited) are to be determined by construing the statutory provision in question. If these were judicial review proceedings, the issues would be whether section 413 of the Act, properly construed, prohibits the Law Society from having regard to conduct which was not the subject of the complaint and requires the Law Society to have regard to the question of whether the complaint constitutes an abuse of process.

5. When determining an appeal under section 416 of the Act from a decision under section 413, the relevant questions for the Tribunal are whether, standing in the Law Society’s shoes:

   (a)     it is inclined to have regard to conduct which was not the subject of the complaint and, if so, whether it is entitled to do so;

   (b)     it is required to consider whether the complaint constitutes an abuse of process and, if it is not required to do so, whether this is something it wishes to consider.

6. The Tribunal is also obliged to provide the parties with procedural fairness, which generally requires it to consider the parties’ submissions. That requires it, in this case, to consider whether the complaint constituted an abuse of process because that is a matter raised by the applicant, even if that is not a mandatory consideration under the Act. We have done that below.

   Unreasonable delay

7. One of the applicant’s sub-grounds is that the Law Society’s decision is vitiated by unreasonable delay. There is scope for argument as to whether this alleged error, if established, could be cured by a further hearing in the tribunal proceedings, or whether it would be more appropriate to make an order dismissing the complaint.

8. The applicant claims that the Law Society took no action to advance the investigation of the complaint for 361 days between September 2023 and September 2024. She contends that decision being made after excessive post-hearing delay amounts to jurisdictional error, relying upon NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 85 at 213.[47]

   [47] Applicant’s written submissions filed on 7 May 2025 at [60]-[61]

9. The more relevant judgments for the Tribunal to consider are the majority judgments in the High Court’s decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 (NAIS). In that case, the Refugee Review Tribunal (RRT) made a decision to affirm the Minister’s decision to refuse to grant protection visas to the three appellants. The Tribunal had held two oral hearings, about three and a half years apart. The decision was made on the basis of findings about the appellants’ demeanour, about four and a half years after the tribunal member had first observed them give evidence in the first hearing. The High Court found, by majority, that the appellants were denied a fair hearing due to the delay, constituting a denial of procedural fairness.

1. The circumstance that the applicants’ demeanour was relevant to the RRT’s decision was critical to the High Court’s conclusion that the delay was unfair.

2. Gleeson CJ described the delay on the part of the RRT as “inordinate.”[48] His Honour observed that “[t]he circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.”  The Chief Justice also noted that “[t]he context in which delay occurs will affect any legal consequences that may flow.”[49] His Honour found that there was a denial of procedural fairness on the basis that that “[a] procedure that depends significantly upon the Tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal's capacity to make such an assessment is impaired.”[50]

   [48] NAIS at [3]

   [49] NAIS at [6]

   [50] NAIS at [9]

3. Callinan and Heydon JJ also found that the applicants had been denied procedural fairness, in the circumstances, because the Tribunal’s ability to assess the evidence was impaired. Their Honours observed:[51]

   In our opinion it is not possible to say that the Tribunal's decision, depending so much as it did, on the credibility of the appellants who gave oral evidence, was made fairly. Their application for review was lodged on 5 June 1997. The decision was delivered more than five and a half years later, on 14 January 2003, and after two sessions of intervening oral evidence separated by a period of about three and a half years. This was not a matter in which the Tribunal merely had to weigh up oral evidence against written evidence. It had to weigh up oral evidence given on one occasion with oral evidence given three and a half years later, as well as the further written material that had come to hand. That is not an exercise that can satisfactorily and fairly be carried out over widely separated serial proceedings.

   [51] NAIS at [168]

4. Kirby J also placed emphasis on the circumstance that the appellants’ claim was rejected because they “were not believed.” His Honour expressed the view that insofar as the RRT’s conclusions of fact “rested upon assessments of the credibility of the appellants, in the circumstances of such gross delay, they were flawed.”[52]

   [52] NAIS at [122]

5. This is a very different case. The Law Society’s process did not involve assessment of oral evidence. The delay was much less prolonged and could not properly be described as extreme or inordinate. The Law Society has provided the Tribunal with some explanations as to why it took as long as it did to make a decision. Even if we were not to accept those explanations, however, we do not consider the delay would vitiate the Law Society’s decision, primarily because the delay did not affect any assessment it had to make of the material before it.

6. The applicant has pointed out that, under section 417(2) of the Act, a council must deal with complaints as efficiently and quickly as practicable.[53] It is not our role to determine whether or not the Law Society has done so in this case.

   [53] Applicant’s written submissions filed on 7 May 2025 at [60]

7. Further, even if we were of the view that the delay by the Law Society in making its decision constituted a denial of procedural fairness, the applicant has not demonstrated how that delay would make our decision procedurally unfair.  We are not persuaded that the delay is so unfair and oppressive to the applicant as to justify a dismissal of the complaint.[54]

   [54] Herron v McGregor (1986) 6 NSWLR 246 at 258

8. For these reasons, we do not accept that the time taken by the Law Society to make its decision has any bearing, or any significant bearing, on our consideration of what is the correct or preferable decision.

   Abuse of process

9. The applicant alleges that the complainant’s intention in filing the complaint was not to ventilate some legitimate grievance but was rather “to escape from paying fees which had been properly incurred on her instructions.”[55] She says that the complainant’s attempt to use the statutory complaint process for the improper purpose of escaping her lawfully incurred debt constituted an abuse of process.[56] In support of her submission that the institution of proceedings for an improper purpose is an abuse of process, the applicant relies upon Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 and Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34.[57]

   [55] Applicant’s written submissions filed on 7 May 2025 at [57]

   [56] Applicant’s written submissions filed on 7 May 2025 at [57]

   [57] Applicant’s written submissions filed on 7 May 2025 at [52], [58]

10. The applicant submits that the Law Society:

    is required to make an assessment of whether ACAT is likely to make a finding that the conduct complained of amounts to unsatisfactory professional conduct, or professional misconduct. Where a complaint amounts to an abuse of process, any proceeding brought to seek a finding of unsatisfactory professional conduct or professional misconduct would be struck out. Accordingly, the mechanism for the Respondent to deal with a complaint which constitutes an abuse of process is to dismiss it under section 412. That is what should have happened here.[58]

    [58] Applicant’s written submissions filed on 7 May 2025 at [59]

11. We do not consider that the concept of an abuse of process applies to the making of a complaint under the Act. Courts have an inherent jurisdiction to dismiss or stay any process which is an abuse of the process of the court.[59] However, the making of a disciplinary complaint under the Act is subject to different principles.

    [59] Jago v District Court of NSW (1989) 168 CLR 23 at 71; [1989] HCA 46; Williams v Spautz (1992) 174 CLR 509 at 518; [1992] HCA 34

12. Any person may make a complaint under the Act, and a “complaint that is properly made must be dealt with in accordance with” Chapter 4.[60] For a complaint to be “properly made,” it must be about conduct to which Chapter 4 applies.[61] That includes conduct of an Australian legal practitioner occurring in the ACT.[62]

    [60] Act, s 393(3)

    [61] Act, s 393(1)

    [62] Act, s 390(1), 391(1)

13. The relevant council may dismiss a complaint in certain circumstances, including if the complaint is vexatious, misconceived, frivolous or lacking in substance or if the conduct complained about has been the subject of a previous complaint that has been dismissed.[63] The legislature’s approach is not to require a council to consider whether a complaint is an abuse of process, but rather to give the council discretionary powers to dismiss complaints in certain circumstances. Those circumstances might overlap, to some extent, with matters which would constitute an abuse of process in court proceedings. However, the legal principles are conceptually distinct.

    [63] Act, s 399(1)(b) and (d)

14. When construing provisions of Chapter 4 of the Act, it is relevant to consider the purpose of that Chapter, and of the Act generally. As the Court of Appeal (Mossop, Baker and Taylor JJ) observed in Legal Practitioner v Law Society of the ACT [2024] ACTCA 17 at [63]-[64]:

    63․ One of the two express objects of the LP Act is “to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally”: s 6(a). That object is largely repeated in relation to complaints and discipline in s 384(a). The other objects in s 384 emphasise professional honesty and competence, having a scheme for complaints and allowing people who are not lawyers to participate in that scheme.

    64․ The scheme of Ch 4 is to empower relevant councils to take disciplinary action against lawyers arising from complaints made in relation to their conduct. There is nothing in the purpose of the Act or the text of Ch 4 which indicates any particular but unstated solicitude for the interests of lawyers who are the subject of complaints.

15. A construction of the Act which required a council to have regard to whether the complaint was an abuse of process, and to dismiss any complaint brought for an improper purpose,[64] would not further the purposes of the Act generally or the purposes of Chapter 4 in particular. If the complaint raised a serious issue about a legal practitioner’s honesty or competence, for example, there would be a public interest in the council investigating it, irrespective of the purpose for which the complaint was brought. That might explain why a council has a discretion to dismiss a vexatious complaint but is not required to do so.[65] The complaint may be made vexatiously, but nevertheless identify a serious conduct issue.

    [64] See Applicant’s written submissions filed on 7 May 2025 at [59]

    [65] Act, s 399(1)(b)

16. We have considered whether the basis on which the applicant contends that the complaint was an abuse of process is relevant to the decision we are required to make on the merits.

17. The applicant’s contention is that the Client did not intend to ventilate a legitimate grievance, but rather wanted to escape paying fees which had been properly incurred on her instructions.[66] In support of this contention, the applicant submits:

    (a)The Client made the allegation of overcharging before seeing the final invoice;[67]

    (b)The complainant’s email to the applicant (provided with the complaint), saying that the applicant’s and Counsel’s fees should be “cut into a third of the cost” because they “were outside court for one day or less,” instead of the listed three hearing days, was “an extraordinary attempt to escape from the clear provisions of the costs agreement”;[68]

    (c)The Client stated in her complaint that she would like financial compensation but did not explain any basis for this;[69]

    (d)The Client stated in the complaint that the applicant “wants probably up to 100k and I am unable to pay her anymore” but the allegation that the applicant wanted $100,000 was fanciful.[70]

    [66] Applicant’s written submissions filed on 7 May 2025 at [57]

    [67] Applicant’s written submissions filed on 7 May 2025 at [53]

    [68] Applicant’s written submissions filed on 7 May 2025 at [54]

    [69] Applicant’s written submissions filed on 7 May 2025 at [55]

    [70] Applicant’s written submissions filed on 7 May 2025 at [56]

18. We consider, contrary to the applicant’s submission, that, as far as can be discerned from the documentary material, the Client intended to ventilate a legitimate grievance, or at least a grievance which appeared to her to be legitimate. She made the complaint about four months after the matter had settled, at which time she had still not received an invoice for the costs of the applicant’s professional time. Her view that the hearing costs should be cut to a third, because the estimate of $22,000 to counsel and $33,000 to the applicant was based on three days hearing, is not unreasonable. We understand that the applicant did, in fact, only charge for one day of hearing. The complainant’s apparent lack of understanding of the costs agreement, as a lay person, is not surprising. The Client stated in the complaint that she was “a solo single mum with three children” and a causal employee at a school who “struggle[d] with costs.” The $43,000 she had already paid was likely a very large amount for her, irrespective of whether those charges were objectively reasonable. She said she had had to get a loan to obtain that amount of money. The Client plainly anticipated that the applicant would be charging her “another $35,000 or more,” probably because of the applicant’s estimate in January 2023 that the further solicitor’s costs would be $33,000 and that the valuer’s fees would be $2,177.50. The complainant’s guess that the total amount of costs would be about $100,000 might have reflected a perception that legal fees tend to exceed solicitors’ estimates.

19. When considering whether the grievance was legitimate, it is also important to note that the complaint was not just about costs. It was also that the applicant “always shouts and screams at me and stresses me on the phone.” The Law Society apparently found that this aspect of the complaint was without merit. However, the Law Society did not take any steps to investigate this, other than asking the applicant for her response. There is nothing before us which indicates that there was no reasonable basis for the allegation.

20. In any event, even if the complaint was made solely or partly for the purpose of the Client avoiding paying fees, we do not see that as a reason not to consider the complaint on its merits. It concerns the conduct of an Australian legal practitioner in the ACT and makes allegations which are relevant to the question of whether the applicant engaged in unsatisfactory professional conduct.

21. As the Law Society submitted,[71] Chapter 4 of the Act is not confined to addressing grievances or complaints but serves broader purposes. Where a complaint brings to a council’s attention the conduct of a practitioner which appears to have breached professional standards, it is generally obliged to investigate it.[72] That is consistent with the protective objects of the legislative regime.

Ground 2: Jurisdictional error

[71] See respondent’s submissions dated 16 May 2025 at [4.5]-[4.6]

[72] Act, s 406

1. Ground 2 is that the Law Society’s decision was infected by jurisdictional error in three ways. Those ways are, in summary, that it was made in circumstances where the complaint constituted an abuse of process; that it purported to impose penalties for conduct beyond the scope of the complaint; and that it was made after an unreasonable delay. As the applicant acknowledges,[73] the particulars of this ground overlap with those of the first ground.

   [73] Applicant’s written submissions filed on 7 May 2025 at [31]

2. The Tribunal’s statutory task, when determining an appeal brought under section 416 of the Act, is not to consider whether the Law Society made a jurisdictional error. That would be the task of the Supreme Court, if the applicant sought judicial review of the Law Society’s decision. As explained above, the Tribunal’s task is to decide what is the correct or preferable decision. Mr Crispin, for the applicant, submitted that if we were to deal with the appeal as a merits review, we should take the applicant’s “criticisms of the way the society approached [the decision] as submissions about what the tribunal should not do in making its own decision.”[74]

   [74] Transcript dated 23 May 2025, page 60, lines 18-21

3. We have dealt with the applicant’s allegations of abuse of process and unreasonable delay above. The remaining issue raised in Ground 2 is whether the Law Society purported to impose penalties for conduct beyond the scope of the complaint. The question of whether the Law Society made this alleged error is relevant only insofar as we need to avoid making any similar error, if an error is established.

4. The first limb of the applicant’s argument is that the Law Society relied upon her conduct as recorded in a 2015 decision of ACAT, being conduct which occurred in 2011. She submits that conduct findings in 2011 cannot rationally influence a decision to take action under section 413 made at the close of 2024.[75]

   [75] Applicant’s written submissions filed on 7 May 2025 at [16]

5. The Law Society’s statement of reasons demonstrates that it considered the 2015 decision for the limited purpose of considering whether the applicant “is generally competent and diligent” for the purposes of section 413(1)(c) of the Act. It found, “having regard to the time that has passed since the conduct the subject of” the ACAT decision, that the applicant “is generally competent and diligent.”[76] In other words, notwithstanding the adverse findings about the applicant’s conduct in 2011, the Law Society made a positive finding about her, being that she is generally competent and diligent.

   [76] Law Society’s statement of reasons provided pursuant to section 415(d) of the Act, for the decision made on 2 December 2024, at [96]

6. The Law Society’s consideration of the conduct findings in 2011 does not disclose any error. The applicant’s counsel, Mr Crispin, stated at the hearing that if the consideration of earlier conduct was confined to the assessment of whether the applicant is generally competent and diligent, he did not have an issue with that.[77]

   [77] Transcript dated 23 May 2025, page 60, lines 37 to 45

7. We have not taken into account the earlier ACAT decision about the applicant’s conduct in 2011 in deciding “to impose penalties,” as Mr Crispin put it, for reasons set out below.[78]

   [78] Transcript dated 23 May 2025, page 61, line 23

8. The second limb of the applicant’s argument is related to the subject matter of the complaint itself. Whilst the applicant accepted the complaint is “a classical allegation of overcharging, coupled with some assertions of rudeness”, she submitted the complaint is not properly characterised as being “that [the Client’s] costs agreement was not explained, nor is it a complaint that she did not receive an estimate until September 2022”.[79] The applicant argued that if that the Law Society “discovers” matters outside the scope of a complaint which it considers require action, those matters should be actioned using a different pathway in the Act.[80]

   [79] Applicant’s written submissions, dated 7 May 2025, para 48

   [80] Applicant’s written submissions, dated 7 May 2025, para 50

9. For the reasons below, we consider the Client’s complaint did include the applicant’s failure to provide a written costs estimate at the beginning of the matter and, accordingly, we do not need to consider this further.

What is the correct or preferable decision?

1. It follows that we need to determine what is the correct or preferable decision in the circumstances of this case.

2. The Law Society made a decision to take action under section 413(2) of the Act. We need to be satisfied of the matters set out in section 413(1)(b) to (d) before deciding whether it is open to us, as a matter of law, to make or affirm an order under section 413(2) of the Act. If so, we need to decide which order is, or orders are, preferable in the circumstances. As the Tribunal has power to “make any order it considers appropriate on the appeal,”[81] it is also open to us to dismiss the complaint under section 412 (and possibly also under section 399) or direct the Law Society to make an application to ACAT,[82] if the relevant statutory criteria are satisfied.

   Scope of the complaint

   [81] Act, s 416(3)

   [82] Act, s 410(1); Legal Practitioner 202021 v Council of the Law Society of the ACT [2021] ACAT 74 at [7]-[11]

3. The complaint raises a number of matters. One is overcharging. It is not in contention that that aspect of the complaint should be dismissed. The Law Society has not referred the matter for a costs assessment.[83] However, there is nothing in the complaint itself which raises a reasonable basis for considering that the applicant overcharged the Client and the material does not raise any concerns that this was the case.

   [83] See Act, s 409(1)

4. The complaint also raises allegations that the applicant was rude and that she screamed and shouted on the telephone and threatened the Client. The complaint refers to “verbal intimidation.” As mentioned above, the Tribunal has not been provided with any investigatory material of the Law Society which demonstrates the basis on which it decided that this aspect of the complaint was without substance. Mr Moujalli, for the Law Society, indicated at the hearing that this aspect of the complaint was dismissed on the basis of the applicant’s response to the complaint.[84] The Law Society does not now suggest that this aspect of the complaint should be upheld and there is nothing before us, other than the complaint itself, which would provide a basis for upholding these allegations.

   [84] Transcript dated 23 May 2025, page 78, lines 16-17

5. Another allegation made in the complaint is that the applicant:

   has not been clear from the beginning on what her final estimated charges could be but she sends me the bill after about one and a half years.

1. This aspect of the complaint is that the applicant has not provided the Client with a costs estimate, or a final costs estimate, at the beginning of the matter. This is not the focus of the complaint but it is an important part of it. It informs the other aspects of the complaint concerning the amount of the bills the Client had been given, or that she anticipated she would be given.

2. The applicant, when giving evidence, accepted that this allegation was part of the complaint. The respondent’s counsel, Mr Moujalli, had the following exchange with her at the hearing:

   MR MOUJALLI: ... you saw that [the Client] had said in her complaint that you were not clear from the beginning on what your final estimated charges could be. So you've told me, when you prepared your response, you were aware that that was one thing she was complaining about; that's correct?

   [THE APPLICANT]: That's correct.

3. When the presiding member pointed that sentence of the complaint out to the applicant’s counsel, Mr Crispin, at the hearing, he responded:[85]

   that was a very curious thing for [the Client] to say, because it's common ground that she knew what her future costs were going to be at the mediation in February of 2022. So, to the extent to which [the Client] is taken to be saying that she never knew what her legal costs were going to be, she is not being honest.

   [85] Transcript dated 23 May 2025, page 49, lines 37 to 41

4. When queried further about this, he said:

   She doesn’t say she wasn’t clear until X date. She’s attempting to portray an ongoing ambiguity at a time when that’s just not true.

5. We do not attribute to the Client’s words the same meaning the applicant’s counsel appears to give them. The complaint that the applicant “has not been clear from the beginning on what her final estimated charges could be” is consistent with the circumstance that the applicant provided the Client with a costs notice at a mediation in February 2022. Not being clear “from the beginning” does not necessarily mean that there has been a lack of clarity about costs until the very end. It may simply mean that there was a lack of clarity at the beginning (and for a significant amount of time after that).

6. The applicant contends that any conduct prior to 2022 was not within the scope of the complaint, because the Client wrote, in response to the question “When did the conduct occur?”, “From 2022 to date.” The printed words on the complaint form, following this question, indicate that the question on the form is asked for the purpose of deciding whether the complaint is out of time:

   If the conduct you are complaining about occurred more than three years ago, your complaint cannot be dealt with unless the Council of the ACT Law Society determines that:

   ·        It is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or

   ·        The complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.

7. We do not consider that the Client’s identification of the conduct as occurring from 2022 to date, on the complaint form, strictly limits the scope of the complaint to that period, when the complaint as a whole is considered. The complaint that the applicant “has not been clear from the beginning on what her final estimated charges could be” is plainly intended to refer to conduct at “the beginning” of the matter, in 2021. Construed fairly, the complaint includes this earlier conduct.

8. Accordingly, the Tribunal, standing in the Law Society’s shoes, is entitled to make a decision about how to deal with this aspect of the Client’s complaint, and is not required to confine itself to the period from January 2022 onwards.

9. The Client’s complaint extends to a range of other matters, such as poor time management, not getting back to the Client as soon as possible, ignoring emails and withholding documents from the Client. We do not have any material before us which supports those aspects of the complaint and it was not suggested by either party that we should make findings about those aspects.

10. We note that the Law Society considered in its statement of reasons dated 17 December 2024 that the applicant should have, but did not, advise the Client that Counsel’s costs agreement allowed her to charge a cancellation fee, and that she had breached various Conduct Rules in doing so, notwithstanding the fact that Counsel’s fees were ultimately reduced.[86] Again, there is limited material before us in relation to this aspect of the complaint. In its statement of reasons, the Law Society recognised that the Client had been provided with a copy of Counsel’s costs agreement, which was “only” two pages long and that the Client had the opportunity to raise any questions or concerns about it.[87] It decided, however, that there was no reasonable likelihood the applicant would be found guilty by ACAT of unsatisfactory professional conduct or professional misconduct in respect of this matter, within section 412(1)(a) of the Act, so decided not to take any action in respect of it.

    [86] At [77]-[78]

    [87] At [83]

11. The Law Society did not invite the Tribunal to consider whether the applicant’s failure to advise the Client about Counsel’s costs agreement could give rise to disciplinary action, either considered in isolation or considered together with the failure to comply with her costs disclosure obligations. Nor did it make any submissions about any aspect of the complaint other than the costs disclosure aspect. Both parties appeared to consider that the only issue before the Tribunal concerned the applicant’s failure to provide the Client with the required costs disclosure.

12. It would be procedurally unfair for the Tribunal to make any adverse findings against the applicant in respect of the aspects of the Complaint which were not the subject of submissions by the Law Society and we have not done so. There is a question, however, as to whether our task on an appeal is to consider the entire complaint giving rise to disciplinary action, and to review the Law Society’s decision in relation to that complaint as a whole, or whether our role is more limited.

13. The application before us is an application for a merits review of the Law Society’s decision to “take action under s 413 in relation to practitioner.”[88] On one view, we are confined to considering the matter which gave rise to the Law Society’s decision to take action and the other aspects of the complaint which were implicitly dismissed by the Law Society are not before us. On another view, our role is to decide what the correct or preferable decision on the basis of all of the material which was before the Law Society and on the basis of the complaint considered as a whole.

    [88] Act, s 416, Table 416, item 3

14. It would have been desirable for the Law Society to provide the Tribunal with all of the material before it and to identify that it had done so, so that the Tribunal could consider what course it was entitled to take and what course was most appropriate. As that did not occur, we have proceeded to consider only the costs disclosure allegations which formed the basis for disciplinary action.

    Findings as to costs disclosure

15. There is no dispute that the applicant failed to comply with her obligation under section 269 of the Act to make a costs disclosure to the Client. She was obliged to disclose “an estimate of the total legal costs, if reasonably practicable or, if it is not reasonably practicable to estimate the total legal costs, a range of estimates of the total legal costs and an explanation of the major variables that will affect the working out of the costs.”[89] Whilst the applicant sent the client a proposed costs agreement and costs disclosure statement on 29 July 2021, she did not provide an estimate of the total legal costs or a range of estimates of such costs at that time.

    [89] Act, s 269(1)(d)

16. The applicant’s law practice was obliged to make this disclosure “in writing before, or as soon as practicable after, the law practice is retained in the matter.”[90]

    [90] Act, s 271(1)

17. We find that it was practicable for the applicant to provide an estimate of total legal costs, or a range of estimates of the total legal costs and an explanation of the major variables that would affect the working out of the costs, shortly after she was retained in the Client’s matter, and in any event by 29 July 2021. Whilst we accept that the applicant was busy around this time attending to the Client’s matters, and that the Client’s “case was very complicated to start off with,”[91] the applicant’s first priority should have been to attend to her statutory obligations. She had provided the Client an oral estimate of total costs of $50,000, on her own evidence, and we are not persuaded that she could not have put that estimate in writing around that time, or otherwise identified a range of estimates of the total legal costs in writing with the required explanation.

    [91] Transcript dated 23 May 2025, page 23, line 42

18. The applicant accepted that, between July 2021 and February 2022, she knew that section 269 of the Act required her to disclose to a client an estimate of total legal costs if reasonably practicable, or if not reasonably practicable to estimate the total legal costs, and to disclose a range of estimates of total legal costs and an explanation of the major variables that will affect the working out of the costs.[92]She also accepted that she knew this had to be done in writing, before or as soon as practicable after she was retained.[93]

    [92] Transcript dated 23 May 2025, page 19, lines 21 to 29

    [93] Transcript dated 23 May 2025, page 19, line 46 to page 20, line 10

19. Whilst she may have made oral costs disclosures, as she states, this is not what the Act requires.

20. There was a factual issue as to whether the applicant had provided the Client with a Family Court costs notice at a mediation in February 2022. The evidence of the Clerk, employed at the relevant time as a clerk in the applicant’s firm, is that he prepared a costs notice for the Client on the applicant’s directions. His evidence was that the estimate of costs, if the matter proceeded to a final hearing, was $50,000 plus Counsel’s fees. He gave evidence that he had since been able to locate the costs notice in hard copy or on the computer.[94]

    [94] The Clerk’s Statement, filed on 3 April 2025, at [5] to [6]

21. The applicant also gave evidence that the Clerk prepared the costs notice, on her directions, and that, on the day of the mediation, being 9 February 2022, she handed a copy of the costs notice to the Client.[95] Her evidence is that she has been unable to locate a copy of the costs notice on her computer system or to locate a hard copy on the file.

    [95] Applicant’s statement, filed on 3 April 2025, at [28]-[29]

22. The applicant accepted, when under cross-examination, that she had not referred in her response to the Law Society to the costs notice given to the Client in February 2022. She explained that she had not referred to it because it was “a Family Court costs notice, as opposed to a costs disclosure, costs agreement.”[96]

    [96] Transcript dated 23 May 2025, page 26, line 33 to page 27, line 10

23. We accept the evidence of the applicant and the Clerk that the applicant gave the Client a written costs notice at the mediation of 9 February 2022. The Clerk was not required for cross examination. It is unlikely that the Family Court would have held the mediation without the costs notice, as Mr Crispin submitted.[97] Further, after the applicant gave her evidence, the Law Society indicated through its counsel that it did not dispute that the applicant had given the Client the costs notice.[98]

What action should the Tribunal take?

[97] Transcript dated 23 May 2025, page 58, lines 14-18

[98] Transcript dated 23 May 2025, page 58, line 20

1. The relevant conduct, then, is the applicant’s failure to provide the Client with a written costs disclosure, in accordance with the Act, between July 2021 and February 2022. The circumstance that the applicant breached her obligations under 269 of the Act does not appear to be disputed.[99] We find that she did fail to comply with her obligations under section 269(1)(d) in this period.

   [99] See Transcript dated 23 May 2025, page 78 at lines 35-37

2. We are not satisfied that “there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of … unsatisfactory professional conduct” within section 412(1)(a) of the Act, such that we could dismiss the complaint. The Tribunal has found, in other proceedings, that the failure to provide a costs disclosure in accordance with the Act constituted unsatisfactory professional conduct.[100] Taking that decision into account, as well as the mandatory nature of the obligation to comply with sections 269 and 271 of the Act, and the importance of the costs disclosure provisions of the Act to the solicitor-client relationship, we find that there is a reasonable likelihood that the applicant would be found guilty by the ACAT (differently constituted) of unsatisfactory professional conduct, but not professional misconduct, within section 413(1)(b) of the Act.

   [100] Council of the Law Society of the ACT v Legal Practitioner M1(Mona Moutrage) [2015] ACAT 78

3. There is no dispute that the Law Society completed the investigation into the complaint, within section 413(1)(a). We are also satisfied, having regard to the Law Society’s concession,[101] that the applicant is generally competent and diligent, within section 413(1)(c) of the Act. We are satisfied that the applicant’s unsatisfactory professional conduct can be dealt with adequately under section 413, within section 413(1)(d). Accordingly, we have power to consider whether to make orders under section 413(2) of the Act and what orders to make.

   [101] Transcript dated 23 May 2025, page 79 at lines 46-47

4. The Law Society submitted that the Tribunal should confirm its decision as the correct or preferable decision, save that the fine the applicant is to pay should be increased to $10,000.[102] It put the applicant on notice that it would be seeking such an order by letter dated 11 March 2025. In that letter, the Law Society stated that it sought “a higher fine to compensate the Council for the fees it will incur in relation to this appeal.” The Law Society relied upon the decision in Legal Practitioner 201823 (Eunice Ryan) v Council of the Law Society of the Australian Capital Territory [2019] ACAT 97 at [13] in support of its contention that the Tribunal has power to make such an order. At the hearing, Mr Moujalli explained that section 416(4) provides that the Tribunal may make an order mentioned in section 425(3) to (5), and that section 425(5)(a), read with section 427(1), permits the Tribunal to make an order that a practitioner pay a fine of up to $10,000.[103]

   [102] Respondent’s submissions dated 16 May 2025 at [8.12]

   [103] Transcript dated 23 May 2025, page 84, lines 14 to 40

5. The applicant submitted, in her written submissions in reply and at the hearing, that to use the power to impose a fine to compensate the Law Society for its costs would be to use the power for an improper purpose.[104] The applicant pointed out that the Act does not give the Tribunal power, when considering an appeal under section 416, to make a costs order.

   [104] Applicant’s written submissions in reply dated 20 May 2025 at [21]-[23] and Transcript dated 23 May 2025, page 63, lines 19-28 and page 64, lines 3-5

6. Mr Moujalli conceded at the hearing that the applicant’s point was valid and that there should not be a higher fine to compensate the respondent for its costs liability. We agree. However, he submitted that there should be a higher fine so that the decision of the tribunal serves a deterrent effect to the profession generally, to emphasise the importance of compliance with the mandatory costs disclosure provisions of the Act.[105] Mr Moujalli also submitted that a higher fine was appropriate because this was not the first time that the applicant had failed to comply with costs disclosure under the Act,[106] and because the applicant did not indicate any insight or contrition in relation to her conduct.[107]

   [105] Transcript dated 23 May 2025, page 83, lines 44 to 47 and page 85, lines 11 to 13

   [106] Transcript dated 23 May 2025, page 85, lines 17 to 19

   [107] Transcript dated 23 May 2025, page 86, lines 4 to 6

7. We are not satisfied that the applicant should be ordered to pay a higher fine. The legislature has indicated that the deterrence, by way of a fine, is to be limited to $1,500 when the Law Society makes a summary decision. Whilst it is open to the Tribunal to order a higher fine on appeal, no good reason has been demonstrated to do so in this case. The applicant did not show much contrition at the hearing, but nor had she done so at the time the Law Society imposed its fine of $1,500. The applicant did show some limited insight, in that she indicated that she now understands that she contravened the relevant costs disclosure provisions. Whilst the applicant failed to comply with the costs disclosure provisions of the Act on a previous occasion, in 2011, a fine has previously been imposed by the Law Society in relation to that failure and it is about 14 years ago. We have also taken into account, when deciding not to increase the fine, the Law Society’s concession that the applicant is generally competent and diligent, which it did not ask us to disturb.

8. To order the applicant to pay a higher fine would have the likely effect, in the circumstances of this case, of deterring practitioners from appealing to the Tribunal under section 416 against a fine. That is not a desirable outcome.

9. Given our view that we would not impose a higher fine if we had power to do so, we do not need to consider the applicant’s submission that the Tribunal does not have power to do so, because (the applicant submits) the orders in section 427 are predicated upon a finding of unsatisfactory professional conduct having been made.[108]

   [108] Transcript dated 23 May 2025, page 87, lines 24 to 31

10. In our view, the respondent’s decisions to publicly reprimand the applicant, to order her to pay a fine of $1500 and to undertake a course in costs disclosure within 6 months, are the correct and preferable decisions. Those orders serve the purpose of both specific and general deterrence in relation to non-compliance with the costs disclosure provisions in the Act. They also promote and enforce the professional standards and competence of practitioners, by requiring the applicant to complete training in a relevant area.

Form of Orders

1. The Law Society’s decision under section 413 of the Act requires the applicant to pay money and undertake the course within a period referable to the Law Society’s decision. Orders may need to be made varying those directions such that the time for compliance commences at the date of the Tribunal’s decision. We will invite the parties to make submissions at a short hearing as to the appropriate form of orders.

2. The parties indicated that they may wish to be heard as to whether the interim non-publication and anonymisation orders, made by the Tribunal, should be continued. We have made orders to allow submissions to be made on that issue at the further hearing.

ORDER

The Tribunal orders that:

1. The respondent’s decision to publicly reprimand the applicant is confirmed.

2. The matter is listed for a hearing on 7 October 2025 at 10am for one hour, for the parties to make submissions about:

   (a)the form of the orders the Tribunal should make;

   (b)whether the interim non-publication and anonymisation orders made in this matter should be continued, in the form of final orders, or revoked.

   ………………………………..

Presidential Member J Lucy

For and on behalf of the Tribunal

Date of hearing:	23 May 2025
Counsel for the Applicant:	Mr T Crispin
Solicitors for the Applicant:	Ray Swift Moutrage and Associates
Counsel for the Respondent:	Mr D Moujalli
Solicitors for the Respondent:	Thomson Geer