Boland v Legal Profession Board of Tasmania (No 2)
[2017] TASSC 57
•26 September 2017
[2017] TASSC 57
COURT: SUPREME COURT OF TASMANIA
CITATION: Boland v Legal Profession Board of Tasmania (No 2) [2017] TASSC 57
PARTIES: BOLAND, Christopher John
v
BOXALL, Andrea
LEGAL PROFESSION BOARD OF TASMANIA
FILE NO: 274/2015
DELIVERED ON: 26 September 2017
DELIVERED AT: Hobart
HEARING DATE: 19 September 2017
JUDGMENT OF: Tennent J
REPRESENTATION:
Counsel:
Applicant: A Morris QC
First Respondent: NA
Second Respondent: K Cuthbertson
Solicitors:
Applicant: Chris Boland Lawyers Pty Ltd
First Respondent: NA
Second Respondent: Tremayne Fay & Rheinberger
Judgment Number: [2017] TASSC 57
Number of paragraphs: 56
Serial No 57/2017
File No 274/2015
CHRISTOPHER JOHN BOLAND v LEGAL PROFESSION BOARD OF
TASMANIA (No 2)
REASONS FOR JUDGMENT TENNENT J
26 September 2017
On 12 December 2016, I delivered reasons in respect of an application by Christopher John Boland, a legal practitioner (the applicant), made pursuant to the Legal Profession Act 2007 (the Act), s 458: Boland v Legal Profession Board of Tasmania [2016] TASSC 63 (the first decision).
The reason for that application was that the Legal Profession Board of Tasmania (the Board) had conducted a hearing in relation to a complaint by a former client of the applicant. The complaint before the Board contained 12 particulars. The Board made findings in relation to particulars 1 to 11 of those particulars, finding that particular 12 was a "catch-all" particular covered by others. The Board made findings adverse to the applicant in respect of particulars 1, 2, 3, 4, 8, 9, 10 and 11. On 30 March 2015, the Board then, pursuant to the Act, s 454(2), made determinations on a global basis in respect of the conduct dealt with by the particulars found proved. Those determinations were as follows:
"1A Determination under s 454(2)(a) of the Act that the Practitioner be reprimanded.
2A Determination under s 454(2)(e) of the Act that the Practitioner repay fees paid by the Complainant in the sum of $11,300.
3A Determination under s 454(2)(m) of the Act that the Practitioner pay to the Board the fixed sum of $30,000 of the costs incurred by the Board in investigating and hearing the complaint."
Prior to the hearing of the application before me, an order staying the determinations was made which remains in force.
Section 458 permitted the applicant to apply to this Court to have "the matter to which the determination relates" determined by this Court. By his application he sought such a determination, although he specifically confined his application to the conduct the subject of particulars 1, 2, 3, 4, 8, 10 and 11. He did not challenge the finding of the Board relating to particular 9.
In my reasons, I concluded that the factual basis for all of the particulars referred to me was made out. I also made specific findings that, in relation to the matters covered by particulars 1, 2, 3, 4, 11.1 and 11.2, the conduct the subject of the complaints amounted to unsatisfactory professional conduct. As to particulars 8, 10 and 11.3, I made no individual specific finding categorising the conduct. However at [131] and [132] of my reasons, I said:
"131 I have in relation to most of the particulars I have dealt with made specific findings that the conduct of the applicant amounts to unsatisfactory professional conduct. As to others where that specific finding has not been made, but I have concluded that the factual basis for the complaint has been made out, I have considered the conduct complained of in light of the whole of the applicant's conduct found proved in these reasons. I am satisfied that, in that context, all complaints found proved give rise to a conclusion that the applicant's conduct amounted to unsatisfactory professional conduct.
132 Counsel indicated at the hearing that they only at this stage sought findings of the nature set out above and would seek to address the Court further as to other orders that might be made. Counsel will have liberty to apply to make further submissions as to how this matter is to be disposed of."
No application was ever made for the matter to be finalised. Instead, the applicant filed a notice of appeal in respect of the December 2016 reasons. That appeal was in due course listed for hearing. However, on 13 September 2017, in the course of a directions hearing in relation to that appeal, a judge of the Court pointed out to the parties that no orders had ever been made from which an appeal could in fact be instituted. As a consequence, the parties sought an urgent hearing before me for the purpose of making submissions so that final orders could be made consistent with my reasons.
Before dealing with those submissions, I raised with counsel the status of the determinations of the Board dated 30 March 2015 given my conclusions, and given that there was no challenge to the Board's findings in respect of particular 9, and the powers of this Court consequent upon a hearing pursuant to the Act, s 458.
The relevant legislative provisions
Section 458(3) provided that any hearing pursuant to s 458(1) was to be by way of rehearing. The nature of such a rehearing was dealt with by Blow CJ in Boland v Boxall [2016] TASSC 30 (a decision to which I referred at [7] of the first decision).
The hearing before me proceeded on the basis determined by the Chief Justice. Because however the hearing before me did not proceed to a consideration of what orders I should make to give effect to my findings, the question of the powers of the Court to make orders consequent upon a hearing by reference to s 458 was not explored. On this resumed hearing, I sought submissions from both counsel as to what powers this Court had, and, in particular, what the Court should do in relation to particular 9 and the determinations already made by the Board.
Submissions of counsel for the Board as to the Court's powers
Counsel for the Board accepted that the Act was somewhat unclear about this issue but ultimately submitted that, in the circumstances of this case, it would be appropriate to:
- permanently stay the determinations made by the Board,
- put any consideration of particular 9 to one side, and
- make fresh determinations pursuant to the Act, s 454(2), in respect of the particulars to which the application specifically related.
It was accepted that, while this was a somewhat unsatisfactory way to deal with the matter, it was an inevitable inference to be drawn that the Act intended that this Court should have the same powers as the Board did under s 454 when dealing with an application under s 458.
Submissions of counsel for the applicant as to the Court's powers
Counsel for the applicant submitted that it was unnecessary for the Court to deal with particular 9 and the Board's determinations in the manner suggested by counsel for the Board because of the wording of s 458. The determinations made by the Board related to all particulars where adverse findings were made, this Court was determining the matter to which those determinations related, and the applicant did not challenge any finding in relation to particular 9. This Court could in those circumstances proceed to consider what determinations it should make pursuant to s 454(2) consequent upon my findings as to the particulars referred to me and the Board's finding in relation to particular 9. Any determinations I made would "supersede" those made by the Board.
Discussion of the Court's powers
Neither of counsel's submissions, in my view, sit well with the provisions of the Act as they relate to s 458. However, as I said during the course of submissions, common sense dictates that any hearing pursuant to s 458 should result in the Court having the power to make fresh determinations which override those made by the Board whether they be by way of replacement by similar determinations or the quashing of the Board's determinations.
In practical terms, neither party sought that I do other than, in light of my findings as to the particulars that I dealt with and the Board's findings in relation to particular 9, make fresh determinations which would cover the field and override those already made. In those circumstances, that is the way in which I will proceed.
Determinations sought by the parties
Counsel for the Board sought in effect that I make determinations in the same form as those made by the Board. That is, there should be a determination that the applicant be reprimanded by reference to s 454(2)(a), there should be a determination pursuant to s 454(2)(e) requiring the applicant to repay an amount relating to fees paid by Ms Boxall, and there should be a determination pursuant to s 454(2)(m) that the applicant pay to the Board an amount in respect of costs incurred by the Board in investigating and hearing the complaint of Ms Boxall. Counsel also submitted that it was appropriate the determinations be made on a global basis as the Board had done.
Counsel for the applicant submitted generally that I should, perhaps for the benefit of the Full Court, indicate that for example any determination made as to a reprimand was made by reference to certain identified conduct rather than globally. Counsel for the applicant otherwise made no submissions as to the appropriateness or otherwise of a determination by way of reprimand, but opposed any determination at all by reference to s 454(2)(e) and (m).
Discussion
Counsel for the Board submitted by reference to the Act, s 417, that the purposes of the complaints and discipline provisions of the Act were to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction 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, to promote and enforce the professional standards, competence and honesty of the legal profession, and to provide a means of redress for complaints about lawyers.
She also submitted that any decision about an appropriate determination or determinations should be made against the background that the applicant was admitted to practice in 1983 and had not since then been the subject of any other disciplinary action. Apart from that information about the applicant's admission history, I received no other information from either his counsel or counsel for the Board about any other matters of a personal nature which might be considered relevant to the nature of any determinations to be made.
Counsel for the Board also submitted that, in this particular case, any determinations made should serve as a reminder to the applicant and other members of the profession of the need to act professionally when dealing with their clients.
As to the applicant's conduct which gave rise to the adverse findings against him, the Court is not dealing with just one act. It is dealing with a course of conduct which encompassed different types of conduct over a period of time. That course of conduct, in my view, fell far short of the standard of competence and diligence that a member of the public would be entitled to expect from a reasonably competent practitioner.
In summary, the applicant's course of conduct began with the preparation of a set of proposed orders which he drafted for his client and intended would be converted into orders of the Federal Magistrates Court or Family Court of Australia. Those proposed orders were drafted in such a way that they could not give effect to what the applicant knew his client wanted. Knowing that to be the case, the applicant allowed the proposed orders to be converted into actual orders of a court. He did not thereby protect his client's interests.
The applicant, notwithstanding the proposed orders he drafted had been formalised as orders of a court, continued to argue for an interpretation of the orders which was inconsistent with the orders as made on their face, and which he knew the other party to them did not and would not accept. One order by which the applicant's client was bound required her to sign a contract to sell a family home. The applicant advised her not to do so, placing her in breach of an order of a court and leaving her subject to enforcement proceedings. The applicant engaged counsel when his retainer did not allow him to do so without consulting the client, and failed to advise the client of fees he was charging at increased rates. As a result of counsel's advice, further court proceedings were required to "undo" the problem the applicant had created by the proposed orders he drafted. The applicant charged the client fees for that work.
The course of conduct the applicant engaged in revealed a lack of insight into the behaviour which should be expected of a reasonably competent practitioner. The process the client was involved in for the purpose of obtaining a property settlement was extended far beyond what it should have been as a result of the applicant's conduct.
In my view, it is not appropriate, because of the continuing course of conduct the applicant engaged in, to attempt to isolate those parts of the conduct complained of which might be considered more serious than others and thus might attract a particular determination. It is the cumulative effect of the applicant's conduct which gives rise to the need for a particular determination. A reprimand, in my view, is the only appropriate determination because it will demonstrate to the applicant the seriousness with which disciplinary authorities take the type of conduct he engaged in, and act as a warning to other practitioners.
Repayment of fees
This issue formed the basis of a large part of counsels' submissions. Counsel for the Board sought a determination pursuant to s 454(2)(e) that the applicant pay to Ms Boxall the sum of $11,300 as a repayment of part of the fees she had paid him. Counsel for the applicant submitted that no determination at all by reference to s 454(2)(e) should be made.
The submissions by counsel gave rise to the need to consider another issue. Prior to the hearing which resulted in the first decision, the applicant filed an interlocutory application supported by an affidavit that he swore. By that application, he sought to adduce fresh evidence before this Court in the form of certain documents. The material which the applicant sought to place before the Court was identified in his interlocutory application, the terms of which are set out at [9] of the first decision. Following discussions with counsel, it was determined the material would be taken in de bene esse, and that I would make a determination as to its admissibility as part of my ultimate decision. At [130] of the first decision, I determined as follows in relation to that material:
"130 I am satisfied in the context of the findings that I have made that the material sought to be introduced by the applicant by his interlocutory application is not relevant to the issues I have determined and would not have assisted the applicant. I have therefore not taken it into account. I have not made any determination as to whether it might or might not be 'fresh evidence'. As to whether it may be relevant to consequential orders, I will hear counsel further."
When the matter came back before me for the purpose of hearing submissions as to what ultimate determinations should be made, counsel for the applicant pursued an application that the documents be admitted into evidence unconditionally in respect of the issue of appropriate determinations. Counsel for the applicant submitted that the material had particular relevance to any possible determination by reference to s 454(2)(e). The application to have the material admitted was opposed by counsel for the Board, in the first instance, on the basis it was neither fresh nor new evidence, and secondly on the basis it was not relevant to the particular issue. Counsel for the Board relied on written submissions made at the time of the substantive hearing as to the question of whether the evidence sought to be adduced was fresh or new. Counsel for the applicant made no submissions at all relating to the issue of whether the material was fresh or new evidence. He focused in his submissions only on what he asserted was the relevance of the material. There was no application before me that any other fresh or new evidence be admitted, for example in the form of oral evidence of the applicant relating to the Magistrates Court proceedings.
The material sought to be relied on by the applicant is a claim filed in the Magistrates Court (Civil Division) by the applicant dated 3 August 2010, pursuant to which the applicant sought to recover from Ms Boxall fees and disbursements charged in invoice 4333 dated 18 May 2010. There were two defences to that claim filed on Ms Boxall's behalf and an amended claim. By that amended claim, the applicant sought in the alternative that he be paid for the services covered by the invoice on a quantum meruit basis. The final document was a consent order which finalised the proceedings.
There were no counterclaims or set-offs in either of the defences filed on Ms Boxall's behalf. There were however a number of matters raised relating to asserted overcharging, failure to advise of increased rates of charges, failure to obtain consent to brief counsel and other matters. There can be no dispute that in general terms some of the matters raised were matters which were the subject of Ms Boxall's complaint to the Board. The consent order gave effect to a compromise of the applicant's claim. It required Ms Boxall to pay $8,000 by way of legal costs and a disbursement of $2,750. The costs actually claimed pursuant to that invoice were $13,750. There is nothing on the face of the consent judgment which suggests it was other than a compromise of the particular invoice the subject of the proceedings.
Counsel for the applicant submitted that the Magistrates Court proceedings by reference to the counterclaims and set-offs (there were none specifically identified as such in the pleadings) raised by Ms Boxall represented a resolution of the whole of the applicant's claims against Ms Boxall for legal costs and a compromise of those claims. They were not simply a compromise of the claim by the applicant in respect of invoice 4333. He submitted that no further proceedings can in effect now be had to recover any part of fees paid by Ms Boxall to the applicant overall. In making this submission, counsel for the applicant relied on a decision of the High Court in Chamberlain v Commissioner of Taxation (1988) 164 CLR 502. There were in fact a series of cases involving the parties about the same underlying issue. What occurred was that the Commissioner of Taxation initiated proceedings against a Mr Chamberlain to recover tax asserted to be owed. Due to a clerical error, the documents filed on behalf of the Commissioner stated the amount claimed as a figure which was one tenth of the actual debt. Mr Chamberlain took advantage of the error and consented to judgment in the low amount. When the Commissioner became aware of the error, he commenced further proceedings to recover the balance. Those proceedings ultimately went to the High Court which determined that the second set of proceedings was founded on the same cause of action as the first, and the doctrine of res judicata prevented the Commissioner from recovering the extra amount. At 510, Deane, Toohey and Gaudron JJ said:
"The point of the present appeal is that the respondent brought an action against the appellant and recovered judgment against him. He obtained a judgment of the court in which the cause of action upon which he relied merged, thereby destroying its independent existence so long as that judgment stood. And, so long as that judgment stands, it is not competent for the respondent to bring further proceedings in respect of the same cause of action."
Counsel for the applicant submitted that the consent order made in the Magistrates Court, which compromised the proceedings between the applicant and Ms Boxall, brought to an end any dispute between the parties about legal costs and the Board could not, consistent with the decision in Chamberlain's case, seek any further fee repayment from the applicant.
There are therefore two issues to be considered. The first is whether the evidence sought to be relied upon by the applicant is fresh or new evidence and capable of being admitted before this Court. The second is, if indeed that material is admissible as fresh or new evidence, is it relevant evidence in respect of the matter counsel has identified?
Fresh or new evidence
The invoice the subject of the Magistrates Court proceedings and the consent order were before the Board during the proceedings before it as annexures to the affidavit of Robyn Alice Malcolm, an investigator with the Board, which affidavit was sworn 12 March 2013. The other documents the applicant sought to rely on were not. It is apparent from Ms Malcolm's affidavit that the existence of the compromise of invoice 4333 in those proceedings was a factor she considered.
In the course of proceedings before the Board, counsel assisting the Board in her opening took the members to a costs assessment by Mr Gavin Wood when dealing with particulars 11.2 and 11.3. Counsel said to the members of the Board:
"Now the rationale for accepting or excluding invoice 4333, is that you will see – and you probably read in the papers, that the practitioners entered into a compromise in relation to that particular invoice as a result of negotiations following the filing of a Magistrates Court claim with respect to seeking recovery of the costs in that invoice. So for the purposes of this hearing it's put on behalf of the complainant that it's quite proper to exclude that invoice from the allegation encompassed by particular 11.2. Is that understood, by – what's been put?
…
MS TAGLIERI: And I've taken some time to take the board through that, because it's necessary that there not be any doubling up of allegations in relation to the overcharging complaint and in a letter that my learned friend wrote he has raised some concern about making admissions about whether there has been overcharging because of the compromise that occurred in relation to invoice 4333. So I make that plain that for the purposes of the hearing before you, we do not seek to double up and we say that that invoice ought to be basically nought for the purposes of Mr Wood's evidence in support of the overcharging allegation.
CHAIRMAN: Yes, and it shouldn't be taken into account in determining whether or not there's overcharging."
Over the next few pages of the transcript of the proceedings before the Board, the issue of these overcharging claims and invoice 4333 was discussed between members of the Board, counsel assisting and then counsel for the applicant.
In the proceedings before the Board, after the Board made findings that the applicant had engaged in unsatisfactory professional conduct, both counsel assisting, and then counsel for the applicant, made submissions about the claim for a costs repayment. Counsel for the applicant raised the compromised account, asserted that the parties agreed to compromise claims and counterclaims they each had against the other in the Magistrates Court proceedings, and submitted that a determination by reference to s 454(2)(e) would undermine that compromise and would be contrary to public interest. Counsel for the applicant did not seek before the Board to adduce any of the documents that are now sought to be put before the Court, or indeed to lead any further evidence about the compromise.
The issue of whether evidence could be said to be fresh evidence has been dealt with by this Court in the context of appeals from decisions of disciplinary tribunals to this Court. It has been determined that further evidence should not be admitted unless it can be demonstrated that the evidence did not exist at the time of the initial hearing, and would not have been available despite the exercise of reasonable diligence, and that if the evidence had been available there was at least a firm chance that the result would have been different: Fernando v Medical Complaints Tribunal [2004] TASSC 130 per Crawford J at [62]–[77], and Evans J at [94]-[95].
In Medical Council of Tasmania v Lad [2007] TASSC 43, 16 Tas R 260, Blow J (as he then was), at [14]-[17] considered the admission of new evidence in relation to penalty. His Honour said:
"14 In criminal appeals, which are a species of appeals by way of rehearing, a distinction is drawn between 'fresh evidence' and 'new evidence'. That distinction was well explained by Steytler J in Mickelberg v R (2004) 29 WAR 13 at 129, in a part of his reasons with which Malcolm CJ and Murray J expressed agreement, as follows:
'"Fresh" evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.'
15 In the proceedings before the Tribunal, counsel assisting the Tribunal was aware of the decision of the South Australian Full Court in Craig, was alert to the possibility of a submission that the respondent's patients would have difficulty finding other doctors if he were removed from practice, and had been supplied with the references that included suggestions of a relevant shortage of general practitioners. In those circumstances, I think it must have been reasonably foreseeable on his part that it would be asserted to the Tribunal, and perhaps accepted by the Tribunal, that a shortage of general practitioners affected the Kingston area and was likely to result in the respondent's patients having great difficulty in finding other general practitioners if he were to cease practice. There is no reason to think that the evidence of Dr Williams or Mr Barns would not have been available to the appellant or Mr Jackson when the matter was before the Tribunal. When the question of penalty was before the Tribunal, it cannot be said that the evidence of those witnesses did not exist, nor that it could not with reasonable diligence have been discovered. It follows that their evidence is not 'fresh evidence' of the type that is traditionally received in appeals by way of rehearing.
16 It is therefore necessary to consider the alternative submission of counsel for the appellant, based on the proposition that the Tribunal was misled as to a shortage of general practitioners. New evidence, as distinct from fresh evidence, is admitted, when appropriate, in criminal appeals because of the statutory requirement in the standard form of criminal appeal legislation for an appeal to be allowed when there has been a miscarriage of justice. See, for example, the Criminal Code, s402(1). No such statutory provision is applicable in this case. No doubt there are some situations in which this Court may admit new evidence on the hearing of an appeal from the Tribunal, and allow that appeal as a result. For example, I think it would be appropriate to take such a course if there were evidence establishing that, in the course of sentencing submissions, false information had been fraudulently presented to the Tribunal, and had made a significant difference to the penalties imposed. It is clear that new evidence may be received, and an appeal allowed, when such a situation occurs during sentencing proceedings in a criminal court: R v Beldan [1986] 2 Qd R 179. Counsel for the appellant relied on that case.
17 However I think a distinction needs to be drawn between incorrect information that is presented to a court or tribunal as a result of fraud, dishonesty, or bad faith, and incorrect information that is presented to a court or tribunal in good faith, without any fraud or dishonesty. In this case there has been no suggestion of fraud, dishonesty or bad faith. In the absence of any such factor, when counsel for a party to proceedings before a statutory tribunal provides that tribunal with evidence or information relevant to a matter in issue in the proceedings, or relevant to a matter that may be placed in issue in the proceedings, that is an ordinary part of the quasi-judicial decision-making process, even if that information happens to be incorrect. In this case, the information presented to the Tribunal as to a shortage of general practitioners, and as to the consequences of that shortage, may well have been incorrect, at least in part. The very nature of the disputed information is that it involved value judgments as to matters on which minds might differ, and predictions as to the future. How scarce do general practitioners have to be for there to be a shortage of them? How difficult does the replacement of a suspended general practitioner have to be for such a difficulty to be regarded as unacceptable, or even significant? It was open to the appellant or to Mr Jackson to dispute assertions in the material placed before the Tribunal, and to dispute the assertions made to the Tribunal on behalf of the respondent. Seeking to do that now, on the basis of evidence that could have been adduced when the matter was before the Tribunal, is tantamount to seeking a hearing de novo in relation to an issue that was before the Tribunal. Such a course is not appropriate as the type of appeal provided for in the Act is not an appeal by way of hearing de novo, but an appeal by way of rehearing in the old technical sense."
In the present case, the evidence sought to be relied upon cannot be considered to be fresh evidence. It was available at the time of the hearing before the Board, was in part put before the Board, and was the subject of discussion before the Board. No attempt was made, despite the opportunity to do so, to put the material before the Board that was not already before it.
There can be no suggestion that incorrect information was presented to the Board. The Board knew invoice 4333 had been compromised in Magistrates Court proceedings, the defences filed, while they made allegations relevant to matters dealt with before the Board, were not raised by way of counterclaim or set-off, and it was not apparent on the face of the material that the compromise was anything other than a compromise of invoice 4333.
The material sought to be adduced cannot, in the circumstances, be considered either fresh or new evidence which should be admitted before this Court.
The submissions by counsel for the applicant by reference to Chamberlain's case
My conclusion in the previous paragraph disposes of the issue as to whether this further material should be admitted. However, for the sake of completeness, I will deal with counsel's argument by reference to Chamberlain's case. I do not in any way cavil with the decision of the High Court in that matter. It is the application of it to the present case which is problematic.
The Chamberlain proceedings were at all times a dispute between the same two parties about a particular debt, namely a claim by the Commissioner of Taxation that Mr Chamberlain owed about $250,000 in tax. Due to a clerical error, a judgment was entered for an amount equaling one tenth of the amount claimed. The proceedings by which the Commissioner sought to recover the debt were at an end. What the Commissioner then did however was initiate a fresh set of proceedings to recover the same debt. That dispute had already been finalised which is what caused the High Court to rule as it did.
In the present case, the proceedings in the Magistrates Court were between the applicant and Ms Boxall. They were adversarial proceedings which related to the applicant seeking to recover a specific debt by reference to an identified invoice. There was no counterclaim or set-off, although Ms Boxall raised matters relating to overcharging and negligence relating to other invoices it must be assumed she had already paid. The parties reached a compromise which resulted in the amount payable in the proceedings, as instituted, being reduced. There is no information on the face of the documents to suggest that the compromise related to all amounts Ms Boxall suggested she should not have had to pay across all the invoices the applicant rendered to her.
Further, the current proceedings are not proceedings as between the applicant and Ms Boxall, and this Court is not being asked reconsider the same dispute dealt with in the Magistrates Court. What this Court is being asked to do is make a determination by reference to s 454(2)(e) in proceedings in the nature of disciplinary proceedings.
Another matter relevant to this argument came up almost incidentally in the submissions made by counsel for the applicant on the resumed hearing. He apparently did not have any of the court books which were before me at the initial hearing and which contained what was before the Board. He did not seek any adjournment to pursue the fact he was without this material. What he did have was an affidavit sworn by the applicant on 24 June 2016 in support of an interlocutory application, and he relied on statements made in that affidavit to, as he said, put beyond doubt details about negotiations between the applicant and a solicitor for Ms Boxall in relation to the Magistrates Court proceedings. Counsel asserted that material was not challenged. Unfortunately, what counsel did not seem to be aware of was that the application, in respect of which the affidavit was filed, was opposed and never as such proceeded with. The affidavit was never read into evidence and no opportunity arose for its contents to be the subject of challenge. It was agreed the material sought to be adduced, which did not include the affidavit, would be taken de bene esse.
In my view the rationale behind Chamberlain's case has no application in the present case.
Return to repayment of fees issue
In addition to his other submissions, counsel for the applicant submitted that there was no basis in any event for this Court to make a determination as sought because the evidence was incapable of satisfying the Court on the balance of probabilities that there was any basis for a repayment.
At [68] of the first decision, I concluded that the evidence before me enabled me to agree with and adopt the Board's position that in relation to particular 11.1 the amount of overcharging involved was at least $10,000. That decision was made after a consideration of the invoices attached to Ms Malcolm's affidavit and other evidence. With respect to counsel for the applicant, there was, in my view, evidence which could satisfy me on the balance of probabilities as to that figure at the very least.
At [126] I accepted the amount of overcharging was $4,043.13 in relation to particular 11.3(a). That finding does not however automatically lead to that amount being the subject of a determination pursuant to s 454(2)(e). There is no doubt, having regard to the table which appears at [114] of the first decision, that $2,750 of the overcharge amount related to invoice 4333. There can also be no doubt having regard to Ms Malcolm's affidavit that she was aware of the compromise of invoice 4333 by reference to the consent order by which the applicant agreed to accept by way of fees a figure less than his total claim.
I have already referred to excerpts from the transcript of proceedings before the Board to which counsel for the Board referred me. There is clearly an argument by reference to the material before the Board that any overcharging figure relevant to invoice 4333 should not be the subject of any s 454(2)(e) determination.
As to evidence about other amounts which might be the subject of s 454(2)(e) determinations, I found at [87] of the first decision that Ms Boxall became liable to pay costs to her husband as a result of the enforcement proceedings. This was the subject of particular 4. Those costs amounted to $957.50. There is evidence relating to that obligation in volume 2 at pages 112 and 171. The actual amount paid was adjusted by reference to arrears of rates down to $737.43. There is also an overcharging amount of $890 by reference to invoices 3450, 3539, 3911 and 3814. That information can be gleaned from Ms Malcolm's affidavit and the report of Mr Wood.
There is therefore evidence from which I can be satisfied on the balance of probabilities that a repayment amount of at least $11,847.50 is supported, made up of the $10,000, [47] of these reasons, $957.50, [50] of these reasons, and $890, [50] of these reasons. Given the claim by counsel for the Board that the determination amount to $11,300, that figure is amply justified.
Determination as to expenses of the process undertaken by the Board and the hearing before it
Counsel for the Board sought a determination that pursuant to s 454(2)(m) the applicant pay to the Board the sum of $30,000 in relation to the costs incurred by the Board in investigating and hearing the complaint against the applicant. A determination to that effect had been made by the Board. Counsel for the Board submitted that in fact costs far in excess of that amount had been incurred in relation to counsel's fees and costs assessments, but that the Board had agreed to compromise the total. In fact it was submitted that the costs exceed $70,000, and I was referred to a table which set out how that total was calculated, which I was told was provided to the Board.
Counsel for the Board advised that the Board was prepared to still seek a determination in that amount. Counsel for the applicant opposed the making of any such determination. He submitted that this Court had no evidence in any properly admissible form as to the nature of the costs claimed. It is true that the Board did not seek to tender to the Court invoices from either its counsel or any costs assessor. However, the table to which counsel for the Board referred was before the Board, it is patently clear that costs of some significant description for counsel and costs assessments were incurred, and counsel for the applicant before the Board, and in this Court at the hearing which resulted in the first decision, made no submission whatsoever to the effect that costs of the nature claimed had not been incurred. It must be inferred that, while there was no formal consent to an order in the terms sought by the Board, counsel for the applicant did not challenge the quantum pursued were it sought.
Costs of the proceedings in this Court (inclusive of the preliminary argument before Blow CJ)
Counsel for the Board sought an order that the applicant pay the costs of the proceedings in this Court to be taxed. Counsel for the applicant accepted he could not sensibly oppose such an order given the findings made against his client.
Orders
For the foregoing reasons, the orders that are made will be global orders and are based on findings that I have made in relation to the particulars of complaint the subject of argument before me and the finding in relation to particular 9 as made by the Board.
The orders of the Court are that:
(a) pursuant to the Act, s 454(2)(a) it is determined that the applicant is reprimanded;
(b) pursuant to the Act, s 454(2)(e) the applicant is to pay to Ms Boxall the sum of $11,300;
(c)pursuant to s 454(2)(m) the applicant is to pay to the Board the sum of $30,000 relating to the costs of the Board incurred to investigate and hear the complaint;
(d)the applicant is to pay the costs of the Board of and incidental to the proceedings before this Court inclusive of those incurred before his Honour the Chief Justice in relation to the nature of the hearing to be taxed.
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