Bechara v Legal Services Commissioner - [2011] HCATrans 156

[2011] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S25 of 2011

B e t w e e n -
MARIA BECHARA
Applicant
and
LEGAL SERVICES COMMISSIONER
Respondent
Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 2011, AT 12.11 PM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friends, MR P.W. NEIL, SC and MR P.D. DOYLE GRAY, for the applicant. (instructed by Bechara & Company Lawyers)

MS C.A. WEBSTER: If the Court pleases, I appear for the respondent. (instructed by Legal Services Commissioner (NSW))

GUMMOW J: Yes, Mr Jackson.

MR JACKSON: Your Honours, may I just say something about the base facts by way of introduction before going to the statutory provisions which ultimately affect the matter. Your Honours, the base facts are these. The applicant was solicitor for three plaintiffs. They were suing the same defendant. Their actions arose out of different circumstances in relation to the same premises. The applicant had a costs agreement with each. Its terms can be seen relevantly at page 73, paragraph 11, in the reasons for judgment of the Court of Appeal and your Honours will see various rates set out there. The agreements were conditional in the sense that if a plaintiff failed, the applicant received no costs in respect of that plaintiff.

Shortly before the actual trial, it was agreed that the matters, though not consolidated, would be heard together and that occurred with each plaintiff being successful. You will see that in paragraphs 12 and 13 on page 73. The applicant sent bills to her three clients, in each case billing at the agreed rate for each for the hearing. You will see that in paragraph 14 at page 73 and the party and party bill was prepared on the same basis. When the party and party bill was assessed, the costs assessor doing it wrote to the respondent, as appears at page 75, paragraph 17, suggesting that she may have engaged in deliberate charging of grossly excessive amounts. Now, there were offers made by the applicant to reduce her fees at a time before she was aware that there had been any such referral. You will see that in paragraphs 16 and 18 on pages 74 and 75.

Your Honours, the applicant was found guilty of professional misconduct for charging for that part of the case, that is, the part when the case was heard together, at the rates provided for in the costs agreement. She was reprimanded, fined $6,500 and ordered to pay the costs, a large sum. The essence of the Court of Appeal’s views, your Honours, was that in some way there was an obligation on a solicitor and own client basis to charge only one fee and apportion it or to charge one fee but, in effect, increase it a bit because…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] HCATrans 156
Decision Date

CaseChat Overview and Summary

The case of *Bechara v Legal Services Commissioner* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Mr Bechara, had been found guilty of professional misconduct by the Legal Services Commissioner and subsequently by the NSW Civil and Administrative Tribunal. The misconduct related to his conduct as a solicitor in relation to a settlement of a workers' compensation claim.

The High Court was required to determine whether the Tribunal had erred in finding that Mr Bechara had engaged in professional misconduct. Specifically, the appeal raised questions about the interpretation and application of the *Legal Profession Act 2004* (NSW) and the relevant professional conduct rules concerning the duty of a solicitor to their client and the proper handling of trust money. The central issue was whether Mr Bechara's actions in relation to the settlement funds constituted a breach of his professional obligations.

Gummow and Heydon JJ found that the Tribunal had correctly applied the law to the facts. Their Honours reasoned that a solicitor's duty to a client includes acting with honesty and integrity, and that the proper management of trust funds is a fundamental aspect of this duty. They held that Mr Bechara's conduct, which involved the unauthorised use of settlement funds for purposes other than those for which they were held in trust, amounted to a serious breach of his professional obligations, thereby constituting professional misconduct. The appeal was dismissed.

Orders