Council of the Law Society of NSW v Beazley
[2012] NSWADT 153
•03 August 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Council of the Law Society of NSW v Beazley [2012] NSWADT 153 Hearing dates: 31 May 2012 Decision date: 03 August 2012 Before: Deputy President D Patten
S Hale, Judicial Member
E Hayes, Non-judicial MemberDecision: 1. The application is dismissed.
2. No order as to costs.
Catchwords: PROFESSIONAL DISCIPLINE - Solicitor - liability for barrister's fees in particular circumstances - failure to pay - neither Professional Misconduct nor Unsatisfactory Professional Conduct - Consideration of Rule 32 Revised Professional Conduct and Practice Rules Legislation Cited: Evidence Act 1995
Legal Profession Act 2004Cases Cited: Allinson v General Council of Medical Education [1894] 1QB 750
Dimos v Hanos [2001 VSC 173
Giorgianni v The Queen (1985) 156 CLR 473
Law Society of NSW v McCarthy [2003] NSW ADT 58
Re Robb (1996) 134 FLR 294Category: Principal judgment Parties: The Council of the Law Society of New South Wales (Applicant)
Philip James Beazley (Respondent)Representation: Counsel
Ms J S Gleeson (Applicant)
Mr J T Johnson (Respondent)
Ms A Foord (Applicant)
Respondent - in person
File Number(s): 112021
REASONS FOR DECISION
By Application filed in the Tribunal's Registry on 12 August 2011, the Council of the Law Society of NSW (the Council) on the ground that Philip James Beazley (the Solicitor) was guilty of Professional Misconduct sought the following orders:
1.That the solicitor be fined.
2.That the solicitor be reprimanded.
3.That the solicitor pay the Costs of the Applicant as agreed or assessed.
4.Such further and other Order as the Tribunal deems appropriate.
The Application alleged that Professional Misconduct was constituted by:
1.Failure to pay Counsel's fees.
2.Attempting to mislead the Law Society.
The underlying facts are for the most part not in dispute. The Solicitor was admitted to practice on 1 December 1995 and has been since March 1998 a sole practitioner. His practice is general but predominantly in litigation.
In about July 2008, a solicitor Mr Clive Jeffreys (now Jeffreys DCJ) referred a client Mr Peter Chen (Mr Chen) to the Solicitor with a view to the Solicitor establishing, and obtaining appropriate equitable relief in respect of, an interest claimed by Mr Chen in a karaoke bar being conducted at Crows Nest. At the time Mr Chen was in custody awaiting trial on serious "money laundering" charges and, as a consequence, for the most part, the Solicitor took his instructions from Mr Chen's wife, Carol (Ms Liu). Mr Chen was subsequently convicted and sentenced to a very lengthy term of imprisonment.
The Solicitor commenced proceedings in the Equity Division of the Supreme Court on 27 August 2008. In connection with the obtaining of interlocutory orders, he briefed Mr Marcus Pesman of counsel whose fees for the services he provided were paid by the Solicitor out of money obtained from Ms Liu. Mr Pesman was not however available for the hearing of the case and instead the Solicitor briefed Mr Malcolm Gracie on the recommendation of Mr Jeffreys. The Solicitor had not previously briefed Mr Gracie.
In the event, Mr Gracie appeared for Mr Chen at a hearing before Rein J over 5 days in October 2008. His Honour dismissed the proceedings in a judgment published on 12 November 2008. In substance, Rein J held that Mr Chen and his witnesses did not give credible evidence and had failed to establish the agreement the Plaintiff relied on. His Honour went on to conclude that even if the asserted agreement had been established he would, nevertheless, have dismissed the proceedings due to an absence in Mr Chen of "clean hands".
A few days before the hearing before Rein J commenced, Mr Gracie sent to the Solicitor a document headed "Costs Agreement with Mr Malcolm R Gracie". The body of the document was in the following terms:
TO: Beazley Singleton Lawyers
RE: Peter Chen ats William Zhang & Ors
This document contains an offer by me to accept a brief from you in the above matter. Set out below are the terms and conditions as to my fees.
Total amount of fees:Unknown
Basis of fee calculation:$400 per hour plus 10% GST for preparation, advice, settling and drafting documents, conferences, preparing written submissions and pre-hearing Court appearances.
$4000 per day plus 10% GST for Court appearances and/or preparation based on a 9 hour day.
On any day involving preparation or the hearing of the matter, I reserve the right to charge my hourly rate in addition to my daily rate for any work performed after 6.00pm or before 9.00am on that day, or for work performed in addition to a 9 hour day.
Estimated likely fees: Preparation and advice: 2 days$8,000.00
(excluding GST) Hearings: 2 days$8,000.00
Total (excluding GST)$16,000.00
Billing arrangements:I reserve the right to bill you monthly for ongoing work if the brief is not completed within thirty (30) days of the date of acceptance of this offer. Payment in full is required within thirty (30) days of receipt by you of a memorandum of fees. If payment is not made in accordance with these arrangements, I may decline to continue to accept instructions and thereafter act in the matter.
Interest:At the expiry of thirty (30) days after a memorandum of fees is received by you, interest at the rate specified in the Legal Profession Act may be charged on any amounts unpaid.
Disbursements:Expenses and disbursements, inclusive of any GST payable, will be charged to you at their cost to me.
Cancellation fees:If I am briefed to appear on the hearing and the hearing does not occupy the full time set aside, the above daily fees will be payable for the cancelled hearing time up to a maximum of ten days where the hearing has been set down for a period of time in excess of ten days. Where the hearing has been set down for less than ten days, full cancellation fees will apply for the period of the cancelled hearing.
Fee increases:I reserve the right to increase my fees twice yearly, notwithstanding the brief has not been completed, namely from 1 January and l July of each year subject to notice of such increase being contained in a revised costs agreement. If my proposed fee increases are not accepted by you, I may decline to continue to accept instructions and thereafter act in the matter. Such increase is in addition to any increase related to the payment of the goods and services tax.
Assessment of Costs:You may apply to have my costs assessed under the Legal Profession Act within 60 days after receipt of the memorandum of fees.
Advocate's Immunity:The terms and conditions of this agreement in no way detract from my advocate's immunity from suit.
Your acceptance of this offer will be effected upon the first of either of the following:
(i) Your signing and returning a copy of this document to me: or
(ii) Receipt by-me of any instructions from you in relation to the matter after the date below.
Dated 13 October 2008
Malcolm R Gracie."
A version of this document is in evidence before us. It is dated 13 October 2008 and bears the signatures of the Solicitor, Ms Liu and Mr Gracie.
It seems to be not in contention that all of Mr Gracie's fees rendered to the Solicitor in respect of the proceedings before Rein J were paid direct to Mr Gracie by Ms Liu either by cheque or in cash. There was no challenge to the Solicitor's assertion that "there was an insufficient fund available to pay my fees after paying Mr Gracie".
Thus far there was, and could be, no criticism of the Solicitor's conduct. However, the adverse decision by Rein J caused those involved to exercise their minds as to the possibility of an appeal. The Solicitor deals with the immediate aftermath of the decision in his affidavit sworn 7 March 2012 as follows:
20. I recall on the day we received the judgment, walking back to the MLC centre from the Supreme Court down King Street with Mr Gracie on the way to his chambers. He said to me, words to the effect "We need to appeal this judgment. He has got it so wrong. I will speak with our floor leader Tom Hughes and ask him to lead me on the appeal on spec".
21. I was aware Mr T E F Hughes QC had led Mr Gracie in the Waterhouse matter briefed by Mr Jeffreys. I knew they worked together. I understood this to be an offer that Mr Gracie would do the matter on a contingency fee basis and would ask Mr Hughes to likewise do so.
22. I had a conversation with Mr Jeffreys and advised him of the judgment and my conversation with Mr Gracie about an appeal with Mr Hughes QC leading Mr Gracie. I knew Mr Jeffreys was acting for Mr Chen in his appeal to the Court of Criminal Appeal.
23. I had a conversation with Ms Liu and advised her of my conversation with Mr Gracie about an appeal with Mr Hughes QC leading Mr Gracie.
..........
26. I was aware that a successful appeal was the only way I would receive my fees in this matter. I said to Ms Liu, "I will do the appeal on a contingency fee basis but you must pay all of the disbursements such as the Court filing fees and the costs of the appeal books."
Although as paragraph 26 of the Solicitor's affidavit indicates, he had a personal interest in the outcome of an appeal, it is clear that Mr Chen, Ms Liu and Mr Gracie were not unenthusiastic, albeit Ms Liu made it clear that there was a lack of financial resources. Her attitude is evidenced by her emails of 15 and 18 November:
"15 November
Hello Mr. Beazley,
Can we apply the freezing order to the shop next Friday? If I can't get the shop, they can't get it either. I can accept it can be taken by the government rather than those two bastards. Also can we report to the police that Vincent's fake signature, which he pretend to be his brother by signing his brother's signature. The judge accepted that is the fact. It might help us.
I will see Peter tomorrow, he was quite angry. He did phone calls more than 5 times a day since Thursday. What can I say to him?
I had very nice "talk" with his family, and my parents as well. No one support me to go the next step, they said there is no chance to win and they have no more money to support this case. About my parents, they hope I can get divorce with Peter ASAP, that will be good for me. I just felt I have walked to the end of the road now, If I kept walking, then I have to fight alone, can't get any help from his family and my parents. How big stress on me now? I am lost, I don't know what I should do.
Regards,
Carol
18 November
Dear Mr. Beazley,
1st, I felt better because they won't ask me to pay the costs, but it is Peter. Is there anything we can do that you protect me, but I also want you to protect Peter as well, we lost too much.
2nd, I just remember we forgot something, I can find the docket which was signed by Vincent, we can get one of handwriting expert to identify those signatures were not William. If we did this, we properly still have the chance to win. But I think we still can do this, and put it to the court of appeal. They are all new evidences.
Mr Jeffrey (sic) gave me the answers already, he asked me to forget that 318k, it was hold by ATO. I did ask him to write an affidivate (sic) regarding that 130k case, Mr. Jeffrey said everything is in the folder, that's the judge problem he didn't read the case.
Regards,
Carol"
For his part, Mr Gracie on 24 November wrote to the Solicitor in these terms:
"I refer to my brief in the above matter and enclose a receipt for payment made by your client in respect of my fees.
I also confirm that you are presently ascertaining your client's attitude to an appeal and in that respect I confirm my initial advice that those prospects appear reasonably strong on the basis that his Honour simply failed to grant the relief which his Honour's own findings would suggest were warranted by a misapplication of the equitable doctrine of "clean hands".
Thank you for your instructions."
Mr Gracie followed up the letter with an email dated 28 November in which, using rather intemperate language, he claimed in effect that the judge erred by "incorrectly applying the doctrine of clean hands when it had no application to the circumstances and facts of the claim for relief he had to consider".
The Solicitor said that he took this "to be an advice on prospects of an appeal". We pause to record that the "advice" omitted to mention that the primary reason for the dismissal of the proceedings by Rein J was his disbelief of the evidence of the plaintiff and his witnesses.
In the event, upon the instructions of Mr Chen via Ms Liu and with the involvement of both the Solicitor and Mr Gracie, an appeal to the Court of Appeal was undertaken. The Solicitor prepared the Appeal Book etc. and Mr Gracie drafted the Notice of Appeal and the Appellant's submissions. He also appeared at the hearing on 2 July 2009 (Campbell JA, Handley AJA and Sackville AJA). On 24 July 2009, the Court unanimously dismissed the appeal with costs. Campbell JA and Handley AJA simply expressed agreement with Sackville AJA who found that no error was demonstrated in the approach taken by Rein J in making a decision adverse to Mr Chen on the facts. In that circumstance, his Honour held that is was unnecessary to consider whether, if a different factual conclusion had been reached, Mr Chen would have been disentitled by his own conduct, as Rein J held, to equitable relief.
On 9 January 2009, about a month after the Notice of Appeal was filed, Mr Gracie sent an email to the Solicitor:
"Dear Philip,
Happy New Year.
Just to keep things regular for the appeal, I have attached a proposed costs agreement.
I am back in chambers from Mon 12 Jan on an ad hoc basis (actually in court a few days next week for a few small things and some conferences) so let me know if you want to catch up for a chat about the appeal.
Cheers
Malcolm"
The document attached to the email was in the same form as the costs agreement reproduced above. Although the estimation of the total of "Estimated Likely Fees" was again $16,000, the breakup was different in that $12,000 was allocated to "preparation and advice" and $4,000 to a one day hearing.
So far as the evidence relates the costs agreement sent to the Solicitor on 9 January 2009 was never signed by anyone. It was however, received by the Solicitor who sent it on to Ms Liu, very possibly, as the Solicitor asserts, without opening the attachment and reading it. We think that nothing turns on this. It constituted a disclosure of costs by Mr Gracie in accordance with s.309 of the Legal Profession Act 2004.
On 8 April, Mr Gracie sent an email to the Solicitor regarding the work he had done in preparing for the appeal and seeking a response from the Solicitor in respect of matters he had been attending to. The email ended:
"Also can you please get Carol to drop off payment to my clerk for my account dated 26 March 2009 which covers the above preparation?"
A further email with a similar conclusion was sent to the Solicitor by Mr Gracie on 1 May.
On 31 July, a week after the Court of Appeal delivered judgment, Mr Gracie sent another email to the Solicitor:
"Can you send me Carol's mobile no? I want to chase some money as promised."
It appears that the Solicitor provided Ms Liu's telephone number to Mr Gracie and that he telephoned her, as on 14 August his assistant sent an email to Ms Liu:
"Dear Carol
I have been calling you in regard to your overdue accounts with Malcolm Gracie in the above matter. Malcolm called you on 31 July 2009 reminding you to pay and I tried to call you yesterday and this morning with no answer.
The matter has two overdue accounts of $8,800 dated 26 March 2009 and $7,480 dated 7 July 2009 totalling to the amount of $16,280.
Please let me know as soon as possible how you intend to pay these accounts.
Kind regards
Hannah Long
Personal Assistant to Malcolm Gracie"
Ms Long sent a further email to Ms Liu on 19 August seeking a reply to the email of 14 August.
Ms Liu on 13 August sent an email to the Solicitor which raised the matter of outstanding costs and disbursements:
"Dear Mr Beazley,
When you can go and see Peter? He wants to see you and discusses the matter with you in detail. He said he is trying to get some money for the Barrister and you now. Please Mr Beazley.
Thank you very much,
Best Regards, Carol."
Evidencing further direct contact between Mr Gracie's chambers and Ms Liu was another email sent on 26 August by his clerk to the Solicitor:
"I have spoken to Carol Liu this morning at 10.40 about the outstanding monies owed to Gracie. She has said that she is very sorry but she needs a little time to pay, she said, "two to three weeks, I am really sorry".
Mr Gracie has asked me to let you know that if this account is not paid by the client, he will expect you to pay it.
Regards
Lynette
Lynette Macdonald
Clerk"
Mr Gracie sent a further email direct to Ms Liu with a copy to the Solicitor on 2 October:
"Hi Carol,
I have neither received payment or a call from you; both of which you promised.
You place me in a difficult position because I will be obliged to commence recovery action but under my fee agreement I will have to sue Mr Beazley who in turn will have to either pay me from his own pocket and he may then chose (sic) to sue you.
My deadline for full payment of the unpaid $16,280 (without any claim for interest at this stage) is Friday 9 October 2009. That is far more than the 2 weeks you requested in late August when you spoke to my clerk, Lynette Mac Donald.
Having to commence formal recovery action will be much to my regret and will no doubt cause embarrassment for Philip.
Regards
Malcolm"
The last heard of Ms Liu appears to be her two emails of 5 October 2009, one to the Solicitor and the other to Mr Gracie:
"Dear Mr Beazley,
I am sorry I brought you a such big trouble. My son had inflammation of the lungs and Myocarditis, so I bought an air ticket and arrived home 4 days ago. I have been in hospital these days. Regarding the money can you tell Mr Gracie to wait until I come back. My will be back at 5th Nov. I will also email to Mr Gracie.
Best regards,
Carol
..........
Dear Mr Gracie, I am so sorry I did keep my words (sic), but something happened. And I received phone call from my parents and told me that my son had inflammation of the lungs and Myocarditis. So I bought an air ticket and arrived home 4 days ago. I have been in hospital these days to look after my son. About the money, could you please wait until I come back? At this stage, no one can help me in Sydney, I will be back at 5th Nov.
Please Mr Gracie, give me a chance, I don't want anything happen to anyone.
Best Regards,
Carol
Mr Gracie subsequently made a complaint about the Solicitor to the Legal Services Commissioner who in turn referred it to the Council. On 2 February 2010, Mr Knox Sinclair, Solicitor, Professional Standards, wrote to the Solicitor as follows:
Dear Mr Beazley
Re: Dispute by Malcolm Gracie. Barrister with you
Your client: Peter Chen Appeal
The Legal Services Commissioner has referred a complaint made by Mr Gracie to the Society as a "consumer dispute" and requested our assistance to resolve it. That is, the Commissioner's assessment is the complaint does not involve an issue of either unsatisfactory professional conduct or professional misconduct; Section 514 of the Legal Profession Act 2004 ("the Act"). By this letter you are invited to "enter into a process of mediation" with the complainant, s.515(2). Please note the Act broadly defines "mediation" and that you can decline to enter this process - ss.519 & 515(3).
I enclose a copy of the correspondence from Mr Gracie and it seems to me the concerns are:
Failure to pay Counsel's fees.
My role is to assist the parties to reach a resolution acceptable to themselves. To do that I need your co-operation.
Would you please consider the issues raised and respond to them. With your response, please provide copies of:
(i)Your tax invoices sent to your client in relation to the appeal, and
(ii)Your office and trust account ledgers in acting for your client in relation to this matter.
I look forward to your assistance and early response as the sooner we address all concerns, the more likely it is that a resolution can be achieved.
Yours faithfully
KNOX SINCLAIR
Solicitor
Professional Standards"
The Solicitor was not prompt in his reply although his tardiness is partially explained in his letter of 4 March:
"I refer to the complaint made by Mr Gracie of counsel. I apologise for the delay in replying however I was away when your letter arrived. I commenced a five-day defamation trial immediately upon my return. I was overseas for a client between 20 February 2010 and 1 March 2010.
I instructed Mr Gracie in the principal proceedings. Annexed is the costs agreement signed by me and Carol Liu, the plaintiffs wife. Ms Liu gave Mr Gracie a cheque for $8,800.00. The hearing lasted substantially longer than estimated. During the hearing Ms Liu paid Mr Gracie directly by cash and cheque. He was not paid through me. He was paid in full for the hearing. I was not. I received some money for disbursements.
The Court of Appeal Notice of Appeal drafted by Mr Gracie and sent to me in December 2009. It was filed by me on the client's instructions. It would appear Mr Gracie sent a costs agreement to me in January 2009, however I have no record or recollection of having received it. I certainly did not sign it.
It is clear from Mr Gracie's correspondence he was dealing directly with Ms Liu in relation to his fees. I have been paid for transcript and the costs of the appeal books. I have received not (sic) professional costs in relation to the appeal.
I engaged Mr Gracie directly for the hearing as evidenced by the signed retainer for which he was paid in full. Mr Gracie was engaged by Ms Liu directly in relation to the appeal as is evidenced by the communications between Ms Liu and Mr Gracie."
The Council relies on the last paragraph of the Solicitor's letter as evidencing its claim that he attempted to mislead the Law Society.
For reasons which were unexplained in the proceedings before us, following receipt of the Solicitor's letter of 4 March, the Law Society decided to upgrade Mr Gracie's complaint to a "complaint investigation". A letter was written to him on 20 May 2010:
"Dear Mr Beazley,
RE: Complaint by Malcolm Gracie, Barrister
Your Client: Peter Chen Appeal
Further to my 14 April 2010 letter the Legal Services Commissioner has now formally agreed to the Society upgrading Mr Gracie's complaint to a complaint investigation.
Your submissions are now requested in relation to the following conduct issues arising from the complaint:
1.Failure to pay the complainant's fees.
2.Attempting to mislead the Law Society.
To enable the Professional Conduct Committee to fairly consider this matter, you are required to provide me with your written response to the complaint, together with copies of any document that may offer support of your account, by 21 June 2010. Please be aware that as part of the investigation of this complaint, a copy of your response will be sent to Mr Gracie for comment.
Enclosed for your information are brochures entitled "Senior Solicitors' Scheme" and "Complaints Process Information".
Yours faithfully,
Knox Sinclair
Solicitor
Professional Standards."
The Solicitor replied on 31 May, "So that I know precisely what I am required to answer please provide particulars of the complaints alleged against me".
The Law Society's response dated 8 June was, if we may say so, some what garbled, imprecise, and unhelpful:
"Dear Mr Beazley
Re: Complaint by Malcolm Gracie, Barrister
Your Client: Peter Chen Appeal
In response to your 31 May 2010 letter you are advised as follows:
As to complaint 1 - Failure to pay the complainant's fees
As I understand this complaint relates to the complainant Counsel's unpaid invoices dated 26/3/09 (in the sum of $8,800.00 incl GST) and 7/7/09 (in the sum of $16,280.00 incl GST) relating to your engagement of Counsel (as a third party) on behalf of Peter Chen pursuant to Counsel's costs agreement dated 9 January 2009 or, alternatively, the earlier costs agreement dated 13 October 2008 relevantly adopted by you.
In the absence of clear advice given by you to Counsel when engaging him that you did not accept personal liability for his fees, you bear personal responsibility for the fees pursuant to Solicitors' Rule 32, a copy of which was sent to you with my 3 March 2010 letter.
As to complaint 2 - Attempt to mislead the Law Society
As I understand this complaint alleges you attempted to mislead the Law Society in the following two statements in your 4 March 2010 letter addressed to the Manager, Professional Standards, Law Society of NSW (in response to my letters dated 2 February 2010 and 3 March 2010):
A."It would appear Mr Gracie sent a costs agreement to me in January 2009, however I have no record or recollection of having received it"; and
BMr Gracie was engaged by Ms Liu directly in relation to the appeal as is evidenced by the communications between Ms Liu and Mr Gracie".
As I understand, it is alleged that by statement A you 'attempted to mislead the Law Society' for the following reasons:
(i) At no time during the course of the appeal did Counsel have any conference or consultation or receive any instructions directly from Ms Liu in relation to the appeal.
(ii) Counsel understood he received instructions directly from you as evidenced by his 9 January 2009 costs agreement and his 26 March 2009 and 7 July 2009 letters forwarding you his invoices.
(iii) There is no communication from you to Counsel that Ms Liu was engaging Counsel directly.
(iv) Communication by Counsel seeking payment of his fees directly from Ms Liu
(referred to in the penultimate paragraph of your 4 March 2010 letter as Counsel "dealing directly with Ms Liu in relation to his fees') from 8 April 2010 up until Counsel's 20 November 2009 letter to you, does not support your statement "Mr Gracie was engaged by Ms Liu directly in relation to the appeal".
As I understand, it is alleged that by statement B you 'attempted to mislead the Law Society' for the following reasons:
(i)Counsel sent you an email with his costs agreement at 4:07pm on Friday, 9 January 2009.
(ii) Counsel referred to the 9 January 2009 costs agreement in his letters dated 26 March 2009 and 7 July 2009 providing you his invoices then in his further letter dated 20 November 2009.
(iii)Your 4 March 2010 letter was the first occasion you stated "I have no record or recollection of having received [the 9 January 2009 costs agreement]".
You are required to provide your response to the complaint by 28 June 2010. After this date, without further notice, I will then report to the Professional Conduct Committee on the basis of the information then available to me.
Yours faithfully
KNOX SINCLAIR
Solicitor
Professional Standards
c.c. Mr M Gracie"
It appears that, reprehensively, the Solicitor neglected to communicate further with the Law Society despite a reminder dated 24 August. There the matter rested until 9 February 2011 when the Law Society wrote to the Solicitor inviting him, in effect, to make submissions within 14 days as to why proceedings should not be taken against him for Professional Misconduct in respect of failure to pay counsel's fees and attempting to mislead the Law Society.
Before making reference to further evidence before us, beyond that mentioned above, we should record the Solicitor's formal Reply filed on 7 December 2011. He denied any failure on his part to pay counsel's fees in circumstances where he had an obligation to pay them; he denied that such a failure in any event would constitute Professional Misconduct or even Unsatisfactory Professional Conduct; and he denied that by his letter of 4 March he attempted to mislead the Law Society. Inter alia, in respect of the alleged failure to pay counsel's fees, he denied entering into an agreement with Mr Gracie to be liable to him for his fees in the Appeal; he asserted that in his understanding Mr Gracie's work on the Appeal was done on a "no win no fees basis", he denied being aware of the existence of Mr Gracie's email of 9 January 2009 until some time after 14 April 2010; he denied that he ever had any intention to accept a personal liability to pay fees to Mr Gracie; and he asserted that he had not been paid for work done, either in respect of the hearing before Rein J, or in respect of the Appeal.
In respect of the allegation of attempting to mislead the Law Society, the Solicitor raised a number of procedural and technical matters which, if accepted, so he claimed, would deprive this Tribunal of jurisdiction. These matters were withdrawn by his counsel, Mr Johnson, at the hearing. He also made a substantive reply:
"3.1The excerpt from the letter of 4 March 2010 particularised at Particular 3 on page 6 of the Application, needs to be read in the context of the whole of my letter of 4 March 2010 and by reference to the whole of the material to which such letter responded. I will rely at the hearing on the whole of the letter. The statement in the excerpt, does not have the meaning which the Applicant seeks to attribute to it.
3.2The excerpt relied upon is incapable of constituting an attempt to mislead in that it is properly to be characterised not as a mere assertion of a fact but as a submission as to the finding which the Applicant should make on a proper consideration of the whole of the material before it and available to it.
3.3If, and to the extent to which, the statement relied upon may properly be viewed as an assertion of fact, it was an assertion of the fact of my belief as to the matters put and cannot properly be characterised as professional misconduct."
As to evidence in the case additional to that referred to above Ms Gleeson, counsel for the Applicant, read the largely formal affidavit of Ms Anne-Marie Foord sworn 10 August 2011 and 2 affidavits of Mr Gracie sworn 7 July 2011 and 27 March 2012.
Ms Foord's affidavit is the source of most of the written material already reproduced and it is unnecessary for us to make further reference to it. She was not required for cross-examination.
Mr Gracie's earlier affidavit annexed his memorandum of fees dated 26 March 2009 which totalled $8,800 and related to a review of the judgment of Rein J, consultation with the Solicitor regarding directions, drawing draft submissions etc. It also annexed his subsequent memorandum of fees dated 7 July 2009 which amounted to $7,480 and related to various preparatory work for the appeal and his brief on hearing fee.
He annexed to the affidavit a copy of his letter of 20 November 2009 to the Solicitor which we think should be quoted in full:
"Dear Philip
Outstanding Fees: $16,280.00: Peter Chen Appeal
I refer to our costs agreement dated 9 January 2009.
As you will recall, I first raised with you in March this year a question of fees outstanding in the matter of Chen which was $8,800 but to which I received no response until late June 2009 which was just before the hearing.
You will also recall that Ms Liu had purported to attend the St George Bank at lunchtime during the hearing of her husband's appeal on 2 July 2009 on the understanding that she was to obtain moneys to discharge my fees which then totalled $16,280.
As you will also recall I have contacted you in relation to non-payment on several occasions since 2 July 2009,and obtained from you Ms Liu's mobile and email details for the purpose of personally following up payment of my fees.
Needless to say, my attempts made directly with Ms Liu have been unsuccessful. My secretary, clerk and myself have been contacting Ms Liu since 31 July 2009. On 26 August 2009 Ms Liu requested 2-3 weeks to pay my fees. My clerk advised you in an email that in the event of Ms Liu not paying them I would seek recovery directly from your firm.
On 8 September 2009 Ms Liu said she was sending a cheque in part payment. No cheque was received.
On 2 October 2009 in an email to you and Ms Liu I advised of a deadline of 9 October 2009 failing which I would commence recovery action against your firm. I postponed that action because Ms Liu advised she had to urgently leave for China but that she was returning to Australia on 5 November 2009.
On 6 November 2009 being the day after Ms Liu advised me she would be returning from China, I contacted her by telephone to see when she would be able to make payments. She told me she was seeing Peter on 7 November 2009 to arrange payment.
I thereafter unsuccessfully attempted to contact Ms Liu on 9 November and forwarded her an email to which there was no reply. In that email I indicated I would initiate recovery action against your firm after 13 November 2009 if payment was not received by that date. I tried again by telephone to contact her on 12 and 13 November but to which there was no reply.
Similarly, I have no replies from messages left at your office on 13 November, 16 November and 17 November. You have not responded to a telephone message left on your mobile voicemail or replied to either of the two telephone calls made to your mobile on 18 November. On one of those telephone calls I again left a message to return my call. I have not had any return calls from you or your office.
In the circumstances, I have no option but to proceed with recovery of my outstanding fees against your firm. I will be attending to that forthwith; in the first instance by referring this matter to the Legal Services Commissioner. "
Mr Gracie's second affidavit made in response to Mr Beazley's affidavit referring to the conversation immediately after Rein J had published his judgment includes these paragraphs:
"3.In relation to PJB Affidavit paragraph 20, I deny the conversation as set out by Mr Beazley. I recall the conversation in the following terms:
Me: 'Let's have a look and see what we can do. It might be that I get Tom Hughes to have a look at the judgment and give me his thoughts on an appeal. If he does, maybe we can get him to do it.'
Mr Beazley: We need to appeal because we have to teach him [the judge] a lesson.'
The conversation occurred on the day we received judgment and at a time when I had not reviewed the judgment. I did not say that we needed to appeal the judgment. I did not suggest the involvement of Mr Hughes to lead me on the appeal 'on spec'. I am unaware of Mr Hughes conducting matters 'on spec'. I have never appeared with Mr Hughes or ever requested him to lead me in any matter on such a basis.
4. In relation to PJB Affidavit paragraphs 24 and 25, I was not involved in and was unaware of the communications between Mr Beazley and Ms Liu in relation to freezing orders and an appeal involving new evidence.
5.In relation to PJB Affidavit paragraph 28 I was not asked by Mr Beazley to provide a considered advice on the prospects or the grounds of any appeal and I did not provide such an advice. By 28 November 2008 I still had not received instructions to prepare an appeal: see Exhibit PJB1-6 on page 48 of the PJB Affidavit."
Although we accept that Mr Gracie was not asked to and did not give a formal advice as to the prospects of success of the appeal, it is not entirely easy to reconcile paragraph 5 of his affidavit with the terms of his letter to the Solicitor on 14 November 2008 and his email to the Solicitor of 24 November referred to above.
As to the personal liability of the Solicitor, Mr Gracie said:
"In relation to PJB Affidavit paragraph 37 I received instructions pertaining to the appeal from Mr Beazley after I had emailed him the Costs Agreement dated 9 January 2009. By forwarding me copies of the appeal books and instructions to prepare submissions and to appear at the hearing of the appeal I understood Mr Beazley to have accepted on behalf of his law firm the terms of my Costs Agreement."
Mr Gracie was cross-examined by Mr Johnson on his affidavits. He said he could not recall the terms of any conversation with the Solicitor regarding the Notice of Appeal but does remember that it had to be prepared as a matter of some urgency. He agreed that he thought the Appeal had "some merit".
He said that Ms Liu attended the hearing in the Court of Appeal and at lunchtime went away, ostensibly to obtain some money for him from the bank, an eventuality which did not occur. He said that he commenced to contact Ms Liu direct as the Solicitor was not returning his calls or replying to emails. He denied, in effect, that he knew that there was no fund to meet his fees unless the appeal was successful, explaining that his fees in respect of the proceedings before Rein J had always been met and that although he was aware that funds belonging to Mr Chen were frozen, he thought there was a reasonable prospect that not all his assets were so affected.
The Solicitor swore an affidavit on 7 March 2012. Much of the content of it is already incorporated in these reasons. In addition, however, he claimed that Mr Gracie knew that the subject of the litigation was Ms Liu's only source of income:
"13.The subject matter of these proceedings was the ownership of a Karaoke bar in Crows Nest. Mr Peter Chen claimed he purchased it with partners to employ his wife to give her and their son an income whilst he was awaiting trial and if he was sent to gaol. Associates of Peter Chen claiming to be friends took over the bar and locked out Ms Liu. This was Ms Liu's sole source of income, a fact known to Mr Gracie. Ms Liu had some money in her account to fund the litigation and to live on. I do not recall the precise amount but believe it was about $40,000.00. This was sufficient to pay for a two day case both my fees and counsel's estimated fees of $16,000.00."
The Solicitor deposed that the hearing before Rein J occupied 5 days instead of the estimated 2 days thereby, after payment of counsel's fees, exhausting the funds available to pay his costs.
In relation to the costs agreement emailed by Mr Gracie on 9 January 2010, the Solicitor said:
"32.On 9 January 2010 I received an email from Mr Gracie, a copy of which is "PJB1-10". At the time I wrote my letter to the Law Society in answer to the Complaint by Mr Gracie, I did not recall having received this email. I did not print a copy off and it was not on my file. I now know I must have seen the email as I have found an email to Ms Liu forwarding a copy of Mr Grade's email. A copy of this email is "PJB1-11".
33.When I read the email, which I have no recollection of doing, I would have seen the words "proposed costs agreement". Those words are consistent with my belief that Mr Gracie was preparing the appeal on a contingency fee basis and that in the event we received a costs order, his fees would be rendered in accordance with that fee agreement. I did not print out the email or the costs agreement and place it on the file. I did not receive a hard copy of the retainer agreement from Mr Gracie as he had sent the first retainer."
He also said that it is not uncommon for him to take matters on a contingency fee basis:
"It is common in those matters to receive from counsel a fee agreement and memorandum of fees from time to time so that in the event of a costs order, those fees would be claimed. In the event the proceedings failed, counsel would not pursue the fees. "
Explaining the terms of his letter to the Law Society of 4 March 2010, he said:
"When I wrote my letter to the Law Society dated 4 March 2010 I did so from my hard copy file and did not do a search of the emails on my computer. The letter I was responding to from the Society dated 2 February 2010 had a copy of the retainer agreement from Mr Gracie attached. The email was not attached. In my letter dated 4 March 2010 I did not attempt to mislead the Society, nor do I believe on a proper reading of the letter, it is capable of being misleading of the Society."
As to his belief as to his personal liability to Mr Gracie, the Solicitor said:
"43.At no time did I believe I was liable to Mr Gracie for his fees. Up to at least April I believed Mr Gracie was doing the matter on a no win no pay basis. I did not turn my mind to his entitled (sic) to pursue Ms Liu for fees or rendering an account after that date.
At no time up to the receipt of the email to Ms Liu from Mr Gracie dated 10 October 2009 (copied to me) did I believe Mr Gracie would look to me for payment of his fees. Had I known at the beginning of the Appeal he would look to me to pay his fees, I
would have ensured there was a source of funds to pay him available or I would have asked him to return the brief as Mr Chen was in gaol and Ms Liu did not have a large sum of money available to her. She did have sufficient to pay the costs of the appeal books, transcript and filing fees."
In cross-examination of the Solicitor by Ms Gleeson, he agreed that he believed that the only way of getting paid for the Appeal was if it was successful, and that this belief did not change prior to the hearing of the appeal. He was aware that a large sum of money belonging to Mr Chen had been frozen on the application of the NSW Crime Commission.
He agreed that he never told Mr Gracie of his belief that a successful appeal was the only means by which they would be paid, he having received nothing for his work at first instance. He said that Mr Gracie's reference to "on spec" following Rein J's judgment indicated that as the basis on which Mr Gracie would do the work. He agreed that he never had a conversation with Mr Gracie in which he said, at a relevant time that he would not accept personal responsibility for his fees. He denied, however, that he regarded Mr Gracie's email of 8 April 2009 requesting him to ask Ms Liu to pay his account of 26 March 2009 as inconsistent with Mr Gracie doing the work on a "no win no pay" basis. He said that it was consistent with his belief that no claim would be made against him personally.
We accept that both Mr Gracie and the Solicitor were witnesses who did their best to assist the Tribunal. Given the Solicitor's knowledge of the means of his client and the fact that he himself had not been paid for the proceedings before Rein J, we accept his version of the conversation when the name of Mr T E F Hughes QC was mentioned. We think it probable that if Mr Gracie did not use the words "on spec", it is likely that the Solicitor did so or used words to like effect. Of course, it is not suggested that Mr Hughes himself was ever implicated in the matter at all.
The evidence recited above reveals, we think, a degree of confusion in the mind of the Solicitor at relevant times. The confusion relates to three possible scenarios; that in respect of the appeal, Mr Gracie was instructed direct by Mr Chen and the Solicitor had no role to play; that Mr Gracie had undertaken the appeal work on the basis that if it were unsuccessful he would not seek payment of his fees from anyone; and that whatever the outcome, he would not seek to recover his fees from the Solicitor personally.
On the evidence there is no basis to conclude that Mr Gracie was instructed direct by the client to the exclusion of the Solicitor and we do not think that the Solicitor ever thought, or intended to convey the contrary. He prepared the Appeal Book which presumably bore the name of his firm; he appeared on at least one occasion before the Registrar; he fulfilled other obligations imposed upon a solicitor by the rules of court; he attended to instruct counsel at the hearing; and the name of his firm appears on the cover sheet of the judgment of the Court of Appeal.
Likewise, the evidence does not support an agreement by Mr Gracie to work on a "no win no pay" basis. The evidence of the Solicitor at its highest, we think, does no more than suggest the possibility that a silk might be persuaded to lead Mr Gracie on that basis.
In our view, it has become clear law in this state that a solicitor who instructs a barrister normally is personally liable for the barrister's fees. That was the view taken in Victoria by Gillard J in Dimos v Hanos [2001 VSC 173 following a detailed historical analysis, and we see no reason why the common law position should be different in NSW. Dimos v Hanos was followed by this Tribunal in Law Society of NSW v McCarthy [2003] NSWADT 58.
But in any event the conclusion expressed by Gillard J is implied by Rule 32 of the Revised Professional Conduct and Practice Rules 1995 (deemed to have been made under the Legal Profession Act 2004) which provides:
"A practitioner who deals with a third party on behalf of a client for the purpose of obtaining some service in respect of the client's business, must inform the third party when the service is requested, that the practitioner will accept personal liability for payment of the fees to be charged for the service or, if the practitioner is not to accept personal liability, the practitioner must inform the third party of the arrangements intended to be made for payment of the fees."
The rule is drafted in somewhat curious terms. On its face it requires a solicitor, for instance, to inform (but not necessarily in writing) each barrister he instructs that he will accept personal liability for payment of fees. This is no more than the law requires and is probably honoured more in the breach than the observance. On the other hand, if the solicitor does not intend to accept personal liability, it is unnecessary for him to say so either in writing or otherwise. All the rule requires is that the barrister be told of the arrangements intended for payment of his or her fees. This is much less than the law requires although presumably the barrister when confronted with the intended arrangements may decline to accept the brief. However the rule does not go on to provide as it might have that if the intended arrangements for payment fall through the Solicitor would be exonerated from personal liability. In our view in light of what we have said above the Solicitor would remain personally liable unless the barrister had formally agreed otherwise. Although he does not claim to have complied with either limb of the rule, the Solicitor may well have conveyed to Mr Gracie his intention that he would arrange for Ms Liu to pay his fees thereby arguably complying with the rule. It is not difficult to understand why the Council did not rely on an alleged breach of cl 32 as constituting Professional Misconduct or Unsatisfactory Professional Conduct in this case. We suggest that consideration be given to its amendment.
Although the Solicitor may have believed that Mr Gracie would not look to him personally for payment of his fees, there is no evidence that he conveyed that belief to Mr Gracie let alone evidence of Mr Gracie's acceptance of the fact. We are satisfied that the Solicitor was and is liable to Mr Gracie for payment of the outstanding fees. This finding does not however necessarily dispose of the Application before us. We also need to consider whether the Solicitor's failure to pay Mr Gracie constitutes Professional Misconduct or Unsatisfactory Professional Conduct.
In respect of the alleged attempt to mislead the Law Society, the only particular relied on is the final sentence of the Solicitor's letter of 4 March 2010, "Mr Gracie was engaged by Ms Liu directly in relation to the appeal as is evidenced by the communications between Ms Liu and Mr Gracie".
In considering the matter we are bound by the Evidence Act 1995 with particular need to observe the standard of proof mandated by s 142. Allegations of Professional Misconduct and to a lesser extent of Unsatisfactory Professional Conduct against a solicitor are grave allegations with potentially serious consequences. This factor is relevant to take into account when considering whether the allegations have been proved to the standard required by s 142.
In our opinion the allegation of an attempt to mislead the Law Society involves proof of an intention to do so which, of course, may be inferred from the circumstances. In this case we do not think that such an intention was proved. Carelessness, imprecise use of words or even recklessness is not sufficient (in a criminal law context see Giorgianni v The Queen (1985) 156 CLR 473 at 506). The Solicitor has denied on oath that he intended to mislead the Law Society and the nature of the matter renders it inherently unlikely, we think, that in the situation he found himself he would seek to mislead the Law Society. As he was the Solicitor on the record in the Appeal he was hardly likely to be claiming that he had no part in it.
The letter to which he was replying focussed on his failure to pay counsel's fees and, in our view, that was the focus of his reply. We do not think the last sentence of his letter should be regarded as doing more than state, perhaps in a clumsy fashion, his belief that he had no personal liability to Mr Gracie. He went so far as to state the basis for such belief, namely the direct exchanges between Mr Gracie and Ms Liu, which arguably may have led him to think at least until the end of August 2010 that Mr Gracie would not look to him personally for payment.
The claim that the Solicitor attempted to mislead the Law Society should be dismissed.
Undoubtedly, as we have found the Solicitor failed to pay Mr Gracie's fees which he was personally liable to pay, and undoubtedly, in some circumstances, a failure to pay counsels' fees could amount to Professional Misconduct. So much was held by this Tribunal in McCarthy at paragraph 43.
However, in no case referred to us, or which our own research has revealed, has a solicitor been found guilty of Professional Misconduct in respect of a failure to pay counsels' fees in the absence of other acts of misconduct such as a breach of trust account regulations. In McCarthy itself the solicitor had "pocketed the client's money in circumstances where he clearly had received from counsel relevant memoranda of fees which were due and owing, and he failed to use the client's payments in satisfaction of those outstanding fees". The facts of McCarthy are far removed from this case.
The case of Re Robb (1996) 134 FLR 294 in the Supreme Court of the ACT is another example. The Court (Miles CJ Gallop and Higgins JJ) said at page 310:
"The attitude of the solicitors was, according to their case, justified by the peculiar nature of the liability of a solicitor to pay counsel's fees. As is well-known, the obligation is not that of the client but that of the solicitor. Furthermore, the obligation of the solicitor is not even an obligation owed on behalf of the client, it is a personal obligation. At common law a barrister is not able to sue for fees. The obligation is said to be a professional obligation or an obligation of honour. Nevertheless the obligation is such that wilful or persistent refusal to pay counsel's fees can amount to professional misconduct on the part of a solicitor. We were referred to recent decisions in New South Wales including Carver v Legal Professional Disciplinary Tribunal (1991) 7 LPDR 8 at 12 and Re Boyne Wood and Radin (unreported, Legal Professional Disciplinary Tribunal, 23 December 1995). It appears that no precedent has been found for the proposition that wilful or persistent delay in paying counsel's fees amounts to professional misconduct.
However, it is not self-evident that such delay can never amount to professional misconduct on the part of a solicitor and it is not necessary to decide one way or the other for present purposes. In the present case, the extent of the delay in paying counsel from the time counsel became entitled to payment according to the terms of the arrangement with the solicitors, namely upon receipt of the settlement or judgment moneys, is only one factor to be taken into account.
The point is that the delay in paying counsel to be attributed to the solicitors in the present case stems from their assumption that moneys in their office account, received on trust for the client and transferred to the office account for the very purpose of paying counsel, were not affected by their fiduciary duties to the client and were their moneys to pay counsel fees when they chose and that any delay was simply a matter between counsel and themselves.
The assumption was totally unjustified. On the contrary, every day of delay in paying counsel from the time of transferring the moneys from the trust account to the office account, was a day in which the solicitors were in breach of the fiduciary duty to the client. The seriousness of their conduct is not mitigated by their assumption that the money belonged to them. That seriousness is aggravated by other factors to which reference will be made, factors which lead to the conclusion that the solicitors were indifferent to their fiduciary role and to the conflicts between their own interests and those of the client. That indifference and the failure to recognise the conflict between the interests of the client and the interests of the solicitors are part of the total picture in which delay in paying counsel is simply part of the background. It is not part of the background which is in mitigation."
Sections 496, 497 and 498 of the Legal Profession Act illuminate in an inclusive manner the expressions Unsatisfactory Professional Conduct and Professional Misconduct:
496 Unsatisfactory professional conduct
For the purposes of this Act:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
497 Professional misconduct
(1) For the purposes of this Act:
professional misconduct includes:
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
498 Conduct capable of being unsatisfactory professional conduct or professional misconduct
(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,
(b) charging of excessive legal costs in connection with the practice of law,
(c) conduct in respect of which there is a conviction for:
(i) a serious offence, or
(ii) a tax offence, or
(iii) an offence involving dishonesty,
(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration,
(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,
(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),
(g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),
(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.
In this case the Council does not rely on proof of one or more of the matters listed in s 498 and accordingly needs to show in order that there be a finding of Professional Misconduct that the Solicitor is not a fit and proper person to engage in legal practice. The test to be applied is derived from cases of long standing such as Allinson v General Council of Medical Education [1894] 1QB 750 where at page 763 Lopes LJ applied in relation to a medical practitioner the test whether the act in question "would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency".
Ms Gleeson pointed to factors which she submitted makes this a case of Professional Misconduct, including the failure of the Solicitor to apply himself at all to the matter of paying Mr Gracie's fees; his failure to inform Mr Gracie of his belief that their client had no funds out of which fees could be paid; and the absence of any basis for the Solicitor to think that Mr Gracie was performing work on a "no win no pay" basis.
However notwithstanding those submissions, we do not think, in the circumstances of this case that the Solicitor's conduct should be regarded as disgraceful or dishonourable in a way which meets the Allinson test. Although he was wrong in failing to accept a personal liability to pay Mr Gracie's fees, we accept that until August 2009 he may genuinely have believed that Mr Gracie was not intending to hold him personally liable. The legitimate basis for such a belief was the fact that Mr Gracie was actively pursuing Ms Liu himself.
We reject the Council's claim that failure to pay Mr Gracie's fees amounted to Professional Misconduct. This leaves open whether it constituted Unsatisfactory Professional Conduct. His attitude was certainly wrong and mistaken but we think something more than that particularly where the error is isolated and does not reflect on professional competence, is required to constitute a finding of Unsatisfactory Professional Conduct. If it were otherwise we imagine that few legal practitioners would be immune from claims such as the one made against the Solicitor in this case.
It is a matter for judgment and this case may go close to the border but in all the circumstances we are not persuaded that the case of Unsatisfactory Professional Conduct has been established. We would therefore dismiss the Application.
Mr Gracie sought from the Tribunal a compensation order under s 573 of the Legal Profession Act. In light of our findings we have no jurisdiction to make such an order (s 573(1).) However in view of our conclusion that the Solicitor is personally liable for Mr Gracie's fees we would hope that the dispute between them may be resolved without further litigation.
As to costs, in our opinion there is no reason within s 566(2) of the Act warranting the making of a costs order against the Solicitor. Nor in our opinion are there special circumstances which would warrant the making of an order in the Solicitor's favour under s 566(3).
Orders
1. The application is dismissed.
2. No order as to costs.
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Decision last updated: 03 August 2012
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