De Pardo v Legal Practitioners Complaints Committee
[2003] WASCA 274
•14 NOVEMBER 2003
DE PARDO -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2003] WASCA 274
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 274 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:97/2002 | 3 OCTOBER 2003 | |
| Coram: | MALCOLM CJ PARKER J MILLER J | 14/11/03 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | NINO ANTHONY DE PARDO LEGAL PRACTITIONERS COMPLAINTS COMMITTEE |
Catchwords: | Legal Practitioner Unprofessional conduct Appeal from decision of Legal Practitioners Disciplinary Tribunal Whether gross overcharging Whether unprofessional conduct |
Legislation: | Legal Practitioners Act 1893 (WA) Legal Practitioners Act 1898-1954 (NSW) |
Case References: | D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 Quigley v The Legal Practitioners Complaints Committee [2003] WASCA 228 Re Hodgekiss (1959) 62 SR (NSW) 340 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DE PARDO -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2003] WASCA 274 CORAM : MALCOLM CJ
- PARKER J
MILLER J
- Appellant
AND
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent
Catchwords:
Legal Practitioner - Unprofessional conduct - Appeal from decision of Legal Practitioners Disciplinary Tribunal - Whether gross overcharging - Whether unprofessional conduct
Legislation:
Legal Practitioners Act 1893 (WA)
Legal Practitioners Act 1898-1954 (NSW)
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Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M J McCusker QC
Respondent : Mr R J Davies QC & Mr K A Williams
Solicitors:
Appellant : Pearman Grantham
Respondent : Legal Practitioners Complaints Committee
Case(s) referred to in judgment(s):
D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Quigley v The Legal Practitioners Complaints Committee [2003] WASCA 228
Re Hodgekiss (1959) 62 SR (NSW) 340
Case(s) also cited:
Nil
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1 JUDGMENT OF THE COURT: This is an appeal from a decision of the Legal Practitioners Disciplinary Tribunal ("the Tribunal") delivered on 24 May 2002 following a Reference by the Legal Practitioners Complaints Committee in relation to the appellant.
2 The appellant is a legal practitioner and, in the Reference, it was alleged that he was guilty of unprofessional conduct in that as a barrister he charged by way of counsel fees rendered to his instructing solicitor "in the matter of [H]", sums of money which were, in all the circumstances, grossly excessive. Those sums were respectively $1500 in a memorandum of fees dated 23 June 1992, $10,000 in a memorandum of fees dated 5 March 1993 and a further $4500 in the memorandum of fees dated 5 March 1993.
3 The Tribunal found the appellant to have charged grossly excessive fees in each instance, such that they amounted to unprofessional conduct. The appellant was fined $3000 and ordered to pay costs.
4 The appellant's grounds of appeal are lengthy and detailed. In essence, they contend that the Tribunal erred in fact and in law in concluding that each of the charges was excessive so that in the circumstances the Tribunal was in error in concluding that the appellant was guilty of unprofessional conduct.
5 At the hearing of the appeal counsel for the appellant properly conceded that a grossly excessive charge by way of counsel fees may amount to unprofessional conduct, accepting for this purpose the decision of this Court in D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198. In that case, Ipp J (with whom Pidgeon and Franklyn JJ agreed) said (at 214):
"Parliament is content to leave the determination of what constitutes unprofessional conduct to the professional body concerned: see Re a Solicitor (at 484), per Lord Widgery CJ. There is a considerable amount of case law on what constitutes a breach of ethics by a legal practitioner, and, as is pointed out in Re Veron; Ex parte Law Society (NSW) (at 144), it has been accepted since at least the middle of the last century that the charging of grossly excessive costs may amount to unprofessional conduct."
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The role of the Court
6 During the course of the appeal Mr McCusker QC, counsel for the appellant, effectively challenged the generally held view in this Court that the Court should give great weight and be slow to differ from the Tribunal's opinion that particular acts or omissions by a legal practitioner do or do not amount to unprofessional conduct. The thrust of Mr McCusker's submission was that the Tribunal in this case was not comprised of practitioners experienced in family law and there is an absence of evidence in the case to justify a conclusion that the Tribunal was equipped to deal with issues of costs in Family Court proceedings and to conclude the costs charged by the appellant were so grossly excessive as to constitute unprofessional conduct.
7 Mr McCusker QC argued that in Re Hodgekiss (1959) 62 SR (NSW) 340 at 343, the views expressed by Owen J are to be read in light of the fact that the Statutory Committee then governing the conduct of solicitors in New South Wales was a Tribunal of practising solicitors of standing appointed by the Chief Justice under the terms of the Legal Practitioners Act 1898-1954 (NSW), for the purpose of hearing charges of professional misconduct referred to it by the Court or a Judge, or by the Council of the Incorporated Law Institute. In Re Hodgekiss, Owen J (at 343) made the point that such a Tribunal is "eminently fitted to decide whether the conduct of a solicitor in any given set of circumstances amounts to professional misconduct". His Honour pointed out that whilst an appeal from its decision was in the nature of a rehearing, the Court should give great weight to and be slow to differ from the Committee's opinion that particular acts or omissions by a solicitor do or do not amount to professional misconduct.
8 Mr McCusker QC argued that the Statutory Committee thus constituted under the terms of the Legal Practitioner's Act 1898-1954 (NSW) was a specialist Tribunal appointed in such a way as to make it clear that its members had the required expertise to deal with questions of alleged misconduct of legal practitioners. This, he contended, was absent from the Tribunal in the present case.
9 We are unable to accept counsel's submission. The Tribunal which heard the case under consideration on this appeal was constituted under the provisions of s 28E of the Legal Practitioner's Act 1893 (WA) ("the Act") to comprise a chairman, members of the Legal Practice Board (itself constituted under s 4 of the Act) and one or more other persons as
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- representatives of the community. Section 28E (so far as is relevant) is in these terms:
"(1) The Disciplinary Tribunal shall consist of the following members -
(a) the chairman, and a deputy chairman if appointed;
(b) the members for the time being of the Board, other than -
(i) those who hold office as members of the Complaints Committee; or
(ii) those who, in relation to the particular matter, have been participating in any endeavours at conciliation under this Part;
and
(c) one or more other persons as representatives of the community, none of whom shall be a person who is or has been a practitioner or holds current office as a representative of the community in the Complaints Committee.
(2) The chairman of the Disciplinary Tribunal shall be appointed by the Governor but shall not be eligible to be so appointed unless he or she is -
(a) a judge of the Supreme Court;
(b) a former judge of the Supreme Court, the Federal Court of Australia or the High Court of Australia; or
(c) a practitioner of not less than 8 years standing,
and shall hold office, subject to Schedule 3, for such term of not more than 3 years as may be specified in the instrument of appointment but may from time to time be reappointed.
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- (3) Each member of the Disciplinary Tribunal who is to hold office as a representative of the community shall -
(a) be a person appointed as such by the Attorney General, after consultation with the Minister responsible for consumer affairs;
(b) hold office, subject to this Act, for such term of not more than 3 years as may be specified in the instrument of appointment; and
(c) be eligible, subject to subsection (4), to be reappointed."
11 The Disciplinary Tribunal has a coram of the Chairman, or a Deputy Chairman or a person acting as Chairman, two members of the Legal Practice Board and a representative of the community. By cl 5 of Sch 2 of the Act, a representative of the community does not have a deliberative vote on any question in the exercise of disciplinary jurisdiction.
12 Thus while there are differences as to the manner of appointment, the Tribunal effectively comprises persons who are or have been very senior members of the practising profession and members elected by the profession inter alia to perform this very function.
13 We can find no support for the proposition that, relevantly, members of the Tribunal are in any different position than members of the Statutory Committee in New South Wales in relation to which Owen J in Re Hodgekiss was speaking in the passage to which we have referred.
14 Further, it cannot be accepted that this Court should look behind the constitution of the Tribunal to decide for itself whether members of the Tribunal in a particular case were sufficiently expert in a particular aspect of a field of legal practice relevant in some way to that particular Reference. It can, in the Court's view, be accepted that members of the Tribunal constituted pursuant to the provisions of s 28E of the Act constitute a specialist Tribunal appointed or elected inter alia for the
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- specific purpose of dealing with the discipline of the legal profession, including the determination of References of the type in question. In this case the Tribunal was comprised of a retired Judge of the Supreme Court of Western Australia, a Queen's Counsel, a legal practitioner and a community representative. There is no reason to think that the Tribunal so constituted was not in a position to bring to the determination of this Reference an appropriate understanding of all relevant aspects of legal practice.
15 In any event, the submission being considered must also be put aside for another reason. The issues in this case do not depend upon specialised knowledge peculiar to family law. They concern the fees chargeable by counsel.
16 The role of this Court in determining an appeal from the Tribunal was very recently set out by Parker J (with whom Malcolm CJ and Anderson J agreed) in Quigley v The Legal Practitioners Complaints Committee [2003] WASCA 228. Rather than restate what Parker J so recently wrote in relation to the matter, it is convenient to reproduce and adopt, for the purposes of this appeal, his Honour's views expressed at [20] - [27] as follows:
"20 An appeal to this Court from the Tribunal is in the nature of a rehearing; RSC O 65 r 2(1)(d), and see Lashansky v Legal Practitioners Complaints Committee [2002] WASCA 326, Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-620 and Allesch v Maunz (2000) 203 CLR 172 at [23].
21 The approach to be taken by this Court on appeal from the Tribunal against a finding of unprofessional conduct has been considered by this Court in D'Alessandro v Legal Practitioners Complaints Committee (supra) by Ipp J, Pidgeon and Franklyn JJ, concurring at 201, where earlier observations in the particular context of appeals from the Medical Board were applied to appeals against decisions of the Tribunal. In particular it was said at 205 - 206:
'The approach of this Court in determining an appeal against a finding of professional misconduct is that expressed by Rowland J in Bradshaw v Medical Board (WA) (1990) 3 WAR 322. That case
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- concerned an appeal from the Medical Board against a finding of professional misconduct on the part of the appellant. His Honour observed (at 335) that the appellate tribunal must decide:
"whether those facts (found by the Medical Board) constituted conduct which amounted to professional misconduct. In doing so (the appellate tribunal) would have to assess what weight to give to the decision of the Board and, with respect to those who suggest otherwise, (it) would start off wanting to give great weight to the views of members of the Board, composed as they are of members of the profession who had been appointed to the Board for the simple reason that they are members of the profession, unless the facts or views are such that (the appellate tribunal) is unable to accept either the facts as found or the views as expressed. To do otherwise is to avoid the whole purpose of having a specialist tribunal appointed for the purpose. That is not to suggest that (the appellate tribunal) could not, and should not, overturn their decision if, after having considered the whole of the evidence, (the appellate tribunal) believed that the decision was wrong".'
- 22 Reliance was also made on the views of Owen J in Re Hodgekiss [1962] SR (NSW) 340 at 343:
' … I think it desirable to state shortly my view as to the way in which the court should approach an appeal of this nature. The Statutory Committee is a tribunal of practising solicitors of standing appointed by the Chief Justice under the terms of the Legal Practitioners Act for the purpose of hearing charges of professional misconduct referred to it by the Court or a Judge or by the council of the Incorporated Law Institute. For the purposes of punishing members of the profession who fail to maintain proper standards of honour and honesty and of protecting members of the public, the Committee is given wide powers, including the
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- power to strike the names of offenders from the roll. Such a tribunal is eminently fitted to decide whether the conduct of a solicitor in any given set of circumstances amounts to professional misconduct and to determine what is the proper penalty to be imposed in any particular case. While an appeal from its decision to the Court is in the nature of a rehearing, the Court should give great weight to and be slow to differ from the Committee's opinion that particular acts or omissions by a solicitor do or do not amount to professional misconduct, and the court should attach the same weight to a decision of the Committee as to the appropriate order to be made in a particular case. (See Re a Solicitor (No 2) (1924) 93 LJKB 761; Re a Solicitor (No 2) [1956] 1 WLR 1312; [1956] 3 All ER 516.) In determining, however, what are the facts on which a finding of professional misconduct has been based, the findings of the Statutory Committee should be regarded by the Court in the same way as are those made, for example, by a judge sitting without a jury.'
- 23 Reference was also made to Libman v General Medical Council [1972] AC 217 where the Privy Council stressed the importance of the findings of a specialist tribunal.
24 Where there is a challenge to the findings of fact made by the Tribunal the principles applicable are those settled by the decision of the majority in Warren v Coombes (1979) 142 CLR 531, where at 551 it was said by Gibbs ACJ, Jacobs and Murphy JJ:
"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having
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- reached its own conclusion, will not shrink from giving effect to it."
- 25 Of course, as was well recognised in Warren v Coombes at 552, where the Tribunal has heard witnesses as to disputed factual matters and has reached findings which depend in part on the Tribunal's appreciation of the credibility of the witnesses, the capacity of this Court to come to a different view of the facts is necessarily considerably restrained because this Court has not had the advantage enjoyed by the Tribunal of being able to evaluate at first hand the credibility of the competing witnesses. That situation does not arise in the present case, however, as no oral evidence was heard by the Tribunal.
26 The onus remains on the appellant to satisfy this Court that the decision of the Tribunal is wrong: D'Alessandro v Legal Practitioners Complaints Committee at 206; Powell v Streatham Manor Nursing Home [1935] AC 243 at 255 per Lord Atkin, cited by the majority in Warren v Coombes at 539. Nevertheless, it is for this Court to make up its own mind what facts are established by the evidence and what inferences should be drawn from those facts, in each case giving due respect and weight to the Tribunal's views. As was said by the majority in Warren v Coombes at 552:
'The duty of the appellate court is to decide the case – the facts as well as the law – for itself'.
27 In a case such as the present it should be born in mind that, relevantly, there are two stages to the decision of the Tribunal. First, it had to find what was the conduct of the appellant as established by the evidence. Secondly, it had to reach a conclusion whether that conduct of the appellant constituted unprofessional conduct as alleged in the Reference. It is in regard to this second stage that the observations as to the weight which this Court ought properly give to the conclusion of the Tribunal, as a specialist tribunal, as recognised in the decision of this Court in D'Alessandro v Legal
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- Practitioners Complaints Committee and by Owen J in Re Hodgekiss, have their place. Adopting the words of Owen J cited earlier, it is appropriate that this Court 'should give great weight to and be slow to differ from' the Tribunal's opinion that particular conduct does or does not amount to unprofessional conduct. Nevertheless, having heeded this guidance, if this Court is satisfied that the Tribunal's conclusion is not correct, it is our duty to correct the error."
17 Adopting these clearly stated principles, we are firmly of the view that in this appeal, great weight should be given to the conclusions reached by the Tribunal and the Court should be slow to differ from its opinion in relation to the conduct of the practitioner in question.
Obligation of Tribunal to assess what was a proper fee
18 In the course of argument, Mr McCusker QC placed reliance upon what was said by Ipp J in D'Alessandro v Legal Practitioners Complaints Committee (at 214) to the following effect:
"The inquiry into what amounts to grossly excessive or unreasonable costs would ordinarily involve, first, a determination of what, in the particular circumstances, would be a reasonable sum to charge. The resolution of that question would often turn on multiple factors, including the amount at which the costs in question was or would likely be taxed, the difficulty of the case, the novelty or complexity of the legal issues presented, the experience of the practitioner, the quality of his or her work, the amount of time spent by the practitioner on the matter, the responsibility involved, the amount or value of the subject matter in issue, the responsibility involved, the amount or value of the subject matter in issue, and any costs agreement that might have been entered into."
19 Without questioning what was said in that case we do not consider that the Tribunal was called upon to actually determine, in the particular circumstances of this Reference, what was a reasonable sum to charge in respect of each of the three items, the subject of the Reference. In relation to the first item, the Tribunal clearly found that there was no justification for the appellant travelling to Bunbury for a directions hearing, with the result that the charge of $1500 for so doing was grossly excessive. In relation to the second item, the Tribunal clearly
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- considered the $10,000 charged for preparation was grossly excessive in all the circumstances, particularly as charges had already been made for getting up for trial. Further, $8500 of the $10,000 represented fees for preparation of an opening address and cross-examinations, both of which were unnecessary at that point. In addition, the hours claimed for this work could not have been devoted to the task. In relation to the third item, the Tribunal concluded that no reservation fee was properly claimable. It was thus unnecessary for any assessment to be made by the Tribunal of what would, in the circumstances, have been a reasonable sum to charge.
20 In our view it is not a valid criticism of the Tribunal's decision that it failed first to determine a sum that might reasonably have been charged in respect of each of the three items.
The facts before the Tribunal
21 The facts as found by the Tribunal reveal that one H, of a country town, consulted the firm of C W Marais & Co, barristers and solicitors, Bunbury, in December 1990. He dealt with Mr Carl Marais ("Marais"). The matter was a Family Court dispute in relation to which H was concerned about a property settlement application that he anticipated his wife would make.
22 In due course, Marais was instructed by H to engage and retain an experienced family law barrister. H wanted to take all steps available to him to ensure that he paid the minimum by way of property settlement to his wife. The result was that Marais engaged the appellant who practised in Perth and, on his client's instructions, retained him for the purpose of what he described in an affidavit as:
"… all significant aspects of the Applicant's matter including attending conferences, advising on and considering the evidence, conferring and consulting with witnesses, drawing important documents, drawing court documents and generally preparing the Applicant's case for trial."
23 A written costs agreement was entered into between Marais and H, pursuant to which charges were agreed as between Marais and H. A written request to brief counsel had also been signed by H, pursuant to which H requested C W Marais & Co to brief counsel (the appellant) to advise on issues relating to the family law matter and appear at any hearings or conferences concerning any aspects relating to the matter.
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- The terms and conditions of payment of the appellant's fees were expressed in these terms:
"In consideration for De Pardo's services I agree to pay to you his fees as follows:
(i) $1,500.00 per day or for an appreciable part thereof, for any Court appearance, plus
(ii) $180.00 per hour for each and every hour taken up by him with phone calls, conferences and the like, in addition to the general preparation of my matter for any hearing or conference, including considering and researching any relevant facts or law
I also confirm my understanding and agreement to the effect, that the above hourly rate of charge shall be in addition to any daily Court appearance fee(s)."
"Would you describe this case as involving any degree of complexity? --- Mr [H] made it a very difficult case.
Why was that? --- Because of his demands and the issues that he instructed me to cover at trial, many of which are covered in his letter of instructions to me which you have tendered to this tribunal.
Was there much in the way of documentary evidence that had to be considered? --- When I went to court on this, I took with me my metal trolley and I ladened it with at least two archive
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- boxes of discovered documents which the husband had provided me - possibly even three.
What did those documents relate to? Were they concerned with the financial history? --- Financial matters, and they are set out chapter and verse in the husband's affidavit of documents which I prepared and which is on the Family Court file. I think the affidavit of documents is about 19 pages long."
25 Although counsel for the appellant argued before the Court that this was a case of considerable complexity, we are unable to accept that there is any evidence that this was so. The Tribunal, in its reasons, identified the fact that the only apparent complexity in the case was the refusal of the client to offer more than $150,000 in settlement of his wife's property claim when the appellant was of the view that considerably more than that would be ordered by way of property settlement. We would not take any other view.
26 The first significant step in the proceedings was what the Tribunal termed a "s 24 conference" on 24 February 1993. It appears that such a conference is more accurately described as an "Order 24 conference". The purpose of the conference was to see whether the differences between the parties could be resolved and a trial avoided. At that time, trial dates had already been set (they being set in January) for four days of hearing, beginning 5 March.
27 Prior to the Order 24 conference on 24 February 1993, the appellant performed a substantial amount of work. Somewhat surprisingly, by way of preparation for trial he prepared his opening address and the cross-examination of the wife and a representative of the local council. Prior to that time there had been other "getting up" or preparation for trial, including a charge on 8 February 1993 under the heading "preparation of matter for trial" of $900.
28 The preparation which the appellant undertook between 21 and 24 February 1993 inclusive was charged at $10,000. It included what was described as "preparing issues for property settlement for trial; appearing at Order 24 conference; and negotiations and resolving all issues relating to property settlement".
29 A property settlement was reached at the conference on 24 February 1993, on the basis that H pay to his wife the sum of $125,000. This left outstanding no issues at that time, although on
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- 25 February, when orders were being formalised, the wife's solicitor raised for the first time arguments about access to children of the marriage. The trial, which was due to commence on 4 March, was then limited only to that issue. On the first day of trial on 4 March, the trial Judge directed the parties to confer on the issue. It brought about a ready settlement. Consent orders were made on the afternoon of the first day of the trial, thus resolving all issues.
The Reference before the Tribunal and its conclusions
Item 1 in the Reference
30 The first item in the Reference was a charge made by the appellant of $1500 for attending a directions hearing in Bunbury to make programming orders. This had occurred at an early stage in the proceedings, immediately after H's wife had filed an answer. It was a hearing before a Magistrate in Bunbury and according to the Tribunal, lasted only a few minutes. The taxing officer who later taxed the bill of costs in relation to the proceedings, concluded that the attendance of only a restricted practitioner was required. The Tribunal found there was nothing complex about arranging timetables, which was the purpose of the hearing.
31 At the time the appellant's instructing solicitor, Marais, had only practised for some three years in this State, although he had commenced legal practice some 20 years earlier in South Africa. It was his evidence that he was not experienced in family law matters, having handled only a few family law cases. He had retained the appellant in other family law matters before H's case. In respect of these it was the evidence of the appellant that it was the invariable practice in respect of family law matters in which he was briefed by Marais, that he must do all the directions hearings and conciliation hearings etc. He said there was no exception to that rule.
32 It was Marais' evidence that the appellant had told him that H's matter was beyond Marais' capacity to deal with, because it involved farms and partnerships and trust documents, and that the appellant "should take care of the case and have the running of the case". Further, the appellant, who was also coming down to Bunbury as required for the other matters in which he was briefed by Marais, "always said that he must appear because I – I mean, I stayed in my office when he went to court and I didn't do any of those applications or those appearances". [AB 57-58] [AB 80]
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33 It was in this context that the appellant came to attend the directions hearing in Bunbury. It is not the evidence that he was specifically instructed to travel to Bunbury for the directions hearing by Marais, or that H's authority was sought for him to do this, either by Marais or the appellant. Rather, the appellant, who had "the running of the case", attended at Bunbury apparently in accordance with the standing expectation between Marais and the appellant in respect of matters in which the appellant had been retained. It is not suggested the appellant had any other business in Bunbury that day, although it is the evidence that he did briefly confer with Marais before the hearing and briefly reported to Marais after the hearing.
34 The Tribunal concluded that the charge of $1500 for attendance by the appellant at the directions hearing in Bunbury was both by itself and in the context of all that followed, a gross overcharge. It found:
"It may well be that if a properly informed client insists that a relatively senior practitioner attend such a simple hearing, then the client could perhaps not complain. However, in this case, there is no suggestion that the client was so informed by either solicitor or barrister that it was necessary for the barrister to travel to Bunbury and back for the hearing of a simple nature lasting a few minutes which would lead to the client being charged for a full day in Court.
The barrister told us that he had a conference when in Bunbury and with travel to and from Perth and the conference and the hearing, substantially, a day was used. Even if it can be accepted that travelling time can be charged at $180 per hour, the figure of $1,500 would not have been reached. What is abundantly clear from the papers in evidence is that at that time, the only issue between the parties was the amount to be paid by the client to his wife by way of property settlement and it is not in issue that the programming orders necessary to be made at that hearing were not complex."
35 We can find no basis upon which the Tribunal's conclusions in relation to this item can be seriously challenged. It is apparent that the instructing solicitor or any junior practitioner could have attended the directions hearing in Bunbury. Instead the appellant chose to attend. For this he charged a fee of $1500. To travel from Perth to Bunbury for a directions hearing of merely a few minutes, whether or not associated with short conferences with the solicitor before and after, was, in our
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- view, entirely unnecessary and in charging $1500 for so doing, the appellant rendered what we consider to be a grossly excessive fee. Leaving aside our view on the matter, it is apparent that it was open to the Tribunal to reach the conclusion which it did, namely, that the fee could not be justified and constituted (whether looked at alone or in combination with other factors) a grossly excessive charge.
36 On this Reference, no issue concerning the conduct of Marais arose for decision. It is not suggested that he questioned what occurred. He seems to have merely forwarded the appellant's fee note to H for payment. We say no more about that, nor about the role of the appellant, as a barrister, in the conduct of H's file. However, we are firmly of the view that in these circumstances it was unprofessional conduct for the appellant to travel to Bunbury for a directions hearing for only a few minutes, and which involved no issue of substance or difficulty, and to render the account for the fees that he did in respect of this. One thing is clear: the client was not informed about the requirements of representation at a directions hearing of this nature, nor of the likely fee of the appellant, and he gave no instruction for the appellant to appear. In our view, proper professional conduct by the appellant would have been to require Marais to discuss with the client who should appear at the hearing and the anticipated fees, with a recommendation that Marais or a junior solicitor do so. If the client, fully informed, had insisted that the appellant appear at the hearing, knowing that a fee of $1500 should be anticipated, that would have been a different thing.
37 We consider that the appellant owed an overriding duty to the lay client to ensure that when the question of representation at this simple directions hearing arose, the client should have been fully informed in relation to what level of representation was required. This is even more important when a minor directions hearing is being held at a country centre more than two hours drive from Perth and the practitioner proposes to attend such a hearing and to charge the client in respect of his time for doing so. The overriding duty is a professional recognition of the fact that not every step in legal proceedings requires the attention of a relatively senior barrister and, subject to specific and informed instructions of the client, proper judgment is called for as to what is or is not required on the part of a barrister retained in the proceedings in relation to various steps in them. Here, in the absence of specific and informed instructions, on no view of it, could a barrister with the appellant's experience justify travelling all the way to Bunbury and back for this minor directions hearing. We consider the fee charged by the
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- appellant was grossly excessive in the circumstances and that the Tribunal was justified in reaching that conclusion.
38 The Tribunal also appears to have considered the fee of $1500 to be grossly excessive because of the limited time which would have been involved in travelling to and from Bunbury and attending the brief directions hearing. Because of the limited factual findings recorded in the reasons on matters relevant to this, we prefer to limit our concurrence with the Tribunal's decision to the issue considered above.
The second item
39 The second item the subject of the reference was a fee of $10,000 charged in what the appellant described to the Tribunal as "a hastily prepared bill" which appeared in these terms:
"21, 22, 23 and 24.2.93
Preparing issues of property
settlement for trial
appearing at Order 24 conference
negotiations and resolving all issues relating to property
settlement - $10,000."
40 The Tribunal found that $1500 of the $10,000 fee was taken up by the Order 24 conference on 24 February 1993. That meant that $8500 of the fee was taken up at an hourly rate over the previous three days. This, as the Tribunal found, indicated more than 40 hours on that exercise or, as counsel for the respondent put it, approximately 14 hours a day in preparation. The Tribunal concluded:
"The barrister explained to us that during this time he prepared a detailed cross-examination of the client's wife and also prepared his submissions for trial. This would seem to ignore an earlier item in his bill for 5 hours he claimed on 8 February 1993 under the heading 'Preparation of matter for trial'. This totalled $900. It would seem also to ignore numerous other conferences and considerations set out in the bill and which could loosely be described as 'getting up', which also attracted fees charged at hourly rates or lump sums. It was not made clear to us why on some occasions the practitioner charged for his work on an hourly basis and why on other occasions the daily rate was applied. It also seems to overlook the reason for the compulsory conference under Section 24, which is aimed at getting the parties to settle limit
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- or agree matters prior to the hearing with no doubt one of the objects being to avoid costs."
41 The Tribunal found that this item exhibited a gross overcharge. It said:
"We also find that Item 2, exhibits a gross overcharge of issues that were obviously important but were not unduly complex and did not, at the times indicated or at all, warrant the expenditure of the time claimed at that stage of the proceedings. The charge of $10,000 mentioned in that bill item is not in any way identified in the terms of the agreement prepared by the practitioner."
42 Again, we can see no reason to question the Tribunal's conclusion in relation to this item. It appears to have been entirely unnecessary for detailed preparation of an opening address and cross-examinations to have been made before the Order 24 conference, which was aimed at settling the proceedings, an outcome that is apparently achieved in the substantial majority of cases. Even if it was necessary to begin some work in preparation, there had already been charges for preparation or getting up. Further, it is inconceivable that the appellant could have spent up to 14 hours a day on each of three days preparing merely for the opening address and cross-examinations that he said he did. In our view it was entirely open to the Tribunal to find that this item individually and together with the total picture exemplified a grossly excessive charge.
The third item
43 The third item the subject of the reference was a fee of $4500 by way of a "reservation charge" for three days the appellant lost by reason of the settlement of the proceedings. The Tribunal found that the appellant was entitled under the costs agreement to charge $1500 for the first day but concluded that the balance of $3000 by way of reservation fee was a gross overcharge which had never been agreed to by the client.
44 The Tribunal noted that the appellant claimed in his evidence that he had discussed with Marais the question of a reservation fee and agreement had been reached that such a fee would be chargeable in the event that the trial was resolved without the need for occupying the days set aside for it. The Tribunal observed that the reservation fee found no place in the contract which the appellant prepared for
(Page 20)
- signature by the client and it concluded that this type of charge "is not necessarily a customary charge in the circumstances of the case". This was a conclusion in relation to which the expertise of the Tribunal itself was an important factor.
45 The Tribunal pointed to a conflict in evidence between Marais and the appellant over the circumstances in which it was said by the appellant that agreement had been reached about a reservation fee. In evidence, Marais had testified that the first he knew about the appellant charging a reservation fee was when the case was settled at the Order 24 conference and they had gone outside the court. His evidence-in-chief was as follows:
"MR DAVIES: Mr Marais, did you have any dealings or discussions with Mr De Pardo on the question of a reservation fee and his charging of that? You started to tell us about this before and I ---?--- Yes, that's when we got out of court.
Out of court for what? --- Because we were going home.
Yes? --- He was going to his office and I was going home.
Are you talking about the end of the conference? --- The end of the conference, yes. We were outside the Family Court and he seemed to ---
Tell us what was said? --- Well, he seemed to be upset that the matter had settled and that ---
Perhaps rather than you telling us he was upset, tell us what he said? --- Well, he said, 'The effing C wasted my time and I'm going to charge him 4 and a half thousand dollars for this.'
And in due course did an account for 4 and a half thousand dollars described as a reservation fee arrive? --- Yes, that is so.
…
… was there any discussion between you and Mr De Pardo in relation to the 4 days set aside for trial that he would charge a reservation fee if it did not go on? --- Not in so many words; just that whatever he charged I accepted would be part of what he was allowed to charge.
(Page 21)
- I understand that, but is your answer to my question no, or what is it? --- It is that, no, we did not specifically say, 'If it doesn't go on on the day …'
Did you agree that if it didn't go on, the client would be charged for the days listed? --- Well, yes, I know about a reservation fee and I know about cases, but I agreed - Mr De Pardo and I didn't specifically say that specific cause, 'If that didn't go on for trial so many days, I would charge so much per hour for not being in my chambers,' but we did agree that the client would pay whatever fees that he would send to me.
Did you ever discuss with Mr [H] and get his agreement to paying for days whether they were used in court or not? --- Only on the general acceptance that Mr De Pardo would pay - sorry, Mr [H] would pay Mr De Pardo fees in terms of the accounts that he would render.
Mr Marais, in an affidavit in opposing taxation dated 9 June 1995 - and it's document 8 in the bundle, if it please - did you swear as follows:
The applicant's property and access applications were settled at the door of the court after lengthy and intense negotiations. I had previously arranged with counsel to make himself available for at least 5 days in order to conduct the applicant's trial. I am informed by counsel and verily believe that in having done so he turned away other matters.
Paragraph 2(w), if the tribunal please:
It was therefore agreed with counsel at the time with the applicant's instructions that a reservation fee would apply in the event that the matter did not proceed to trial through no fault of counsel.
Did you swear to that? --- I did, yes.
And is that accurate? --- Well, that affidavit was drafted and settled by Mr De Pardo.
No, let's deal with one question at a time. Is that now your evidence? --- Yes, that - can you just read that section again?
(Page 22)
- Is it accurate that it was therefore agreed with counsel at the time with the applicant's instructions that a reservation fee would apply in the event that the matter did not proceed to trial through no fault of counsel? --- Well, that was agreed when I spoke to Mr De Pardo outside the courthouse that I referred to, that he said, yes, he's going to charge that.
Yes, but that's 5 days before the trial, isn't it? --- Yes."
46 In cross-examination Marais was questioned about the affidavit he had sworn and it was put to him that he had agreed with the appellant well before the Order 24 conference that a reservation fee would apply in the event that the case did not proceed to trial. Marais' testimony was as follows:
"You certainly wouldn't have sworn an affidavit unless you were satisfied that the contents were true? --- Well, it's not the full story because at that stage obviously there ---
Could you answer the question? Would you have sworn an affidavit even if not satisfied that the contents were true? --- No, but I would like to qualify the answer.
Right? --- Can I go ahead.
Go ahead? --- It's at that stage that I knew that there was a problem with this account and that Mr De Pardo's account was being challenged and Mr De Pardo was - I was relying on him to answer these things that affected him in the way he would answer them, and he said to me this affidavit would - it was what we require in this case. So he had the conduct of it. He drafted and settled the affidavit and I relied on his expertise and his …
…
That's not a matter of Mr De Pardo's expertise. That is a matter of you saying what you did, isn't it? --- He told me he was going to charge him a reservation fee and I said, 'Well, if that was the fee you're charging, that's fine.' The reservation fee is allowed by law.
This is not the first time, I take it, that you have come across a reservation fee, as it's called? --- Not the first time, but a few times before - isolated cases.
(Page 23)
- Where a matter has been listed for some days and falls through at a time fairly shortly before the trial is due to start? --- Yes.
You have both experienced and heard of cases where counsel has charged a fee for the days that have been set aside? --- Yes, that was not a problem, and on taxation too a fee was allowed for reservation fee. It was just reduced.
All right. Just to get it clear, you can recall agreeing with Mr De Pardo that a reservation fee would apply? --- Yes.
And when was it that you first discussed the reservation fee with him, that you can recall? --- When we went outside the court there. (Emphasis added)
…
But what I'm asking you is before the conference but after the trial dates had been set for early March, can you recall Mr De Pardo speaking to you in that period about his charging a reservation fee? --- I cannot specifically recall that he said, 'Well, that case is set down. If I don't go to court, all 5 days - you're going to have to pay me for that.' No, I cannot recall that.
Not necessarily all days, but some reservation fee for some of the days set aside? --- From my experience I knew it, but, no, it was not discussed; no, he did not say that.
Are you sure he didn't say it, or is it just that you cannot recall it? --- No, he didn't say that because it was just - a reservation fee is allowed, it's chargeable, but it wasn't discussed that he would charge so much specifically for those specific days, no.
No, not in those terms, but just generally? --- No."
47 The appellant's testimony on the issue of agreement of a reservation fee was as follows:
"I think the trial date for 4 March - the matter was listed for 4 days? --- Yes.
The trial date was given in late January? --- Mid-January, I think.
(Page 24)
- Mid-January, sorry? --- Yes.
After you had been informed of the trial date, did you set aside the days? --- I did, of course.
Having done that, did you at any stage discuss with either Mr Marais or Mr [H] the question of what would happen if not all those days set aside were used? --- After the matter was fixed - and I think I attended to fixing it at the callover - I told Carl Marais, 'Look, at this callover as a consequence of this matter being fixed in this period, I've had to hand back a series of other briefs.'
Was that true that you had done that? --- Of course I did.
What else? --- I said to him, 'In the circumstances I'll do this trial obviously but if it settles, I intend to charge you and [H] a reservation fee because of my foregoing this other work,' and I subsequently had ---
Sorry, what did Mr Marais say to that? --- He said, 'Fair enough.' He didn't have a problem with that."
48 In his evidence-in-chief the appellant claimed to have discussed the matter with H. He said:
"Did you speak to Mr [H] about the matter? --- Certainly before the matter was settled I had canvassed the same issue with Mr [H] and he didn't have a problem with that. I explained to him that I had to surrender other work and he understood at the time the logic of that request.
Did you raise any query with you? --- No."
49 The appellant made the following observations about Marais' claim that the reservation fee was first discussed outside the Court after the Order 24 conference:
"Was anything said by you to Mr Marais at the end of that first day of the conference, that is, 24 February, about the reservation fee that you had spoken of to him previously? --- If I did mention it, it would have been only to refresh his memory and confirm the arrangement that had been put in place.
(Page 25)
- But do you have any specific recollection of saying anything to him about that after the conference? --- No, you see, there was no point. I mean, the property had been settled, as we all know, but contact became a live issue and what the court did was to allocate the trial date for property, which I think was the 4th - allocate that time to the new issue, being the contact issue. So the matter wasn't over at all. It was still very much alive in one form or another."
50 In cross-examination, the appellant acknowledged that there was no written agreement with the lay client in relation to a reservation fee, but still maintained that the matter had been discussed with him. He said:
"Did it occur to you to get his written acknowledgement of agreement to the payment of a reservation fee? --- No, it didn't.
Why not? --- I had sent this client two accounts in the past. He had paid them. I thought he - I didn't see the need for it, Mr Davies.
But you have said that it was important to get his agreement to it in advance? --- I have agreed with that proposition.
Because it would be unusual in the extreme to charge a reservation fee out of the blue without prior agreement by the client, wouldn't it? --- Well, youcouldn't do it. (Emphasis added)
I'm asking you? --- Perhaps you might want to restate the question you want me to answer again.
All right. It would be unusual to claim a reservation fee without your having first in advance have the client agree that there would be a reservation fee if the trial did not proceed? --- that's so.
And it would be important, would it not, to have his agreement - that is, the client's not the solicitor's - acknowledged in writing? --- No, I think the important aspect as far as I'm concerned is that Mr Marais agreed to those terms.
(Page 26)
- But you have already said it's important to have the client agree? --- It's important they both agree (emphasis added), but as far as I'm concerned as counsel it's my instructor who's obligated to me, not the client so if Mr Marais agrees, really anything beyond that is unnecessary, although I did mention it to Mr [H].
Yes, why? If it's not important, why? --- Why not?
I beg your pardon? --- Why not? Of course I mentioned it to him.
Why? --- Because it's not something you just don't walk around and don't about.
I see; well, there is no doubt that some time in January the client had verbally to you agreed to the payment of a reservation fee in the unlikely event that the trial did not proceed. Is that right? --- The client agreed some time after the callover to meeting a reservation fee in that event.
Did you explain it to him? Did you say, 'Look, this means that - you know, you understand if it doesn't go to trial, you're going to be paying for the days set aside anyway'? --- I explained it to him in these terms, Mr Davies: that is, I had to refuse other work in order to do his trial and if in doing his trial there was a settlement and as a consequence of that I was out of pocket, I would look to him to pay a number of days when I wasn't in course as a consequence of that settlement."
So you explained to him perfectly clearly that in the event that the matters settled he would be paying for days although you had not spent them in court? --- I explained it to him just as I put it to you a minute ago.
Yes, that is what you have just said, isn't it; that you explained to him that if the matter were settled, he would be asked to pay for days that were set aside but not spent in court? --- That's so.
So there would be no reason for any sort of outburst after the matter was settled saying, 'This bloke's mucked me around. I'm going to charge him for the days thrown away.' There would be no need for you to engage in any outburst at that late stage saying, 'This bloke' - I'm leaving out the colourful
(Page 27)
- words - 'has mucked me around. I'm going to charge him 4 and a half thousand dollars' or 'I'm going to charge him a reservation fee.' There would be no reason whatever for you to say that to Mr Marais if it had all been well agreed in advance, would there? --- No, and it was never said.
You deny that you said it? --- I deny using that expletive, I deny that the case was settled after the order 24 conference in any event and I deny that it was ever said because the matter hadn't been finalised at that stage, Mr Davies.
Well, it was finalised but for access? --- Mr Davies, the matter was not finalised. The matter was set down for trial on the 4th of the following month, or whenever it was, on the question of defined contact."
51 There was before the Tribunal a letter from the appellant to C W Marais & Co dated 5 March 1993 with which the appellant enclosed his final account. In the course of that letter he said:
"I have prepared my further account which I now enclose. I must point out that when the trial date was fixed (14.1.93), I had set aside four days in order to be able to appear for your client at trial. Since then I have refused other work for the same period. Given the full circumstances relating to this matter - particularly the excellent result which I have achieved on behalf of your client - I think it not unreasonable or inappropriate to charge a reservation fee for two days lost to me due to the early settlement.
It goes without saying that I expect your client to make full payment of my account within 30 days."
- The appellant was cross-examined on this to the following effect:
"Exhibit 3; and when you wrote that letter, you were of the view that the question of a reservation fee had been well and truly agreed by the client? --- Indeed.
And it was your view that that was an important fact, that you had obtained in advance the agreement of the client? --- I have indicated to you that most important in my mind was the agreement of my instructor which I had clearly obtained and that I had mentioned it to Mr [H] who appeared to understand what I was saying and to which he agreed.
(Page 28)
- Well, then why did you write this to Mr Marais:
I must point out that when the trial date was fixed (14/1/93) I had set aside 4 days in order to be able to appear for your client at trial.
Why was there any need to point that out to Mr Marais if it had been well and truly discussed and agreed? --- Because that documented the arrangement agreed in writing.
Right:
Since then I have refused other work for the same period. Given the full circumstances relating to this matter, particularly the excellent result which I have achieved on behalf of your client, I think it not unreasonable or inappropriate to charge a reservation fee for 2 days lost to me due to the early settlement?
--- That's so.
Now, there is nowhere in that any suggestion that it had been agreed. It doesn't say, as one might expect, does it, 'I'm not charging the reservation fee that was agreed to by you and explained to the client.' It doesn't suggest there has been an agreement, does it? --- It doesn't refer to the agreement.
It tells him, on the face of it, for the first time that that's what you're going to do? --- The first proposition that you put to me is wrong."
52 On the face of it, this letter is a compelling indication that the question of a reservation fee was an afterthought by the appellant and was not written in furtherance of an existing agreement with Marais, one in which H had concurred. Had the appellant believed on 5 March 1993 that there was already in place an agreement in relation to a reservation fee, it would have been completely unnecessary for the appellant to have sought to justify, as he did in his letter of 5 March 1993, the reservation fee on the basis that he had been caught out by the sudden resolution of the matter in circumstances where he had refused other work for the same period.
53 H testified before the Tribunal that he was never told by the appellant anything about a reservation fee. He said:
(Page 29)
- "… when the proceedings were afoot did anyone ever raise with you the question of charging of reservation fee regardless of whether the proceedings went ahead or not? --- No, never.
By anyone, I include Mr De Pardo and Mr Marais. Did either of them ever raise with you and seek your agreement to the payment of a reservation fee regardless of whether the matter went to trial? --- No, never.
What was the first you knew that one was being charged? --- The first occasion I realised one was being charged was when I received the statement of accounts following the situation - the event.
You have told us of your understanding now with what has happened since, Mr [H], but at the time you received it, did you as a layman have any understanding of whether it was normal or not normal, required your agreement or did not? --- No, I had no understanding of that at all."
54 H's evidence in cross-examination on the subject was unchanged.
"… do you recall him explaining to you that if the trial didn't take place or didn't run the length of time that it was listed for, he would be charging you a reservation fee? Do you remember discussing that? --- No, I can't recall any of that.
Do you recall him saying something about making a charge for the days set aside, or some of the days set aside, if they weren't used for some reason? --- No.
When you say 'no', are you saying, 'I just can't recall that being said'? --- I have no recollection of it being said.
But it may have been said? --- It may have been, but I have no recollection of it.
As you say, the full impact of that really didn't hit you until you got the account? --- Yes.
Mr Marais also - before the conference, did he speak to you about this reservation fee? Do you recall? --- No, not that I'm aware.
(Page 30)
- Did he speak to you about it after the conference? --- No.
Are you saying 'no' in saying that he just didn't do it or just you can't recall? --- I can't recall, but I know that it's more than just that I can't recall. I don't believe that he did.
So with Mr Marais you don't believe that he did. With Mr De Pardo he may have but you can't recall. Is that a fair summary? --- No, I really believe that - I can believe - I'm not aware that Mr De Pardo did either, like, in the same way that I say it of Mr Marais. I cannot recollect it, but I also make the same comment about Mr De Pardo as I did of Mr Marais."
55 The appellant contended in cross-examination that H was wrong about this:
"Mr [H]'s evidence that the first he knew about it was when it arrived in the bill is wrong? --- He's wrong."
56 In its reasons the Tribunal dealt with this material and the direct conflict between the evidence of H and the appellant by accepting the evidence of H and not that of the appellant. It said:
Against the background of this evidence the Tribunal concluded that in all the circumstances it found it difficult to accept that Mr Marais had agreed with the appellant that the reservation fee should be paid. It concluded:
"What is patently clear is that the client was not consulted and certainly did not give an informed or any consent to such a payment. It was never part of the agreement which was prepared by the barrister for the lay client's signature. It is clear that the barrister had the complete running of this action, undertaking work normally done by a solicitor in addition to his work as a barrister and that Mr Marais simply produced to the lay client his own bills and the bills which the barrister sent to him. We find that the lay client, without an understanding of any redress he may have, simply paid them. … The lay client much later sought independent legal advice.
We find, in all the circumstances, that the charge for a reservation fee of $3,000 was a gross overcharge which was never agreed by the client."
57 With respect to the conflict between the evidence of the appellant and Marais, and the internal difficulties with the evidence of Marais, the Tribunal noted that a charge in the nature of a reservation fee "… finds no place in the contract which the barrister prepared for signature by the lay client". The Tribunal went on to note the effect of the evidence of Marais, including what had been said by Marais in the affidavit, and
(Page 31)
- described the effect of his evidence to the Tribunal in that respect in the sentence:
"Mr Marais told us that this affidavit was prepared by the practitioner, but he was quite adamant that he had not agreed, but had simply been told that this would occur."
59 The Tribunal then canvassed the evidence of the appellant, noting in particular his answer:
" … that the 'reservation fee' was agreed both before and after the terms of property settlement we (sic were) agreed." (emphasis added)
- The Tribunal then commented –
"However, his letter to Mr Marais dated 5 March 1993 makes no mention of a prior agreement. He said:
'I have prepared my further account which I now enclose. I must point out that when the trial date was fixed (14.1.93), I had set aside four days in order to be able to appear for your client at trial. Since then I have refused other work for the same period. Given the full circumstances relating to this matter – particularly the excellent result which I have achieved on behalf of your client – I think it not unreasonable or inappropriate to charge a reservation fee for two days lost to me due to the early settlement.'
In all the circumstances, we find it difficult to accept that Mr Marais agreed with the barrister that this fee should be paid."
(Page 32)
- record permits, we would not be persuaded to a different view from that expressed by the Tribunal.
61 It will be obvious that there are aspects of the evidence in this case which give grave cause for concern particularly as to the way in which the responsibility to H, of both the appellant and Marais, in respect of professional charges was approached. It was the case that the appellant, as the draftsman, had full knowledge of the terms agreed between H and Marais for the payment of the appellant's fees. The appellant well knew that no provision for a reservation fee was made when he was retained and, on the finding of the Tribunal, no reservation fee was agreed between the appellant and Marais at any time before the Order 24 conference on 24 February, or thereafter. The appellant was in the unusual professional position, as a barrister, of having "the complete running of the action". He well knew that Marais simply forwarded his fee notes to H for payment.
62 A situation is revealed, therefore, that having been instrumental in securing a good financial outcome for H in the family law proceedings, and finding that only one of the four days set aside for the hearing was to be utilised, the applicant proposed in his letter of 5 March 1993 that he should charge for three of the four days, stressing the "excellent result" he had achieved and suggesting it was "not unreasonable or inappropriate to charge a reservation fee for two days lost to me due to the early settlement". Clearly, Marais ought to have taken a different position in the circumstances, but that is beside the essential point. In our view, to render an account for fees which included $3000 for a reservation fee, in these circumstances, was unprofessional conduct in that it constituted gross overcharging, there being no basis upon which such a fee could properly be charged.
63 This was the view reached by the Tribunal. We take the same view. I accept the submission of Mr Davies QC, counsel for the respondent, that the Tribunal effectively found, as a fact, that there had been no agreement between the appellant and Mr Marais in relation to payment of a reservation fee. The evidence before the Tribunal certainly supported such a conclusion, particularly the content of the letter from the appellant to Mr Marais dated 5 March 1993.
Conclusion
64 We conclude that the Tribunal was entitled to reach the view that each of the three items the subject of the reference constituted gross overcharging and that individually, and together, this in turn amounted to unprofessional conduct. In reaching this conclusion we have given weight to the fact that the views of the members of the Tribunal are views of a specialist tribunal appointed pursuant to the provisions of the Act and which may properly be accepted as well equipped to evaluate what is, or is not, proper professional conduct within the legal
(Page 33)
- profession of Western Australia. In respect of that we would have taken the same view in any event. In addition, we have concluded that there was ample evidence before the Tribunal to justify its finding in respect of each of the three charges that the fees in question were grossly excessive on any view of the matter. For these reasons we would dismiss the appellant's appeal.
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