Legal Practitioners Complaints Committee and Gandini

[2006] WASAT 163

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and GANDINI [2006] WASAT 163

Last Update :03/07/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 163
Published:
Act:	LEGAL PRACTITIONERS ACT 1893 (WA)
Case No:	VR:238/2005, VR:239/2005, VR:240/2005	Heard:	21 JUNE 2006
Coram:	JUSTICE M L BARKER (PRESIDENT), MR D R PARRY (SENIOR MEMBER), MS B HOLLAND (SESSIONAL MEMBER)	Delivered:	22/06/2006
No Pages:	18	Judgment Part:	1 of 1
Result:	Applications VR 238, 239 and 249 of 2005 dismissed. No orders as to costs, save that the practitioner is to pay the costs of the disbursements of the Committee in the order of $452.63.
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PRACTITIONERS ACT 1893 (WA) CITATION : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and GANDINI [2006] WASAT 163 MEMBER : JUSTICE M L BARKER (PRESIDENT)

MR D R PARRY (SENIOR MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)

HEARD : 21 JUNE 2006 DELIVERED : 22 JUNE 2006 FILE NO/S : VR 238 of 2005

VR 239 of 2005
VR 240 of 2005

BETWEEN : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

Applicant

AND

LEONARD GANDINI
Respondent

Catchwords:

Professions - Legal Practitioner - Legal Practice Act 2003(WA) - Legal Practitioners Act 1893 (WA) - "Unprofessional conduct" - Whether legal practitioner retained by client on "no costs" basis - Whether legal practitioner improperly later raised account for costs - Whether legal practitioner improperly refused to transfer file to new solicitors of client except on conditions - Turns on own facts

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Legislation:

Legal Practice Act 2003 (WA)
Legal Practitioner Act 1893 (WA)

Result:

Applications VR 238, 239 and 249 of 2005 dismissed. No orders as to costs, save that the practitioner is to pay the costs of the disbursements of the Committee in the order of $452.63.

Category: B

Representation:

Counsel:

Applicant : Mr R Davies SC
Respondent : Mr I Viner SC

Solicitors:

Applicant : Minter Ellison
Respondent : Fiocco's Lawyers

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1939) 60 CLR 336
Legal Practitioners Complaints Committee and Bragg and Monaco [2005] WASAT 217
Legal Practitioners Complaints Committee and Williams [2006] WASAT 108
Medical Board of Western Australia and Roberman [2006] WASAT 152
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Physiotherapists Registration Board of Western Australia and Lipscombe [2005] WASAT 314

Case(s) also cited:


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Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Tribunal was not satisfied on the evidence that a client retained the firm Chapmans simply on a "no costs" basis and so dismissed three allegations of unprofessional conduct made against the practitioner.

2 However, the Tribunal drew attention to the need for the practitioner to ensure that his firm's practice in relation to costs arrangements with clients be improved.

Issues

3 The Legal Practitioners Complaints Committee (Complaints Committee) makes three allegations under the Legal Practice Act 2003 (WA) of unprofessional conduct contrary to the standards set out in the Legal Practitioners Act 1893 (WA) against Mr Gandini (the practitioner):

• That the practitioner was guilty of unprofessional conduct between on or about 22 November 2000 and August 2001 by misleading his client in that he represented to the client that he would act for her at no cost in the client's workers' compensation claim but the practitioner subsequently raised an account for legal costs and disbursements.

• That the practitioner was guilty of unprofessional conduct in or about August 2001 when, having accepted instructions from the client to conduct her workers' compensation claim at no cost to the client, the practitioner, during the currency of those instructions, unilaterally varied the retainer.

• That the practitioner was guilty of unprofessional conduct in or about November 2001 when he improperly claimed a lien over a file relating a workers' compensation claim by his client. The practitioner's retainer with the client is that he would act on the claim at no cost to the client, but the client subsequently requested that the practitioner cease acting for her and transfer her file to another solicitor and the practitioner declined to transfer the file.

(Page 5)

Primary facts

4 The material facts relating to the allegations are as follows.

5 At all material times, the practitioner practised as a sole practitioner and his main area of legal work was plaintiff workers' compensation and personal injuries claims.

6 The practitioner's main source of referral of such work was from trade unions which referred their members to him.

7 The trade unions had agreed with the practitioner to refer their members' workers' compensation and personal injuries claims to him on the basis that he would recover any legal costs and disbursements incurred by handling a union member's claim, from the insurer of the union member's employer at the conclusion of the claim and at no cost to the union member.

8 The practitioner structured his practice into:

(1) a free of cost workers' compensation advisory service, known as Union Workers' Compensation Services (UWCS) designed to provide union members with initial guidance and advice on workers' compensation claims to attend WorkCover conferences and to refer claimants for legal advice;

(2) a legal firm practicing under the name "Chapmans" providing full service legal advice and attending to all such tasks as may be necessary in the handling of plaintiff workers' compensation and common law personal injury claims.

9 UWCS and Chapmans operated from the same business premises and shared a common post office box number, although they had different telephone and facsimile numbers.

10 UWCS was staffed by clerks employed by the practitioner.

11 At all material times, the client was a financial member of the Australian Workers Union (AWU) and desired to obtain advice and then pursue a workers' compensation claim.

12 In about October 2000, following an injury suffered by the client, the AWU referred the client to the UWCS.

(Page 6)

13 Following the referral, UWCS wrote to the client on 22 November 2000 advising, amongst other things, that:

"The UWCS provides a free workers' compensation service to members of affiliated unions … your union is affiliated with the UWCS …

UWCS is a service provided by Chapmans Barristers and Solicitors, and therefore ensures that availability of immediate legal service is necessary for workers compensation claims and for legal services to enable proper compensation for personal injuries arising out of work…"

14 In about February 2001, UWCS determined that the client needed legal advice and wrote to the client on 6 February 2001 advising, amongst other things, that:

"… We confirm that you will require legal advice from of the Solicitors in regards to the progress of your claim.

We have therefore referred your file to Chapmans Barristers and Solictors for consideration and advise that they will contact you to make an appointment with one of their Solicitors.

As with the UWCS, Chapmans' services are provided at no cost to financial members of the AWU."

15 Thereafter Chapmans acted for the client with respect to her workers compensation claim.

16 By letter dated 29 August 2001, Chapmans advised the client that, in contemplation of the "forthcoming/current settlement discussions/conference", amongst other things:

"13. The costs of the legal services provided to you will be covered by the insurer if you are a financial member of the Union that initially referred you to our office at the time of settlement. However, you may be responsible for any GST incurred with respect to those legal fees."

17 Not long after this letter was written in September 2001, the client chose to terminate the services of Chapmans and consult another firm of solicitors. At that point, Chapmans received a request from the other solicitors to transfer the file. Two things then happened: (Page 7)

• The practitioner rendered a tax invoice to the client in the sum of $4000 exclusive of GST for work done in relation to the file.

• The practitioner requested an acknowledgement and authority be executed by the client before the practitioner would transfer the file.

18 That acknowledgment and authority amongst other things provided that -

"(a) I acknowledge I am indebted to Chapmans for my legal fees and disbursements in the sum of $4000…

(b) To authorise my new solicitors to immediately pay to Chapmans the sum of $4000 from such monies received by me…"

19 On 19 November 2001, the client executed the acknowledgement and authority in favour of the practitioner.

Other evidence

20 The client said that she had no alternative in the circumstances but to sign the acknowledgement and authority by reason of her desire to have new solicitors handle her file. She was adamant that apart from the references to "costs" in the letters she received, she was never informed of the costs arrangements that the practitioner later claimed formed part of his retainer to act for her.

21 The practitioner says that all material times, employees of UWCS and employees and solicitors engaged by Chapmans well understood the philosophy that underpinned the professional services provided by Chapmans, namely, that the firm was endeavouring to provide a low cost service to union members with workers' compensation and common law claims and to achieve that outcome, operated on the basis that it would only receive by way of legal costs, such costs as insurers, who were obliged to indemnify organisations against which clients could make claims, were prepared to pay as part of a settlement of a claim towards the client's legal costs and expenses.

22 In support of the practitioner's statement as to the philosophy of the firm, and its policy in advising clients that the only cost that would be charged would be recovered in that way from insurers, the practitioner called:

(Page 8)

• Mr Michael Llewellyn, Assistant Branch Secretary of the AWU in 2001/2002 at material times.

• Ms Renay Sheehan, the solicitor, who, at material times was employed as an articled clerk at Chapmans.

• Ms Elaine Bridges, a paralegal employed by Chapmans at material times.

• Ms Rebecca Sorgiovanni, a solicitor employed by Chapmans at the material time in late 2001 when the bill of costs in question was prepared and forwarded to the other solicitors on the transfer of the file to them.

23 The Complaints Committee called the client to give evidence of the circumstances in which she retained Chapmans to act for her in relation to her workers' compensation claim.

24 The client explained that, having been injured in a work accident at Port Hedland (in her statement she said at Newman) on 17 October 2000, she was then flown to Perth where she was hospitalised. When she was discharged from hospital, she resided with her mother in Serpentine. She then approached the AWU because she understood the union assists workers. She spoke to Mr Llewellyn, became a financial member of the AWU and was referred to UWCS.

25 The client says Mr Llewellyn quickly ascertained at her meeting with him, that the weekly payments by way of workers' compensation she was then receiving were not enough. She says he rang UWCS and told them what she should be paid and then said to her: "There's your lawyers". She says she asked him how much this would cost and he said that: "It doesn't matter whether you're there for five minutes or five years, it'll cost $876". She then signed up as a union member.

26 The client now seems to accept that she might be wrong about the advice that it would cost her "$876". This seems to be the figure of weekly payments that she subsequently received when earlier she had only been getting in the region of $650.

27 The Tribunal finds that Mr Llewellyn did not in fact quote any figure that the UWCS would charge or that Chapmans would charge in that sum or any other sum.

(Page 9)

28 Subsequently, after the AWU passed the client's particulars onto UWCS, the client received the letter dated 22 November from UWCS which, amongst other things, told her that UWCS "provides a free workers' compensation service to members of affiliated unions".

29 In December 2000, there had been correspondence passing between the Director of Conciliation and Review (WorkCover) and UWCS. There was a conciliation hearing on 29 January 2000. A male and a female employee of UWCS (or Chapmans) accompanied the client to that meeting. The Tribunal accepts that these people were probably engaged by UWCS so far as the divisional structure of UWCS and Chapmans was concerned. In a practical sense, all employees of UWCS and Chapmans were under the direction of the practitioner. UWCS was not separately incorporated or even a separately registered business name at the time and for all professional purposes formed part of the practitioner's business and subject to his direction, as he accepted when he gave evidence.

30 On 20 January 2001, the client received a letter from UWCS regarding the correct payment of compensation. This reported that for the first four weeks she was meant to receive $872 gross and from the fifth week and there afterwards was to receive $850 gross per week.

31 Even though the client seems to have thought that Mr Llewellyn largely resolved the weekly payments issue when she first saw him, it is clear enough that UWCS dealt with the relevant issue and WorkCover primarily assisted in rectifying the payment issue for the client.

32 As noted earlier, on 6 February 2001 UWCS advised the client that her claim had been referred to Chapmans. As also noted, the last paragraph of the letter read:

"As with UWCS, Chapmans' services are provided at no cost to financial members of the AWU."

33 About this time, it appears that Ms Sheehan from Chapmans became involved in the matter. By letter dated 9 February 2001, the client was told about a telephone conference to be held on 22 February 2001 with her. The client says that on 22 February she spoke with Ms Sheehan by telephone about her claim. The client made some notes in her diary and is sure that the contact was by telephone. She says she was then advised that any common law case would need to be commenced by "May/June". The client said other matters were discussed but not costs. She seems to have based her evidence primarily on the fact that there was no reference to costs in her diary entry of the telephone conversation.

(Page 10)

34 Ms Renay Sheehan, who is now a certificated solicitor, having been admitted to practice law in Western Australia in April 2001, not long after these particular events - gave evidence to the Tribunal. She could not clearly recall whether she met the client face to face or only by telephone - or both. She had a recollection that she met the client face to face. At best it was hazy. It is not clear on the evidence before the Tribunal whether Ms Sheehan actually met the client face to face, although there is no doubt she spoke with the client. There is a handwritten note, apparently made by Ms Sheehan, of a telephone conversation with the client on 22 February 2001 in which she explained the workers' compensation claim versus a common law claim as well as some other matters. There is no reference in the note made by Ms Sheehan of having mentioned the costs position to the client.

35 However, Ms Sheehan was adamant in her evidence to the Tribunal that in the first consultation with a client it was usual practice to explain broadly the workers' compensation system in Western Australia, advise the client of milestone dates in the claim, advise the client of the cost structure of the firm and when payment would be sought - namely at the time the settlement was being negotiated with the insurer - recording information relevant to the client's claim and offer broad advice without progressing the claim.

36 Ms Sheehan said that in relation to the cost structure and recovery by the firm, clients were advised that costs would be recovered if and when the claim settled and would be sought from the insurer at that time. Furthermore, the amount would depend on the amount of work undertaken by the firm to that point.

37 Ms Sheehan believed she had followed her usual practice in her consultation with the client.

38 What then seems to have happened is that a number of letters were generated by Ms Sheehan, on behalf of Chapmans. On 7 March 2001, a letter went to the AWU advising that Chapmans was now assisting the client. On 9 March 2001, Chapmans, through Ms Sheehan, wrote to the client concerning her injury and claim, confirming that in all likelihood she had entitlements both under the workers' compensation and common law systems and advising that the firm had lodged an application with WorkCover to seek payments for outstanding medical expenses, and also regarding the adjustment of the weekly rate of compensation as agreed at a recent WorkCover conciliation. The client was also advised to discuss all aspects of any return to work or rehabilitation with her general

(Page 11)

practitioner. The letter went on to provide other detailed information. However, the letter did not mention the costs structure or the cost recovery position.

39 On 9 March 2001, on behalf of Chapmans Ms Sheehan also wrote to CGU Insurance, the insurer of the firm that apparently employed the client, requesting various medical reports, particulars of workers' compensation payments and details, a schedule of statutory allowances and copies of claim forms and statements signed by the client. The letter also requested an urgent adjustment of the client's weekly rate of compensation as agreed at the WorkCover conciliation.

40 A further conciliation conference had apparently been set down by WorkCover for 11 April and by letter from Chapmans to the client dated 15 March 2001 that conference was brought to the client's attention.

41 Soon after this, Ms Sheehan obtained alternative employment and ceased handling the file. The client was advised by letter to direct inquiries to Ms Sheehan's secretary in the first instance.

42 Further correspondence went to the client on 20 March 2001.

43 In early April 2001, the client was advised that the file had been allocated to Ms Suzan Brand, solicitor, for ongoing conduct of it. Other persons at Chapmans were also mentioned who might be able to assist the client if she were telephoning.

44 Notes on the file in April show contact by the client with the firm. Notes on the file made by Ms Brand dated 19 April 2001 record a telephone attendance upon the client and in particular, dealt with the question of obtaining further medical advice. A further telephone attendance note made by Ms Brand on 23 April dealt with the same topic.

45 By letter dated 13 June 2001, Ms Brand on behalf of Chapmans, wrote to the client concerning a WorkCover conciliation conference which had been held on 11 June 2001. The question of medical progress and also surveillance video footage, was raised in that letter. This letter referred to a discussion that Chapmans would negotiate a settlement on behalf of the client which would have a Sch 2 lump sum payment based on a permanent percentage disability. The letter indicated that it would be likely a settlement would be on the basis that included "our legal costs".

46 On 2 July 2001, the client, accompanied by a person employed by Chapmans, looked at the video surveillance footage.

(Page 12)

47 On 22 August 2001, the client attended another WorkCover conference with a person from Chapmans.

48 On 29 August 2001, the client attended at Chapmans for a meeting with Ms Suzan Brand. The client says that costs were not discussed on this occasion and that the reason for the meeting was that she could not understand why Chapmans did not want to meet with her. She wanted to tell them about her accident and that in fact she had injured herself in a manner different from that set down in the original claim forms. The client also says she was concerned to meet the solicitors, because the other representative of the firm with whom she had attended a WorkCover conference had told her not to worry about seeking a settlement because the longer she was on workers' compensation the better, and she did not think this sounded right. The client says she did not recall discussing a lump sum settlement with Ms Brand. Ms Brand was not called to give evidence. Her note made on 29 August records various things including a possible lump sum of $30 000 - $50 000. It is unclear exactly what was discussed by Ms Brand with the client that day.

49 However, by letter dated 29 August 2001, Chapmans by Suzan Brand wrote again to the client setting out the implications of any settlement. Paragraph 13 of that letter then made reference to "the costs of legal services provided to you will be covered by the insurer, if you are a financial member of the union… However, you may be responsible for any GST incurred in respect of those legal fees".

50 Following that, further reviews were set down in WorkCover for 26 November 2001. Chapmans wrote by letter dated 10 September 2001 advising the client of this. Other letters about her matter went out soon after to the client. The client was also advised by letter dated 14 September 2001, in effect, that Ms Brand would cease to have the conduct of the file and that the file had been reallocated to Ms Sorgiovanni, solicitor, with the day to day conduct of the file assisted by another (non­-legal) member of the firm.

51 It seems that in September, it is not clear exactly when, the client then decided to consult another firm of solicitors in respect of her matter. On 19 September 2001, she signed an authority at the office of the new solicitors to authorise them to act.

Key issue

52 In determining the matters alleged against the practitioner, the key issue is whether the client initially retained Chapmans in early 2001, only

(Page 13)

on the basis that they would provide to her a "no cost" service as explained in the letter from UCWS dated 6 February 2001; or whether that "no cost" service was further explained to the client to be one where the insurer would meet her legal costs and a sum would be agreed at about the time a settlement of the claim was negotiated.

53 On the one hand, the client says that she was never told anything by any employee or solicitor employed by the practitioner concerning the concept that her legal costs would be covered by the insurer at the time a settlement was negotiated. At least she did not initially have that understanding.

54 In cross-examination and in answer to further questions by the President of the Tribunal, the client made it clear that by the time she consulted the new solicitors and instructed them to act in place of Chapmans, she knew Chapmans would be entitled to receive legal costs for acting for her which would be paid for by the insurers and that this payment would not come out of her settlement costs. She indicated that she had gained that understanding from the letters that she had received - being at least that of 29 August, although she seemed also to suggest that her understanding may have arisen from the earlier letter of 13 June 2001.

55 Consequently, when the client signed the various authorities given to her by the other solicitors and the acknowledgement document required by Chapmans, she believed that when her case was settled by her new solicitors, the insurers would pay their costs incurred on her behalf.

56 The client was also adamant that she had been told by Mr Llewellyn from the AWU when she first met him following her hospitalisation in Perth, that her "solicitors" would provide an inexpensive service to her - for the sum of $876, although as noted earlier she later accepted that the sum may have been a reference to weekly payments - regardless of what was involved in acting for her.

57 Against the client's evidence, firstly is the evidence of Mr Llewellyn that he advised the client no such thing. Mr Llewellyn explained the background to the arrangements made between the AWU and the practitioner. It was clearly understood that Chapmans were prepared to assist the members of the union on the basis that the firm would be prepared to take whatever legal costs were offered at settlement by insurers, and not charge any additional fees to a client. However, it was also understood that, if a client, for some reason, decided in the course of a matter to change solicitors, that Chapmans should not be disadvantaged

(Page 14)

and that if such a move were made, Chapmans would be entitled, at that point, to charge the client for their reasonable costs.

58 Mr Llewellyn said that he made it very clear to all union members he referred to UWCS or Chapmans that this was the arrangement, namely, that the legal costs would be met by the insurer at the time of settlement but if they were to change solicitors before then, they would be responsible for Chapmans' costs.

59 While Mr Llewellyn could not recall a particular meeting with the client, he accepted that he saw her. He was very clear that his usual practice was followed in advising her about the cost position with UWCS and Chapmans.

60 Equally, Ms Sheehan was sure that she followed the usual practice of the firm in advising the client of the costs position, even though she made no particular note of it and did not confirm the arrangement in writing in her correspondence to the client at the time.

Tribunal's findings

61 In the event, the Tribunal is not satisfied by the evidence that the practitioner's firm was retained simply on the basis expressed in the letter form UWCS dated 6 February 2001 to the client that: "Chapmans' services are provided at no cost to financial members of the AWU", without any other explanation.

62 In dealing with conflicts of evidence or apparent conflicts of evidence in relation to an issue like this and evaluating the evidence in vocation proceedings such as these, the Tribunal usually applies what is called the Briginshaw approach see: Briginshaw v Briginshaw (1939) 60 CLR 336.

63 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171- 172; 110 ALR 449 at 450, Mason CJ, Brennan, Deane and Gaudron JJ explained this approach when they observed:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud [footnote omitted]. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus,

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authoritative statements have often been made to the effect that clear [footnote omitted] or cogent [footnote omitted] or strict [footnote omitted] proof is necessary 'where so serious a matter as fraud is to be found' [footnote omitted]. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [footnote omitted] and the judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

64 The Tribunal has, as have former adjudicators, consistently applied this approach in the context of vocational or disciplinary inquiries where serious allegations of professional or occupational misconduct have been made and the reputation of a person or their capacity to engage in their registered livelihood is at stake. Examples of the application of the Briginshawapproach in this Tribunal may be found in Legal Practitioners Complaints Committee and Bragg and Monaco [2005] WASAT 217; Legal Practitioners Complaints Committee and Williams [2006] WASAT 108; Physiotherapists Registration Board of Western Australia and Lipscombe [2005] WASAT 314.

65 Thus it is conventionally said in proceedings such as these that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation against a person has been made out.

66 On the particular evidence before the Tribunal, we do not have that reasonable satisfaction that the client was not given a more complete understanding of the cost structure and the cost recovery upon which Chapmans would act for her. The nature of the client's evidence and the evidence of Mr Llewellyn and Ms Sheehan have led us to this position.

67 While the client insists she was told nothing about costs when she first consulted the union official, Mr Llewellyn was quite clear that he always followed his usual practice, and in this case did not fail to tell the client the position. We further find that it is plainly the case on the evidence that Mr Llewellyn did not tell the client that the fee would be $876.

(Page 16)

68 The fact that the client could be confused about such a matter leaves us, in the light of Mr Llewellyn's evidence, in some considerable doubt as to the accuracy of the client's overall recollections of her meeting with him and what was said on this; as well as on other occasions.

69 Similarly, we are left in doubt following the evidence of Ms Sheehan, that she always ensured the client was informed about the costs structure, that the client's recollections are complete. Again, while the client is adamant she was told nothing about costs in these terms, we cannot be satisfied that this was necessarily the case.

70 Moreover, the client frankly admits that, at least from about August and certainly at the time when she consulted her now solicitors in September, she had a clear understanding that Chapmans would be paid legal costs for acting for her by the insurers at the time of settlement.

71 In the light of all the evidence, we are left uncertain as to exactly when it was that the client first became aware of that position in relation to the terms of her retainer with Chapmans. While the client says it did not come to her attention until later, when she received letters from the firm, to which we have made reference, having regard to the whole of the evidence we simply are not satisfied that this was the case.

72 In all of the circumstances, while the Tribunal is not positively satisfied that Chapmans was retained on the basis that Mr Gandini has asserted in his response to the allegations made against him, equally we are not satisfied on the Briginshaw approach that the retainer contended for by the Complaints Committee is a conclusion we can correctly and justly arrive at. It follows that the Committee's case against Mr Gandini has not been made out.

73 In those circumstances, we would dismiss the allegation made in VR 238 of 2005, because the evidence does not enable us to conclude that the practitioner represented to the client that he would act for the client at no cost but subsequently raised an account for legal costs and disbursements.

74 It also follows, in these circumstances, the allegation made in VR 239 of 2005 - that the practitioner unilaterally varied the terms of the retainer in about August 2001 - cannot be sustained and this application must also be dismissed.

75 Similarly, for the same reasons, the allegation made in VR 240 of 2005 - that the practitioner acted unprofessionally by declining

(Page 17)

to transfer the file because he had earlier agreed to act on the claim at no cost to the client, cannot be sustained and that application must also be dismissed.

Lessons to be learned

76 Having made these findings, the Tribunal should however make a number of observations concerning the practices undertaken by the practitioner at material times, for we consider the evidence shows that his practice in relation to costs arrangements at material times have been far from satisfactory.

77 It was put to us by the practitioner and senior counsel for him that the practitioner had a fundamental system to provide a valuable service to clients who were members of unions. He wished to ensure that in workers' compensation matters those services were provided on a basis that would not involve the clients having to find any monies of their own, or out of their settlements, in order to meet the firm's legal costs. The practitioner was insistent that this system was understood by all in the firm and clearly explained to all clients.

78 However, any such system, which he explained was reliant upon a "collective" of employees understanding it and communicating it to all clients, is only as good as the weakest link in the system. In that regard, the practitioner's system, at all material times, depended upon the verbal or oral communication of the cost arrangements to a client. As we noted earlier, at no time in relation to this client was the client advised in writing expressly of these arrangements. That appears never to have been a feature of the system. The particular correspondence in June and August 2001, which makes reference to costs or costs arrangements, depends upon the assumption that the earlier advice was given to the client about the cost arrangements.

79 It has to be said that there is absolutely no substitute for clients being advised expressly in writing at the time a retainer is established as to arrangements about costs. The facts of this case show that a less than satisfactory practice was in place at material times in that regard.

80 It is imperative that the practitioner - indeed all legal practitioners - have in place proper procedures to ensure that at the outset, when they are retained by a client, the cost arrangements are fully and carefully explained to the client in accordance with current rules governing costs.

(Page 18)

81 We have been told by the practitioner that his practices in that regard have now changed. We trust they have, and that they will be followed scrupulously.

Conclusion and orders

82 For these reasons, we make the following orders:

1. Applications VR 238, 239 and 240 of 2005 are dismissed.

2. There will be no order as to costs, save that the practitioner is to pay the costs of the disbursements of the Committee in the order of $452.63.

83 In relation to the question of costs, we would observe that the Complaints Committee was fully justified in bringing these proceedings. It has only been following a full ventilation of the issues that the Tribunal has been able to determine that it does not have the necessary degree of satisfaction that the allegations have been made that out that and that the applications should be dismissed. It cannot be said that the Complaints Committee had no reasonable cause to bring the applications; indeed it might be said that they had every reasonable cause to do so. Nor can it be said that the Committee in any way acted with bad faith. This approach to costs in vocational proceedings has recently been confirmed and explained by the Tribunal in Medical Board of Western Australia and Roberman [2006] WASAT 152. In these circumstances, the Tribunal would not exercise any discretion to award costs in favour of the practitioner.

I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT